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Supreme Court Upholds Freedom of Speech Online; Strikes down Section 66A of IT Act as Unconstitutional
Mar 25, 2015

The Supreme Court struck down a controversial law that made posting offensive comments online a crime punishable by jail. The Supreme Court said the 2009 amendment to India's Information Technology Act known as Section 66A was unconstitutional and a restriction on freedom of speech.

  • The court said, Section 66A is unconstitutional and we have no hesitation in striking it down. 

  • The public's right to know is directly affected by Section 66A of the Information Technology Act.

  • Elaborating the grounds for holding the provision as unconstitutional, the Apex court 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 judgments of separate UK courts which reached different conclusions as to whether the material in question was offensive or grossly offensive.

  • The court said 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. What may be offensive to a person may not be offensive to the other.

  • The bench also rejected the assurance given by the 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.

  • The Government said unlike print and electronic media, the internet did not operate in an institutional form and there was need for some mechanism to put checks and balances.

  • The court said, Governments come and go but Section 66A will remain forever. And 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 Section 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 Section 79 provides for exemption from liability of intermediary in certain cases.

  • The SC delivered its judgment on a bunch of petitions filed in the light of misuse of the penal provision by government authorities against persons who allegedly uploaded offensive posts on social networking sites.

The petitioners, including NGOs, civil rights groups and a law student, had argued that Section 66A violated citizens' fundamental right to freedom of speech and expression. The first petition was however filed by a law student Shreya Singhal.

 


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