Supreme Court Strikes Down S.66A of Information Technology Act as Unconstitutional

Shreya Singhal vs. Union of India[1]

Supreme Court in its landmark judgment, Shreya Singhal vs. Union of India on March 24, 2015, struck the Section 66A of the Information Technology Act (“Act“) which provided punishment for sending offensive messages through communication service, including internet. It is to be noted that Section 66A was not in the Act as originally enacted, but came into force by virtue of an Amendment Act of 2009 with effect from 27.10.2009.

Judgment in Brief

Supreme Court in this case held that Section 66A severely curtails information that may be sent on the internet. Section 66A, not being saved under Article 19(2), must, therefore, fall foul of Article 19(1)(a), be declared as unconstitutional. 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. It further held that Section 66A has nothing to do with “incitement to an offence” and it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates. The Apex Court observed that there is no demarcating line conveyed by any of the expressions used in this Section and this is what renders the Section unconstitutionally vague. It further held that Section 66A 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. As regards severability, it was held that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional. The division bench of Supreme Court, presided by Justice R.F. Nariman and J. Chelameswar upheld the provisions and the guidelines making intermediaries liable for removing objectionable content on being notified by the government.

We present you a brief summary of the 122 pages’ judgment pronounced by Supreme Court on March 24, 2015.

Key Contentions of the Petitioner:

1. Section 66A of the Act infringes the fundamental right to free speech and expression and is not saved by any of the eight exceptions covered in Article 19(2) as causing of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will are all outside the purview of Article 19(2).
2. Rights under Articles 14 is breached inasmuch there is no intelligible differentia between those who use the internet and those who use other mediums of communication. To punish somebody because he uses a particular medium of communication is itself discriminatory and would fall foul of Article 14.

Key Contentions of the Additional Solicitor General:

1. Mere possibility of abuse of a provision cannot be a ground to declare a provision invalid. Vagueness cannot be a ground to declare a statute unconstitutional if the statute is otherwise legislatively competent and non-arbitrary.
2. There is a presumption in favour of the constitutionality and the Court will interfere with the legislative process only when a statute is clearly violative of the rights conferred on the citizen under Part-III of the Constitution.
3. Doctrine of Severability should apply to Section66A of the Act.

Supreme Court held–

1. Freedom of speech & Expression and Section 66A. There are three concepts which are fundamental in understanding the reach of “freedom of speech and expression”, viz. discussion, advocacy, and incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, etc. Under Section 66A, the requirement that the information sent has to be annoying, inconvenient, grossly offensive etc., shows that 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. Firstly, the information disseminated over the internet need not be information which “incites” anybody at all. Further, 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. They may be ingredients of certain offences under the Penal Code but are not offences in themselves. For these reasons, Section 66A has nothing to do with “incitement to an offence”.

2. Article 19 & Section 66A: As Section 66A severely curtails information that may be sent on the internet based on whether it is grossly offensive, annoying, inconvenient, etc. and being unrelated to any of the eight subject matters under Article 19(2) must, therefore, fall foul of Article 19(1)(a), and not being saved under Article 19(2), and is thus unconstitutional. 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.

3. Article 14 and Intelligible Differentia. There does exist an intelligible differentia between those who use the internet and those who use other mediums of communication for which separate offences can certainly be created by legislation. The intelligible differentia is that unlike other medium of communication,  internet gives any individual a platform which requires very little or no payment through which to air his views. Such differentia bears a rational relation to the object sought to be achieved – that there can be creation of offences which are applied to free speech over the internet alone as opposed to other mediums of communication. Therefore, the challenge on the ground of Article 14 must fail.

4. Public Order & Section 66A. Section 66A makes no distinction between mass dissemination and dissemination to one person. Further, the Section does not require that such message should have a clear tendency to disrupt public order. Such message need not have any potential which could disturb the community at large. The nexus between the message and action that may be taken based on the message is conspicuously absent – there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility. On all these counts, it is clear that the Section has no proximate relationship to public order. Viewed at either by the standpoint of the clear and present danger test or the tendency to create public disorder, Section 66A would not pass muster as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates.

5. Defamation & Section 66A. For something to be defamatory, injury to reputation is a basic ingredient. Section 66A does not concern itself with injury to reputation. Something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation. It is clear therefore that the Section is not aimed at defamatory statements at all.

6. Decency or Morality & Section 66A. Section 66A cannot possibly be said to create an offence which falls within the expression ‘decency’ or ‘morality’ in that what may be grossly offensive or annoying under the Section need not be obscene at all – in fact the word ‘obscene’ is conspicuous by its absence in Section 66A.

7. Vagueness under Section 66A in contrast with IPC . In all computer related offences that are spoken of by Section 66, mens rea is an ingredient and the expression “dishonestly” and “fraudulently” are defined with some degree of specificity, unlike the expressions used in Section 66A. Whereas, in Section 268 of IPC, the various expressions used are ingredients for the offence of a public nuisance, these ingredients now become offences in themselves when it comes to Section 66A. A further ingredient is that injury, danger or annoyance must be to the public in general. Injury, danger or annoyance are not offences by themselves howsoever made and to whomsoever made. Such narrowly and closely defined contours of offences made out under the Penal Code are conspicuous by their absence in Section 66A which in stark contrast uses completely open ended, undefined and vague language. Incidentally, none of the expressions used in Section 66A are defined. Even the expression “persistently” is completely imprecise. There is no demarcating line conveyed by any of these expressions – and that is what renders the Section unconstitutionally vague.

8. Chilling Effect and Overbreadth. Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. It is thus clear that not only are the expressions used in Section 66A expressions of inexactitude but they are also over broad and would fall foul of the repeated injunctions of this Court that restrictions on the freedom of speech must be couched in the narrowest possible terms. 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 overbreadth.

9. Applicability of Doctrine of Severability. Section 66A does not fall within any of the subject matters contained in Article 19(2) and the possibility of its being applied for purposes outside those subject matters is clear. Therefore no part of Section 66A is severable and the provision as a whole must be declared unconstitutional.

Conclusion: Section 66A of the Information Technology Act, 2000 was struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).

Full Text here

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[1] Writ Petition (Criminal) No.167 Of 2012