|CITATION||(2013) 12 SCC 73|
|COURT||Supreme Court of India|
|JUDGES/CORAM||Justice J. Chelameswar, Justice R.F. Nariman|
|DATE OF JUDGEMENT||24.03.2015|
The Supreme Court of India invalidated Section 66A of the Information Technology Act of 2000 in its entirety. The Court held that the prohibition against the dissemination of information by means of a computer resource or a communication device intended to cause annoyance; inconvenience or insult did not fall within any reasonable exceptions to the exercise of the right to freedom of expression.
The facts of the case are as follows: Police arrested two women for posting allegedly offensive and objectionable comments on Facebook about the propriety of shutting down the city of Mumbai after the death of a political leader. The police made the arrests under Section 66A of the Information Technology Act of 2000 (ITA), which punishes any person who sends through a computer resource or communication device any information that is grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred, or ill will.
Although the police later released the women and dismissed their prosecution, the incident invoked substantial media attention and criticism. The women then filed a petition, challenging the constitutional validity of Section 66A on the ground that it violates the right to freedom of expression. The Supreme Court of India initially issued an interim measure in Singhal v. Union of India, prohibiting any arrest pursuant to Section 66A unless such arrest is approved by senior police officers. In the case in hand, the Court addressed the constitutionality of the provision.
Section 66A of the Information Technology Act, 2000 came into force by virtue of an Amendment Act of 2009. The petitioner in the present writ petition has thus challenged the constitutional validity of section 66A. The petitioner has claimed that Section 66A has given rise to new forms of crimes which is incorrect. The petitioner challenges the constitutional validity of the act on the following grounds:
- It infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered in Article 19(2).
- This section in creating an offence suffers from the vice of vagueness because of which the innocent persons are roped in as offenders.
- The enforcement of the said section would really be an insidious form of censorship which impairs a core value contained in Article 19(1)(a).
- The said section infringes the rights of the individual under Articles 14 and 21 in as much there is no intelligible differentia between those who use the internet and those who by words spoken or written use their mediums of communication.
Summary of court decision and judgment
Issue 1: Whether Section 66A of the Information Technology Act is constitutionally valid or not?
Ratio: India is a sovereign, democratic and republic country as has been stated in the preamble of the Constitution. It cannot be overemphasized 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 content of the expression “freedom of speech and expression” is thus three: discussion, advocacy, and incitement. It is only when all these three contents are fulfilled that Article 19(2) is applied. Under our constitutional scheme, it is not open to the state to curtail freedom of speech to promote the general public interest. If a public order under section 19(2) is violated by a law then that law is unconstitutional and void for public order is synonymous with public safety and tranquillity. The test to identify whether the public order has been infringed or not is to ask a question: Does a particular act lead to disturbance of the current life of the community or does it merely affect an individual leaving the tranquillity of society undisturbed?
Where no reasonable standards are laid down to define guilt in a section which creates an offence and where no clear guidance is given to either law-abiding citizens or to authorities and courts, a section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable. It is quite clear that the expressions used in section 66A are completely open-ended, vague and undefined language.
Further, a prospective offender of section 66A and the authorities who are to enforce section 66A have absolutely no manageable standard by which to book a person for an offence under section 66A. Thus 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 Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of over breadth.
Additionally, there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can be created by the legislation. Thus section 66A is not discriminatory under Article 14.
Decision Held: Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).
Issue 2: Whether Section 69A and the Rules are unconstitutional?
Ratio: Section 69A is narrowly drawn provision with several safeguards. Further, the rules are also not constitutionally infirm in any manner. The rules, however, does not mention certain additional safeguards such as those found in section 95 and section 96 of CrPC but the rules cannot be said to be invalid for this very reason.
Decision Held: Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access to Information by Public) Rules 2009 are constitutionally valid.
Issue 3: Whether Section 79(3)(b) and Information Technology “Intermediary Guidelines” Rules, 2011 is constitutionally valid or not?
Decision Held: Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material. Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment.
Issue 4: Whether Section 118(d) of the Kerala Police Act is valid or not?
Decision Held: Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2).
The main issue was whether Section 66A of ITA violated the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India. As an exception to the right, Article 19(2) permits the government to impose “reasonable restrictions . . . 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 offense.”
The Petitioners argued that Section 66A was unconstitutional because its intended protection against annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, or ill-will falls outside the purview of Article 19(2). They also argued that the law was unconstitutionally vague as it fails to specifically define its prohibitions. In addition, they contended that the law has a “chilling effect” on the right to freedom of expression.
The government, on the other hand, argued that the legislature is in the best position to fulfil the needs of people and courts may interfere with legislative process only when “a statute is clearly violative of the rights conferred on the citizen under Part-III of the Constitution.” [para. 6] The government contended that mere presence of abuse of a provision may not be a ground to declare the provision as unconstitutional. Also, the government was of the opinion that loose language of the law could not be a ground for invalidity because the law is concerned with novel methods of disturbing people’s rights through internet. According to the government, vagueness cannot not a ground to declare a statute unconstitutional “if the statute is otherwise legislatively competent and non-arbitrary.” The Court first discussed three fundamental concepts in understanding the freedom of expression: discussion, advocacy, and incitement. According to the Court, “mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart” of the right. And, the law may curtail the freedom only when a discussion or advocacy amounts to incitement.
As applied to the case in hand, the Court found that Section 66A is capable of limiting all forms of internet communications as it makes no distinction “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.”
The Court further held that the law fails to establish a clear proximate relation to the protection of public order. According to the Court, the commission of an offense under Section 66A is complete by sending a message for the purpose of causing annoyance or insult. As a result, the law does not make distinction between mass dissemination and dissemination to only one person without requiring the message to have a clear tendency of disrupting public order.
As to whether Section 66A was a valid attempt to protect individuals from defamatory statements through online communications, the Court noted that the main ingredient of defamation is “injury to reputation.” It held that the law does not concern this objective because it also condemns offensive statements that may annoy or be inconvenient to an individual without affecting his reputation.
The Court also held that the government failed to show that the law intends to prevent communications that incite the commission of an offense because “the mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all.” As to petitioners’ challenge of vagueness, the Court followed the U.S. judicial precedent, which holds that “where no reasonable standards are laid down to define guilt in a Section which creates an offense, and where no clear guidance is given to either law abiding citizens or to authorities and courts, a Section which creates an offense and which is vague must be struck down as being arbitrary and unreasonable.” The Court found that Section 66A leaves many terms open-ended and undefined, therefore making the statute void for vagueness.
The Court also addressed whether Section 66A is capable of imposing chilling effect on the right to freedom of expression. It held that because the provision fails to define terms, such as inconvenience or annoyance, “a very large amount of protected and innocent speech” could be curtailed. The Court also noted the intelligible difference between information transmitted through internet and other forms of speech, which permits the government to create separate offenses related to online communications. Accordingly, the Court rejected petitioners’ argument that Section 66A was in violation of Article 14 of the Constitution against discrimination.
The Court declined to address the Petitioners’ challenge of procedural unreasonableness since the law was already declared unconstitutional on substantive grounds. It also found Section 118(d) of the Kerala Police Act to be unconstitutional as applied to Section 66A. Based on the forgoing reasons, the Court invalidated Section 66A of ITA in its entirety as it violated the right to freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India.