India's Supreme Court protects freedom of speech -- strikes down 'unconstitutional' IT Act Section 66A
It’s a big day for freedom of speech in India. The country’s Supreme Court today scrapped an ambiguous and controversial law which governed the consequences of posting sensitive and offensive content on the web. The ruling challenges the IT Act, including Section 66A, Section 79, and Section 69. With this decision the Supreme Court -- the highest judicial forum and final court of appeal under the Constitution of India -- ruled against the Central government which had defended the section.
The bench which consisted of Justice Chelameswar and Justice Rohinton Fali Nariman struck down Section 66A of the IT Act. For a refresh, the Section 66A orders 3 years imprisonment for anyone making offensive statements on the web; Section 79 forces the intermediary to take down the content from the web; and Section 69 allows blocking of online content.
Over the past couple of years, as an increasing number of Indians started connecting to the internet for business, education, health, entertainment, and other purposes, the laws defined in the IT Act started to seem out-of-date, unclear, and -- in some cases -- irrelevant. Today Justice Nariman sheds lights on the "three aspects of freedom of expression: discussion, advocacy and incitement", and notes that only when the discussion and advocacy reach the level of incitement that we apply Article 19 (2). The article in question allows restrictions on freedom of speech whenever applicable.
Today, Nariman also admitted that what could be offensive and annoying to one may not be observed as same by others. "Governments come and governments go, the law persists. And the law must be judged on its own merit. 66A is invalid and it cannot be saved even if the government says it won't abuse the law," he added.
The government, however, still supports Section 69, which gives it the power to block offensive content, whenever applicable. Section 79 and the IT rules are also subject to reasonable restrictions whenever applicable, but an intermediary will be provided with a court order or a government order. This is interesting, but it still leaves a possibility that the law could be misused. We will see how this shapes up in the months to come.
The ruling has given millions of Indians a hope of freedom of speech on the internet. The 66A had users "punished for sending offensive messages through communication service, etc.". Furthermore, if the content sent by a user via a communication device was found "grossly offensive" or of "menacing character", or caused "annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill", it was treated with imprisonment for a term which may extend to three years and a fine.
Because of its ambiguous nature, Section 66A act was often misunderstood and misused. In the past, we have seen several incidences when people were arrested because they clicked on the Like button on Facebook, or shared something offensive. In 2012, two girls were arrested over a Facebook post. Last December, Indian government had ordered a ban on more than 52 websites including Vimeo, Archive.org, and Github because the local government found some content on the websites as offensive.
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