March 25 2015: In a landmark judgment the Indian Supreme Court has struck down the contentious Section 66A of the Information Technology Act that empowers the police to make arrests over social media posts and prescribes up to three years in jail as punisyhment.
The court has found that the section violates people’s fundamental right to speech and expression. It has held the provision to be “unconstitutional” and has struck down in its entirety.
The court also rejected the government's plea that the Section would be interpreted wisely that the authorities will make sure the law is administered well.
“Governments may come and governments may go, but Section 66A will always remain on the statute…whatever is otherwise invalid cannot be held to be valid by making a statement that it will be administered well,” said the judgement handed down by Justices J Chelameswar and Rohinton F Nariman.
The petitioners, included NGOs, civil rights groups and a law student.
Recent months have seen bizarre use of the impugned section to arrest students, teenagers and other lay citizens for innocuous Facebook posts, twitter comments and other social media use, when such comments ruffled the feathers of politicians. The new government in Delhi was widely expected to reverse the coersive practices in this regard, of its predecessor, as it was a loud supporter of social media. In fact the abuse of personal freedoms continued unabated under its watch, leading to widespread public cynicism about the political class as a whole.
NASSCOM , the body representing India's IT industry welcomed the Supreme Court judgement. Says NASSCOM President R. Chandrashekhar, : “Internet as a medium is meant to be free and transcend territorial borders with minimal regulation and monitoring. The IT Act has well served the objective to provide the legal framework for data security and internet laws in the country. The changes enabled by the Supreme Court judgment would provide much needed boost to the citizens of the country and help the objective of a digitally connected India.”
The Internet & Mobile Association of India (IAMAI) hailed the verdict as a “momentous victory for the 302 million strong Internet users in India”. Says IAMAI President Subho Ray: “This landmark judgment strengthens the safe harbor provisions for Intermediaries contained in the Section 79 of the Information Technology Act. It is especially helpful to smaller companies like Mouthshut.com who will now not be harassed by the frivolous and mal-intentioned notices of the take down.....the judgment will ensure Internet freedom for users and freedom of doing business on part of Intermediaries; thereby ensuring more innovation and investments in the Indian Internet sector.”
Media and civil society has uniformly hailed the apex court's verdict:
Editorials in print media:
Live Mint: Victory for free speech
Times of India: Good Riddance
Financial Express: Freeing Speech
The section they struck own:
"66 A Punishment for sending offensive messages through communication service, etc.
Any person who sends, by means of a computer resource or a communication device -
a) any information that is grossly offensive or has menacing character; or
b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,
c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to two three years and with fine.
Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic Mail Message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message."
(The Information Technology Act came into force in 2000. Section 66A was added as an amendment in 2008 and notified in February 2009.)