The Death of 66A and the Dawn of a New Era of Free Speech Jurisprudence

By Siddharth Narrain,

Click here for FULL TEXT of the judgment.

It’s not often that India’s Supreme Court strikes down a law in its entirety as a violation of the free speech. But when it does, boy do you want to stand up and cheer. Before a packed courtroom, Justices Rohinton Nariman and G. Chelameswar, pronounced their judgment in Shreya Singhal & Ors. v. Union of India,striking down, in its entirety, the controversial section 66A of the Information Technology Act in its entirety. The full text of the decision is not available yet. But Justice Nariman read out parts of the court decision, enough to give us a sense of what is to come.

Justice Nariman talking on behalf of the Bench, first referred to the Preamble of the Constitution that guarantees all citizens the liberty of thought, expression, belief, faith and worship. He stressed that the liberty of expression was of paramount importance in our constitutional scheme. He then highlighted salient features of the judgment.

Para 13 deals with the distinction between ‘discussion’, ‘advocacy’ and ‘incitement’. As per the Supreme Court, mere discussion or advocacy of a cause, however unpopular, is protected by Article 19(1)a of the Constitution that guarantees the freedom of speech and expression. Only when speech reaches the level of incitement are 19(2) restrictions attracted. Justice Nariman noted that most of the arguments before the court revolved around the ‘public order’ restriction in 19(2), and therefore unless speech is of the variety that it tends to cause public disorder, it cannot be restricted. Thus the court has built on earlier case law like Ram Manohar Lohia and Arup Bhuyan to strengthen and confirm the constitutional protection to speech. Section-66-A

The Court ruled that the public’s right to know was adversely impacted by section 66A of the Information Technology Act, which restricted information that could cause annoyance or was grossly offensive. The Court referred to U.S. Supreme Court Justice Holmes’ famous articulation of the market place of ideas, and said that in order for the state to restrict speech it has to meet the standard of incitement and causal link to the disturbance of public order.

The Court has pointed out section 66A did not make a distinction between mass dissemination and dissemination to one person. Justice Nariman said that the nexus between the message and action taken on the basis of the message was conspicuously absent. The language of section 66A did not require a proximate connection to public order, and instead criminalised mere annoyance.

Justice Nariman said that the language of 66A did not satisfy the “Clear and Present Danger Test” nor the “Tendency to Affect” Test, both of which the judgment elaborates on. Besides ‘public order’, section 66A does not satisfy any of the other terms of restriction provided in Article 19(2). The Court said that the Additional Solicitor General (representing the government) had asked the Bench to read these tests into into section 66A, but if they did so, this would amount to wholesale substitution of the law.

The Court ruled that the language of section 66A did not satisfy the test of vagueness- it did not lay down clearly defined lines thus not allowing for law enforcement to put persons on notice. “What may be offensive to one person is not offensive to another”, said Justice Nariman. The Court said that even the term “persistently” in section 66A was not clearly defined. Thus the section was rendered constitutionally vague. The Court observed that two U.K. judgments cited by the ASG illustrated how even judicially trained minds could differ on the meaning of ‘the term grossly offensive’.

Referring to the government’s argument that the possibility of abuse does not render a law invalid, the Court held that section 66A, which was otherwise invalid could not be saved by the ASG’s assurance that the law would be administered flawlessly. “Governments may come, and governments may go, but the law will remain”, observed the judges.

The judges relied on the Romesh Thapar case to address the issue of severability of the provision (i.e. whether one part of the section could be severed from the rest, but the section in its entirety would remain on the statute book). The Court held that section 66A does not fall within the subject matter of Article 19(2). “No part of the section is severable as the provision as a whole is unconstitutional”, said Justice Nariman.

The Court rejected the Article 14 argument put forward by the petitioners, who had argued that laws governing the regulation of the Internet should be on par with laws governing other media like print, broadcast etc. The Court said that section 66Bof the IT Act onwards did create separate standards for the regulation of the Internet.

The Court also struck down in its entirety section 118D of the Kerala Police Act, a provision similar to section 66A.

The Court, however, upheld the law related to blocking, section 69A, and the connected Rules, in its entirety. As for the Intermediary Rules, the court has upheld section 79 of the IT Act, and the Intermediary Rules subject to reading down both provisions to allow for a requirement whereby a court order is required before an intermediary is required to take down information of it was related to subject matter covered by Article 19(2). One has to read the judgment to see what the Court’s reasoning has been relating to the Blocking Rules and Intermediary Guidelines, as the judges did not elaborate on this in the courtroom.

The petitioners in this case included Shreya Singhal, Common Cause, Rajeev Chandrasekhar, Dilip Kumar Tulsidas, the Peoples Union for Civil Liberties, Mouthshut.Com, Tasleema Nasrin, Manoj Oswal, the Internet and Mobile Association of India and Anoop M.K. For a more detailed account of their arguments in court click here.

This is a big moment for them, and an even bigger moment for all those who have been crying hoarse about draconian laws in this country that have stifled the liberty to speak one’s mind, to dissent, and to be creative without feeling that one’s hands have been handcuffed by the law.

The writer is a lawyer and legal researcher. Courtesy: kafila.org