SC strikes down Sec 66A of IT Act, calls it unconstitutional

The Supreme Court on Tuesday quashed the controversial Section 66A of the Information Technology (IT) Act, which criminalizes “causing annoyance or inconvenience” online or electronically, stating violation of the fundamental right of freedom of expression guaranteed in the Constition of India under Article 19(1) A. 

The Court said that the provision under Section 66A, which has been a subject of several arrests in the past few years after it was introduced in 2000, is vague and imprecise. Every citizen has a right to know information and a particular content maybe be annoying or inconvenient to someone but that doesn’t mean that the right to information should be curtailed, the judged said.

Article 19 (2) of the Constitution allows for some restriction on the right to information but the Section 66A does not come within the permitted restrictions, the Court said. The government’s law officers had earlier assured the Court that it will apply the section 66A in a reasonable manner, however a long judgement by judge RF Nariman said that governments come and go and the new government may not stand by the assurance given by the past one. 

The Centre has been arguing that quashing 66a completely will not be right since it needs some mechanism to exercise some control over the content shared on the Internet, which can be subject to abusive and potentially damaging. After Tuesday’s judgement, it is not clear if the government is left with any options. 

“There is rule of law and rule by the law. The Supreme Court has shown that it is with the times, tech-savvy and ready to stand up and uphold the constitutional principles that make India the celebrated democracy. This is how Digital India will be made in India,” said Mishi Choudhary, executive director, Software Freedom Law Centre India. She is also the legal counsel of Faisal Farooqi, CEO of Mouthshut, which is one the parties contesting the provision. 

The first Public Interest Litigation (PIL) against Section 66A was filed by a then 21-year-old student Shreya Singhal in 2012. Her petition had stated that “the phraseology of section 66A of the IT Act, 2000, is so wide and vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse and, hence, falls foul of Article 14, 19 (1)(a) and Article 21 of the Constitution.” Singhal also argued that “unless there is judicial sanction as a prerequisite to the setting into motion the criminal law with respect to freedom of speech and expression, the law as it stands is highly susceptible to abuse and for muzzling free speech in the country.”

There were several incidents a few years ago, which sparked outcry against the Section 66A. While the Maharashtra government arrested two girls in Palghar near Mumbai for criticizing on Facebook the shutdown in the city for Shiv Sena chief Bal Thackeray’s funeral, a businessman in Puducherry was arrested for comments made on Twitter against finance minister P. Chidambaram’s son Karti Chidambaram.

There was also an incident in which, Ambikesh Mahapatra, a professor of chemistry from Jadavpur University in West Bengal was arrested for posting a cartoon depicting chief minister Mamata Banerjee on a social networking site and another one involving arrests of two Air India Ltd employees.

Post these incidents, the government strengthened the enforcement of the law by mandating that complaints under this Section can be registered only with the permission of an officer of or above the rank of deputy commissioner of police, and inspector general in metro cities. Though the government has managed to curtail the number of arrests under 66A since then, champions of Internet continue to voice concerns against it saying that it being used by the politicians as a weapon to curb criticism online.