Edited excerpts from the Supreme Court’s judgment striking down Section 66A of the Information Technology Act in the case of Writ Petition (Criminal) No 167 of 2012
FREEDOM OF SPEECH AND EXPRESSION The Preamble of the Constitution of India inter alia speaks of liberty of thought, expression, belief, faith and worship. It also says that India is a sovereign democratic republic. It cannot be over-emphasised that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.
Equally, in S. Khushboo vs Kanniamal & Anr, (2010) 5 SCC 600this Court stated, in paragraph 45 that the importance of freedom of speech and expression though not absolute was necessary as we need to tolerate unpopular views. This right requires the free flow of opinions and ideas essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance, the culture ofopen dialogue is generally of great societal importance.
This last judgment is important in that it refers to the “marketplace of ideas” concept that has permeated American Law. This was put in the felicitous words of Justice Holmes in his famous dissent in Abrams vs United States, 250 US 616 (1919), thus: “But when men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”
This leads us to a discussion of what is the content of the expression “freedom of speech and expression”. There are three concepts which are fundamental in understanding the reach of this most basic of human rights. The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. It is at this stage that a law may be made curtailing the speech or expression that leads inexorably to or tends to cause public disorder or tends to cause or tends to affect the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, etc.
ARTICLE 19(1)(A) It is clear that the right of the people to know — the marketplace of ideas — which the internet provides to persons of all kinds is what attracts Section 66A. That theinformation sent has to be annoying, inconvenient, grossly offensive, etc, also shows that no distinction is made between mere discussion or advocacy of a particular point of view, which may be annoying or inconvenient or grossly offensive to some, and incitement by which such words lead to an imminent causal connection with public disorder, security of state, etc. The petitioners are right in saying that Section 66A, in creating an offence against persons who use the internet and annoy or cause inconvenience to others, very clearly affects the freedom of speech and expression of the citizenry of India at large in that such speech or expression is directly curbed by the creation of the offence contained in Section 66A.
In this regard, the observations of Justice Jackson in American CommunicationsAssociation vs Douds, 94 L. Ed. 925 are apposite: “Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Governmentto keep the citizen from falling into error; it is the function of the citizen to keep theGovernment from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored.”
REASONABLE RESTRICTIONS As stated, all the above factors may make a distinction between the print and other media as opposed to the internet and the legislature may well, therefore, provide for separate offences so far as free speech over the internet is concerned. There is, therefore, an intelligible differentia having a rational relation to the object sought to be achieved — that there can be 31 relation of offences which are applied to freespeech over the internet alone, as opposed to other mediums of communication. Thus, an Article 14 challenge has been repelled by us on this ground later in this judgment. But we do not find anything in the features outlined by the learned additional solicitor general to relax the court’s scrutiny of the curbing of the content of free speech over the internet. While it may be possible to narrowly draw a section creating a new offence, such as Section 69A for instance, relatable only to speech over the internet, yet the validity of such a law will have to be tested on the touchstone of the tests already indicated above.
In fact, this aspect was considered in Secretary Ministry of Information & Broadcasting, Government of India vs Cricket Association of Bengal, (1995) 2 SCC 161: “…If the right to freedom of speech and expression includes the right to disseminateinformation to as wide a section of the population as is possible, the access which enables the right to be so exercised is also an integral part of the said right. The wider range of circulation of information or its greater impact cannot restrict the content of the right, nor can it justify its denial. The virtues of the electronic media cannot become its enemies. It may warrant a greater regulation over licensing and control and vigilance on the content of the programme telecast. However, this control can only be exercised within the framework of Article 19(2) and the dictates of public interests. To plead for other grounds is to plead for unconstitutional measures…”
PUBLIC ORDER We have to ask ourselves the question: Does a particular act lead to disturbance of the current life of the community or does it merely affect an individual leaving the tranquillity of society undisturbed? Going by this test, it is clear that Section 66A is intended to punish any person who uses the internet to disseminate anyinformation that falls within the sub-clauses of Section 66A. It will be immediately noticed that the recipient of the written word that is sent by the person who is accused of the offence is not of any importance so far as this section is concerned. (Save and except where under sub-clause (c) the addressee or recipient is deceived or misled about the origin of a particular message.)
It is clear, therefore, that the information that is disseminated may be to one individual or several individuals. The section makes no distinction between mass dissemination and dissemination to one person. Further, the section does not require that such message should have a clear tendency to disrupt public order. Such message need not have any potential which could disturb the community at large. The nexus between the message and action that may be taken based on the message is conspicuously absent — there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility. On all these counts, it is clear that the section has no proximate relationship to public orderwhatsoever. The example of a guest at a hotel ‘annoying’ girls is telling — this Court has held that mere ‘annoyance’ need not cause disturbance of public order. Under Section 66A, the offence is complete by sending a message for the purpose of causing annoyance, either ‘persistently’ or otherwise without in any manner impacting public order.
CLEAR AND PRESENT DANGER — TENDENCY TO AFFECT Viewed at either by the standpoint of the clear and present danger test or the tendency to create public disorder, Section 66A would not pass muster, as it has no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it creates.
DEFAMATION It will be noticed that for something to be defamatory, injury to reputation is a basicingredient. Section 66A does not concern itself with injury to reputation. Something may be grossly offensive and may annoy or be inconvenient to somebody without atall affecting his reputation. It is clear, therefore, that the section is not aimed at defamatory statements at all.
INCITEMENT TO AN OFFENCE Equally, Section 66A has no proximate connection with incitement to commit an offence. Firstly, the information disseminated over the internet need not beinformation which “incites” anybody at all. Written words may be sent that may be purely in the realm of “discussion” or “advocacy” of a “particular point of view”. Further, the mere causing of annoyance, inconvenience, danger, etc, or being grossly offensive or having a menacing character, are not offences under the Penal Code at all. They may be ingredients of certain offences under the Penal Code but are not offences in themselves. For these reasons, Section 66A has nothing to do with “incitement to an offence”. As Section 66A severely curtails information that may be sent on the internet based on whether it is grossly offensive, annoying, inconvenient, etc, and being unrelated to any of the eight subject matters under Article 19(2) must, therefore, fall foul of Article 19(1)(a), and not being saved under Article 19(2), is declared as unconstitutional.
DECENCY OR MORALITY What has been said with regard to public order and incitement to an offence equally applies here. Section 66A cannot possibly be said to create an offence which falls within the expression ‘decency’ or ‘morality’ in that what may be grossly offensive or annoying under the section need not be obscene at all — in fact the word ‘obscene’ is conspicuous by its absence in Section 66A.
VAGUENESS Incidentally, none of the expressions used in Section 66A are defined. Even “criminal intimidation” is not defined — and the definition clause of the InformationTechnology Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this act.
Quite apart from this, as has been pointed out above, every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. Even the expression “persistently” is completely imprecise — suppose a message is sent thrice, can it be said that it was sent “persistently”? Does a message have to be sent (say) at least eight times, before itcan be said that such message is “persistently” sent? There is no demarcating line conveyed by any of these expressions — and that is what renders the section unconstitutionally vague.
If judicially trained minds can come to diametrically opposite conclusions on the same set of facts, it is obvious that expressions such as “grossly offensive” or “menacing” are so vague that there is no manageable standard by which a person can be said to have committed an offence or not to have committed an offence. Quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A. This being the case, having regard also to the two English precedents cited by the learned additional solicitor general, it is clear that Section 66A is unconstitutionally vague. Ultimately, applying the tests referred to in Chintaman Rao and V.G. Row’s case, referred to earlier in the judgment, it is clear 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.
CHILLING EFFECT AND OVERBREADTH Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech. A person may discuss or even advocate by means of writing disseminated over the internet information that may be a view or point of view pertaining to governmental, literary, scientific or other matters which may be unpalatable to certain sections of society. It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or may be grossly offensive to some. A few examples will suffice. A certain section of a particular community may be grossly offended or annoyed by communications over the internet by “liberal views” — such as the emancipation of women or the abolition of the caste system or whether certain members of a non-proselytising religion should be allowed to bring persons within their fold who are otherwise outside the fold. Each one of these things may be grossly offensive, annoying, inconvenient, insulting or injurious to large sections of particular communities and would fall within the net cast by Section 66A. In point of fact, 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.
We, therefore, hold that the section is unconstitutional also on the ground that ittakes 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.
POSSIBILITY OF AN ACT BEING ABUSED IS NOT A GROUND TO TEST ITS VALIDITY If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned additional solicitor general that it will be administered in a reasonable manner. 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.
SEVERABILITY It has been held by us that Section 66A purports to authorise the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action. We have held following K.A. Abbas’s case (Supra) that the possibility of Section 66A being applied for purposes not sanctioned by the Constitution cannot be ruled out. It must, therefore, be held to be wholly unconstitutional and void.
PROCEDURAL UNREASONABLENESS Again, for offences in the nature of promoting enmity between different groups on grounds of religion, etc, or offences relatable to deliberate and malicious acts intending to outrage religious feelings or statements that create or promote enmity, hatred or ill-will between classes can only be taken cognisance of by courts with the previous sanction of the Central government or the state government. This procedural safeguard does not apply even when a similar offence may be committed over the internet where a person is booked under Section 66A instead of the aforesaid sections.
SECTION 69A It will be noticed that Section 69A, unlike Section 66A, is a narrowly drawn provision with several safeguards. First and foremost, blocking can only be resorted to where the Central government is satisfied that it is necessary so to do. Secondly, such necessity is relatable only to some of the subjects set out in Article 19(2). Thirdly, reasons have to be recorded in writing in such blocking order so that they may be assailed in a writ petition under Article 226 of the Constitution.
The Rules further provide for a hearing before the committee set up — which committee then looks into whether or not it is necessary to block such information.It is only when the committee finds that there is such a necessity that a blockingorder is made. It is also clear from an examination of Rule 8 that it is not merely the intermediary who may be heard. If the “person”, that is, the originator is identified, he is also to be heard before a blocking order is passed. Above all, it is only after these procedural safeguards are met that blocking orders are made and in case there is a certified copy of a court order, only then can such blocking order also be made. It is only an intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of Section 69A.
CONCLUSION In conclusion, we may summarise what has been held by us above: (a) Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2). (b) Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid. (c) Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary 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. Similarly, the Information Technology “Intermediary Guidelines” Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgment. (d) Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2).