It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.
The Indian Supreme Court has invalidated Section 66A of the Information Technology Act, under which hundreds of citizens have been indicted and jailed since 2009 for posting supposedly “offensive” messages on the Internet or social media sites, as an unconstitutional infringement of speech.
Justices J. Chelameswar and Rohinton F. Nariman wrote: “It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.”
The Court reaffirmed the central tenet of free speech in the country’s democratic enterprise: “It cannot be over emphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.”
The Court ruled that offensive communications that “annoy or cause inconvenience to others” may be restricted only when they rise to the level of incitement to public disorder. It concluded that under Section 66A “no distinction is made between mere discussion or advocacy of a particular point of view which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, security of State, etc.” Indeed, Section 66A, was “cast so widely that virtually any opinion on any subject would be covered by it.”
As a result, it ruled: “The information disseminated over the Internet need not be information which ‘incites’ anybody at all. Written words may be sent that may be purely in the realm of ‘discussion’ or ‘advocacy’ of a ‘particular point of view’. Further, the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the [Indian] Penal Code at all.”
The court also faulted the law for being overbroad and its definition of offences as “open-ended, undefined and vague.” The justices wrote: “Every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.”
The misguided law was bulldozed through without debate in Parliament in December 2008, in knee jerk response to the Mumbai terrorist attacks. In recent years it has been used by powerful politicians to intimidate and muzzle their critics, often for innocuous comments.
A Jadavpur University professor Ambikesh Mahapatra was arrested under the law for distributing caricatures of Trinamool Congress chief Mamata Banerjee on Facebook. Two young girls were jailed in Maharashtra for ridiculing the shutdown of Mumbai for the funeral of Shiv Sena chief Bal Thackeray. Activist Aseem Trivedi was charged with lampooning Parliament and the Constitution on his website Cartoons Against Corruption. Puducherry businessman Ravi Srinivasan was picked up for tweeting about the wealth of Karti Chidambaram, son of former Finance Minister P Chidambaram. In mid-March a Class XI student in Bareilly was jailed for a tweet that UP Minister Azam Khan found offensive.
Social commentators can hopefully now breathe easier as a result of the Supreme Court’s ruling. As Mahapatra, who fell into Mamata Banerjee’s crosshairs, commented, “This verdict will surely remove the fear psychosis among internet users that they may get arrested even for innocuous acts.”
However liberating though the Supreme Court ruling may be, free speech in India continues to be muzzled by scores of other equally draconian laws. Even in this case, the Supreme Court let stand sections 69A and 79 of the Act, which allow government officials to block websites ostensibly in the interests of national security, friendly relations with other countries or public order. In recent years the government and — even more ominously — vigilante groups have banned books, intimidated authors and artists, and most recently blocked the broadcast of a documentary India’s Daughters on a brutal gang rape in Delhi.
Two months ago a Tamil Nadu writers group sought intervention of the Madras High Court after Tamil author Perumal Murugan, who was being hounded by Hindutva vigilantes for passages in his book Madhorubhagan, fled his village, renounced writing and declared that “Perumal Murugan, the writer is dead.” The court noted ruefully: “Our largest concern is extrajudicial groups wielding power to decide what is right and what is not right, and asking authors what to write and what not to write.”
Section 66A of the Information Technology Act, 2000
Punishment for sending offensive messages through communication service, etc.
66A. Any person who sends, by means of a computer resource or a communication device,-
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation.- For the purposes of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.
Article 19 in The Constitution Of India 1949
19. Protection of certain rights regarding freedom of speech, etc.
(1) All citizens shall have the right
(a) to freedom of speech and expression;
(2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence