Supreme Court strikes down section 66A of IT Act

New Delhi

In a landmark judgement upholding freedom of expression, the Supreme Court of India 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.

Section 69A provides power to issue directions to block public access of any information through any computer resource and 79 provides for exemption from liability of intermediary in certain cases. .

Govt says it”s not in favour of curbing dissent on socialmedia

New Delhi

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.

Though Prasad said he will come with a structured response once he reads the entire judgement that runs into 200 pages, he said, on government’s instruction the additional Solicitor General Tushar Mehta also conveyed a request to the bench that “government is willing to come out with additional more stringent guidelines so as to prevent abuse of Section 66A of the Act”.

“I am awaiting the judgement. The Government of India’s stand is quite different from the previous government’s and it has been very clear and consistent which I have just mentioned. I will come with a structured response after going through the judgement,” he said.