Landmark judgement by SC; strikes down Section 66(A) of IT Act

In a landmark judgement upholding freedom of expression, the Supreme Court on Tuesday struck down a provision in the cyber law which provides power to arrest a person for posting allegedly "offensive" content on websites.

Terming liberty of thought and expression as "cardinal", a bench of justices J Chelameswar and R F Nariman said, "The public's right to know is directly affected by section 66A of the Information Technology Act." Justice Nariman, who pronounced the verdict in a packed court room, also said that the provision "clearly affects" the fundamental right to freedom of speech and expression enshrined under the Constitution.

Elaborating the grounds for holding the provision as "unconstitutional", it said terms like "annoying", "inconvenient" and "grossly offensive", used in the provision are vague as it is difficult for the law enforcement agency and the offender to know the ingredients of the offence. The bench also referred to two judgements of separate UK courts which reached different conclusions as to whether the material in question was offensive or grossly offensive.

"When judicially trained minds can reach on different conclusions" while going through the same content, then how is it possible for law enforcement agency and others to decide as to what is offensive and what is grossly offensive, the bench said, adding, "What may be offensive to a person may not be offensive to the other". The bench also rejected the assurance given by NDA government during the hearing that certain procedures may be laid down to ensure that the law in question is not abused.

The government had also said that it will not misuse the provision. "Governments come and go but section 66A will remain forever," the bench said, adding the present government cannot give an undertaking about its successor that they will not abuse the same. The bench, however, did not strike down two other provisions- sections 69A and 79 of the IT Act- and said that they can remain enforced with certain restrictions.

18:11 IST Tuesday, 24 March 2015

Reacting to the Supreme Court judgement striking down Section 66(A) of the Information Technology Act, Communications and IT Minister Ravi Shankar Prasad said if the security establishment feels there is need to consider certain aspects in the light of the order, these shall be considered in a proper structured way with due safeguards so that the constitutional rights are not frustrated.

"There can be no parallel of our stand on this matter with that of the previous UPA regime. We have in writing confirmed that we stand for freedom of speech and expression, while the previous UPA government tried to make this law an instrument to curb dissent, satire and anything else which did not suit it," he told reporters.

17:23 IST Tuesday, 24 March 2015

Government, whose counsel had defended the constitutional validity of Section 66A of IT Act, today maintained that it respects freedom of speech and expression and is not in favour curbing dissent on social media.

At the same time, it said it had conveyed a request to the court that government is willing to come out with additional, more stringent guidelines so as to prevent abuse of Section 66A of the Act which allows arrest of a person for posting allegedly "offensive" content on websites.

"Our government led by Prime Minister Narendra Modi took a very conscious decision that we don't support the stand of the previous government. "We respect the freedom of speech and expression. We respect communication of ideas on social media and we are not in favour of curtailing communication of honest dissent, opinion, disapproval or criticism on social media," Union IT Minister Ravi Shankar Prasad said.

In his initial comments on the Supreme Court verdict, he said the government had stressed that it will not support any interpretation of Section 66A of IT Act that curtails the ideas of freedom of speech and expression enshrined under Article 19(1) of the Constitution.

"It is very important to be noted that in our affidavit filed, apart from reiterating our new position on behalf of Government of India, we have clearly conveyed that if Section 66A of the IT Act cannot be interpreted in consonance with Article 19(1) read with Article 19(2), then we don't support that interpretation at all," he said.

15:57 IST Tuesday, 24 March 2015

 Congress today admitted that Section 66A of cyber law, introduced by the UPA regime in 2008, was poorly drafted and vulnerable to misuse after the provision was struck down by the Supreme Court. The party, however, tried to deflect criticism by targeting Modi government on its stand in the court on the provision which allows arrest of a person for posting allegedly offensive content on websites.

Congress leader P Chidambaram welcomed the Supreme Court judgement holding Section 66A of the IT Act as unconstitutional. "I welcome the judgement of the Supreme Court holding that Section 66A of the IT Act is unconstitutional. "The section was poorly drafted and was vulnerable. It was capable of being misused and, in fact, it was misused," he said.

The former Union Minister, who held the Home and Finance portfolios in UPA government, said there could be a case of misuse of freedom of speech and in such cases ordinary laws should apply and the offender should be dealt with under them. "If some provisions of the law have to be strengthened, that could be considered. But Section 66A was not the answer," Chidambaram said.

14:27 IST Tuesday, 24 March 2015

 Aam Aadmi Party (AAP) leader Prashant Bhushan on Tuesday said that the Supreme Court's decision to strike down the controversial Section 66A of the IT Act was essential as it was extremely ‘vague’. 

“It is a very essential judgment. People were being victimized due to a law which was very vague,” said Bhushan. 

12:57 IST Tuesday, 24 March 2015

Law Minister Ravi Shankar Prasad has welcomed SC's decision to scrap 66A. He said:

We respect communication of ideas on social media,not in favor of curtailing honest criticism,dissent on social media: RS Prasad #Sec66A

— ANI (@ANI_news) March 24, 2015

1/2 We conveyed,if article #Sec66A can't be interpreted in consonance with article 19()1 read with 19(2): RS Prasad pic.twitter.com/HKkFErZehj

— ANI (@ANI_news) March 24, 2015

2/2..then we do not support that interpretation at all: Union Minister Ravi Shankar Prasad #Sec66A

— ANI (@ANI_news) March 24, 2015

A #Sec66A which is out of provision of 19(1) and 19(2), we were against this. This was our stand: RS Prasad

— ANI (@ANI_news) March 24, 2015

 

12:18 IST Tuesday, 24 March 2015

BJP spokesperson Nalin Kohli has also welcomed the decision. Kohli said, 

Landmark day for freedom of speech & expression, article 19(2) has been reaffirmed: Nalin Kohli, BJP on SC strikes down #Sec66A

— ANI (@ANI_news) March 24, 2015

 Shiv Sena has given a guarded reaction to SC scrapping 66A. 

A girl posted comments on internet after sad demise of Balasaheb in Palghar...cntd: Sanjay Raut, SS #Sec66A pic.twitter.com/o87RWt1VE3

— ANI (@ANI_news) March 24, 2015

Social media does have positive impact, but it's also being misused, police must have some powers in their hands: Sanjay Raut, Shiv Sena

— ANI (@ANI_news) March 24, 2015

11:37 IST Tuesday, 24 March 2015

Former Information and Broadcasting Minister Manish Tiwary has welcomed the judgment. He said that the law was misused too often and hence it needed to go. He said that the law is antithesis of freedom and expression. 

11:26 IST Tuesday, 24 March 2015

 Rinu Srinivasan, one of the girls who was arrested under the section for a Facebook post on Bal Thackeray welcome the decision of Supreme Court. She said, "If this law is repealed it may encourage people to speak up and against all the wrong in the world".  "I am very happy. I feel like we have received justice after two years," she said.

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A bench of justices J Chelameswar and R F Nariman had on February 26 reserved its judgement after Government concluded its arguments contending that section 66A of the Information Technology Act cannot be "quashed" merely because of the possibility of its "abuse".

Additional Solicitor General Tushar Mehta had said that the Government did not want to curtail the freedom of speech and expression at all which is enshrined in the Constitution, but the vast cyber world could not be allowed to remain unregulated.

However, the court had said that terms like 'illegal', 'grossly offensive' and 'menacing character' were vague expressions and these words were likely to be misunderstood and abused. Some of the petitions seek setting aside of section 66A of the Information Technology Act which empowers police to arrest a person for allegedly posting offensive materials on social networking sites.

The first PIL on the issue was filed in 2012 by a law student Shreya Singhal, who sought amendment in Section 66A of the Act, after two girls -- Shaheen Dhada and Rinu Shrinivasan -- were arrested in Palghar in Thane district as one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray's death and the other 'liked' it.

The apex court had on May 16, 2013, come out with an advisory that a person, accused of posting objectionable comments on social networking sites, cannot be arrested without police getting permission from senior officers like IG or DCP.

The direction had come in the wake of numerous complaints of harassment and arrests, sparking public outrage. It had, however, refused to pass an interim order for a blanket ban on the arrest of such persons across the country.

With agency inputs