A requiem for section 66A

As netizens cheer the upholding of their constitutional rights, Abhishek Malhotra analyzes a ruling that prompted it

“Knock! Knock!”

“Who’s there?”

“The police. We are here to arrest you for violation of section 66A of the Information Technology Act.”

“Why?”

“You posted a comment on your Facebook page regarding ____. It was offensive and caused annoyance and inconvenience.”

The collective consciousness of the people of India was shocked by instances of such arrests. Freedom of speech and expression is a revered fundamental right guaranteed by the state under article 19(1)(a) of the Constitution of India, which states that all citizens shall have the right to freedom of speech and expression.

The only limitation on this right is provided in article 19(2), which states: “Nothing … shall affect the operation of any existing law, or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause 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 offence.”

Thus, the question before the Supreme Court in the constitutional challenge to section 66A of the Information Technology Act, 2000, was did it qualify as a reasonable restriction on the freedom of speech and expression.

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On 24 March, the Supreme Court, speaking through Justice RF Nariman, came to the conclusion that 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”. Declaring it unconstitutional, the court reviewed relevant precedents it had set as well as leading decisions on the freedom of speech and expression from the US Supreme Court and courts in the UK.

Additional grounds on which the section was struck down was 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”. The court also held that the constitutional challenge requires the provision to be viewed on its own merits and without any reference to how well it may be administered.

The court also dismissed the additional solicitor general’s request that parts of the provision that seem to be unconstitutional be severed from it, so as to not strike down section 66A completely.

However, the court negated the petitioner’s contention that the legislature cannot distinguish between different types of media while legislating on offences. It also refused to rule on whether the provision was beset by the vice of procedural unreasonableness, inasmuch as the safeguards that are usually available under criminal statutes relating, for example, to the offence of defamation, are not available if the complaint of defamation is made under section 66A.

The petitioners had also challenged provisions relating to the blocking of content. The court did not entertain it, thus permitting the blocking of content that falls foul of section 69A.

A challenge to the safe harbour provided to an intermediary under section 79 was also negated, subject to section 79(3) being “read down”. This sub-section took away the safe harbour protection, when an intermediary failed to act upon a directive from the government or a person to block access to content that attracted the heads of article 19(2). The court held that section 79 would be watered down to instances where the intermediary fails to act 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”.

From a constitutional law perspective, the highlight of the ruling is the comparison of the law on freedom of speech and expression in India with those in the US and the UK. The court said: “Both the US and India protect the freedom of speech and expression as well as press freedom. … In the US, if there is a compelling necessity to achieve an important governmental or societal goal, a law abridging freedom of speech may pass muster. But in India, such law cannot pass muster if it is in the interest of the general public. Such law has to be covered by one of the eight subject matters set out under article 19(2). If it does not, and is outside the pale of 19(2), Indian courts will strike down such law”.

While the government has indicated that it will replace section 66A with a more reasonable and constitutionally acceptable provision, the jury is out on how it will be perceived. Meanwhile netizens are celebrating the absence of the ominous knock on the door.

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Abhishek Malhotra is the managing partner of TMT Law Practice.