In a landmark judgment upholding freedom of expression, the Supreme Court has struck down Section 66A of the amended Indian Information Technology Act, 2000 (“IT Act”), a provision in the cyber law which provides power to arrest a person for posting allegedly "offensive" content on websites. The apex court ruled that the section falls outside Article 19(2) of the Constitution, which relates to freedom of speech, and thus has to be struck down in its entirety.

Section 66A of the IT Act defines the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction can fetch a maximum of three years in jail and a fine.

The advent of the controversy

The first petition came up in the court following the arrest of two girls in Maharashtra by Thane Police in November 2012 over a Facebook post. The girls had made comments on the shutdown of Mumbai for the funeral of Shiv Sena chief Bal Thackeray. The arrests triggered outrage from all quarters over the manner in which the cyber law was used. Most cases of arrest were reported in 2012. Jadavpur University professor Ambikesh Mahapatra was arrested for forwarding caricatures on Trinamool Congress chief Mamata Banerjee on Facebook. Activist Aseem Trivedi was arrested for drawing cartoons lampooning parliament and the constitution to depict their ineffectiveness.

The grounds for the challenge

While the objective behind the amendment was to prevent the misuse of information technology, particularly through social media, Section 66A came with extremely wide parameters, which allowed whimsical interpretationof the provision by law enforcement agencies. Most of the terms used in the section have not been specifically defined under the IT Act. The petitioners argued that it was a potential tool to curtail freedom of speech and expression guaranteed under the Constitution and going far beyond the ambit of “reasonable restrictions” on that freedom.

Validity struck down

Given the above debate, the Supreme Court has struck a body blow for the basic right of free expression by striking down this provision in its entirety. The Hon’ble Supreme Court observed,

Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”

The Hon’ble Supreme striking down the validity of Section 66A of the IT Act held, “We, therefore, hold that the Section is unconstitutional also on the ground 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.”


VA View

Section 66A of the IT Act as it stood was so vague that law enforcement authorities could, and did, interpret opinions liberally in a manner as being worthy of putting citizens behind bars. It would, on the whole, be fair to say that with this ruling, India, which is a democracy in progress, took a solid step towards the maturing of democratic principles.