'Offensive' IT law struck down

Mar 25, 2015, 06:55 IST | Sailee Dhayalkar

In a landmark verdict, the Supreme Court said Section 66A of the Information Technology Act, which had provisions for arrest for posting allegedly “offensive” content, was “unconstitutional” and affects freedom of speech

What politicians couldn’t muster enough will to do, the Supreme Court did. The apex court struck down a controversial provision in the cyber law providing for arrest for posting allegedly “offensive” content on websites saying, it is “unconstitutional” and affects freedom of speech and expression.

The junked Section 66A of the Information Technology Act made any message sent through an electronic device or means punishable by fine or imprisonment, if found “offensive”, “annoying” or “inconvenient” among others. Pic/AFP
The junked Section 66A of the Information Technology Act made any message sent through an electronic device or means punishable by fine or imprisonment, if found “offensive”, “annoying” or “inconvenient” among others. Pic/AFP

The law in question is Section 66A of the Information Technology Act, which was brought through an amendment by the previous UPA government and defended by the present NDA regime. Terming liberty of thought and expression as “cardinal”, a bench of justices J Chelameswar and R F Nariman said, “The public’s right to know is directly affected by Section 66A of the Information Technology Act.”

The verdict was pronounced on a batch of petitions challenging the constitutional validity of certain sections of the cyber law. The first PIL on the issue was filed in 2012 by law student Shreya Singhal, who sought amendment in Section 66A of the Act, after two Palghar girls Shaheen Dhada and Rinu Shrinivasan were arrested for a Facebook post against the shutdown in Mumbai following Bal Thackeray’s death.

The bench said terms like “annoying”, “inconvenient” and “grossly offensive” used in the provision are vague. “Ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed, so that arbitrary and discriminatory enforcement of the law does not take place,” it said.

“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 over breadth,” the court said.

The bench also rejected the assurance given by the NDA government during the hearing that certain procedures may be laid down to ensure that the law in question is not abused. “Governments may come and governments may go but Section 66A goes on forever. An assurance from the present government, even if carried out faithfully, would not bind any successor government.

It must, therefore, be held that Section 66A must be judged on its own merits without any reference to how well it may be administered,” Justice Nariman said. Dhananjay Kulkarni, spokesman for Mumbai police, said they would be able to comment on the matter only after studying the court order.

Arrested for 'offensive' content

Cartoonist arrested for sedition: Political cartoonist Aseem Trivedi was charged under Section 124A (sedition) of the Indian Penal Code, the Prevention of Insults to National Honour Act and Section 66A of the IT Act in September 2012 after he drew a cartoon depicting the Parliament as a toilet and showed the national emblem with wolves, instead of lions. “It is one of the biggest decisions taken in recent times. Social media is a tool for the common man to express himself. Had the Supreme Court not come out with this ruling, many others would’ve been a victim of this section,” Trivedi said.

Cops don’t ‘like’ it: Two girls from Palghar, Shaheen Dhada, and her friend, Rinu Shrinivasan, were arrested for questioning the shutdown of the city after Bal Thackeray died. Dadha had written the post while Shrinivasan had liked it. A local Shiv Sena leader had complained against both the girls and police arrested the duo and charged them under Section 66A of the IT Act.

Air India crew jailed: Mayank Mohan Sharma and KVJ Rao, two cabin crew members of the national carrier, were arrested by the Cyber Crime cell of the Mumbai police in May 2011 for allegedly sharing ‘lewd’ jokes about politicians, making derogatory comments against the prime minister and insulting the national flag. Cops charged them under Section 66A and Section 67 of the IT Act and the duo spent 12 days in jail and was suspended till charges against them were dropped.

Morphing Uddhav’s face: Charkop police registered a case in August last year against a man who posted a morphed picture of Shiv Sena chief Uddhav Thackeray on Facebook. Ramesh Lohkare, assistant commissioner of police, said, “A youth posted a photograph of Uddhav Thackeray with a chameleon’s face on it and posted unsavoury comments below it. A party worker brought it to our notice and we registered the case. We verified the Facebook account with the help of the Cyber Crime cell. The accused is yet to be traced.”

Lawyer speak

Technology should be used in a good way. People indulging in its misuse should first be warned, and legal action should be taken at later stages.
Rohini Salian, special public prosecutor

I appreciate this judgement as it speaks about freedom of speech. 
Majeed Memon, senior lawyer

This highly elastic section is capable of various interpretations and misuse so as to harass common citizens. I welcome this decision.
Aabad Ponda, senior lawyer

This decision has put the brakes on VIP culture of our ministers. Our country has the maximum number of youth and nobody can limit them. Social media is tool for common people to express themselves.
Sudhir Gupta, lawyer for the Palghar girls

Politician speak

We stand for freedom of speech and expression, while the previous UPA government tried to make this law an instrument to curb dissent, satire and anything else that didn’t suit it.
Ravi Shankar Prasad, Communications and IT minister

I welcome the judgement. The section was poorly drafted and was vulnerable. It was capable of being misused and, in fact, it was misused.
P Chidambaram, UPA minister

With this order, there will be nothing in the hands of the police. Social media is being misused in our country. There should be something to strengthen the hands of law enforcing agencies. This (issue) requires a debate.
Sanjay Raut, Rajya Sabha MP, Shiv Sena

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