India: Supreme Court Of India: Crusader Of Internet Freedom

The Supreme Court of India, in what is sure to go down as an historic decision in Shreya Singhal vs. Union of India Writ Petition (Criminal) No 167 of 2012 (and various connected proceedings) has struck down the notorious Section 66-A of the Information Technology Act, 2000 (the IT Act) as being violative of the right to freedom of speech and expression enshrined in Article 19 (1) (a) of the Constitution of India (the Constitution). Much praise has been heaped on India's top court, and the decision has been lauded as being a step in the right direction towards preserving the Internet freedom of the citizens of India.

Section 66-A of the IT Act and the Challenge:

Section 66-A of the IT Act reads "Punishment for sending offensive messages through communication service, etc." and provides that any person who uses a computer device to send information that is offensive, menacing, knowingly causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will shall be punished with imprisonment for a term which may extend to three years alongwith a fine.

At the ground level, this translates into the power to arrest and imprison members of the public for freely expressing and discussing ideas and opinions which according to the government are offensive under one of the many categories set out in Section 66-A of the IT Act.

The primary contention of the Petitioners was that Section 66-A of the IT Act infringes the fundamental right to free speech and expression under Article 19 (1) (a) of the Constitution and is not saved by any of the eight restrictive subjects mentioned in Article 19 (2) of the Constitution which provides for valid and permitted restrictions to the right to freedom of speech and expression.

Restrictions on the Freedom of Speech:

After analysing and discussing at length the trail of judgments that have established the contours of the right to freedom of speech and expression in India, the court broke down the right to freedom of speech and expression into its three fundamentals – discussion, advocacy and incitement. The court observed that mere discussion or advocacy of a particular cause, howsoever unpopular it is, is at the heart of the rights under Article 19 (1) (a) of the Constitution. It is only when such discussion or advocacy reaches the level of incitement that the permitted restrictions to the freedom of speech and expression set out in Article 19 (2) of the Constitution kick in.

Of the many heads under Article 19 (2) of the Constitution, the State claimed before the court that Section 66-A of the IT Act can be supported under the heads of public order, defamation, incitement to an offence and decency or morality, and accordingly the restrictions imposed by Section 66-A of the IT Act are reasonable restrictions.

The Court's Rationale:

The court took up each limb of the State's case that Section 66-A of the IT Act falls within the contours of the restrictions permitted by Article 19 (2) of the Constitution and on each count, found the said Section to be unconstitutional and not saved by Article 19 (2) of the Constitution.

Public Order:

The court observed that the eventual touchstone on which this restriction is to be applied is whether or not the exercise of one's right to freedom of speech and expression over the internet has a "proximate relationship" to disturbing public order. The court held that the acts contemplated by Section 66-A of the IT Act are not intrinsically and necessarily those which disturb and affect tranquillity in the current life of the community and for such reasons the court held the Section has no proximate relationship to public order. The court also observed that expression of personal views over the internet are not necessarily aimed at the public at large and may even be aimed at individuals.

Defamation, Incitement to an offence and Decency or Morality:

On all counts, the apex court held that Section 66-A of the IT Act cannot be sustained. The court observed that Section 66-A of the IT Act is not by itself concerned with injury to reputation since something which may be grossly offensive, may annoy or be inconvenient to another without at all affecting his reputation. Likewise, the mere causing of annoyance, inconvenience, danger etc., or an act being grossly offensive or menacing are not, by themselves offences under the Indian Penal Code, 1860 (IPC), India's principal legislation with respect to criminal liability, and accordingly no question arises of Section 66-A of the IT Act nurturing acts that may be termed an incitement to an offence. By application of the same rationale, the court held that what may be grossly offensive or annoying under Section 66-A of the Act need not be obscene, indecent or immoral at all. In fact, the word 'obscene' is conspicuously absent from Section 66-A of the Act and accordingly, the court held that the restriction under Article 19 (2) of the Constitution cannot be relied upon on this count too.


In addition to holding that Section 66-A of the IT Act is not saved by Article 19 (2) of the Constitution, the court also held that Section 66-A of the IT Act suffers from the vice of vagueness. The court observed that while similar offences as those contemplated by Section 66-A of the IT Act are narrowly and closely defined under the IPC, the language used in Section 66-A of the IT Act, in stark contrast is open ended, undefined and vague. The court noted that the IT Act does not incorporate the offences defined under the IPC as being applicable to the IT Act.

Websites can still be blocked:

Also under challenge before the Supreme Court of India was Section 69-A of the IT Act which provides for the "power to issue directions for blocking public access of any information through any computer resource" and Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.

The court however held that the same grounds of challenge would not be applicable as Section 69-A, unlike Section 66-A of the IT Act is a narrowly drawn provision with several safeguards. Under Section 69-A of the IT Act, only the central government may determine that it is necessary that a website be blocked and can do so only upon one of the eight subjects set out in Article 19 (2) of the Constitution. For such reasons, the apex court held Section 69-A of the IT Act to be constitutionally sound.

Verdict and Public Relief:

While Section 66-A of the IT Act has long been criticised and termed as draconian, the decision of the top court in striking it down as unconstitutional cannot be underestimated or belittled. Had the decision gone any other way, the way we use the Internet would have been forced to undergo a sea change. To the relief of over a hundred million users of the Internet in India and at a time when State controlled Internet censorship is a growing concern the world over, this decision of the Supreme Court of India goes a long way in backing Internet freedom.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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