- Background of the Case:
This is a landmark judgment, concerning section 66A of the Information Technology Act, 2000. This Section was not in the Act as originally enacted, but came into force by virtue of an Amendment Act of 2009 with effect from 27.10.2009.The reason behind the insertion of section 66A according to the Amendment Bill was:
“A rapid increase in the use of computer and internet has given rise to new forms of crimes like publishing sexually explicit materials in electronic form, video voyeurism, breach of confidentiality and leakage of data by intermediary, e-commerce frauds like personation commonly known as Phishing, identity theft and offensive messages through communication services. So, penal provisions are required to be included in the Information Technology Act, the Indian Penal code, the Indian Evidence Act and the Code of Criminal Procedure to prevent such crimes”.
The Petitioners have raised a large number of points as to the constitutionality of section 66A. According to them, first and foremost Section 66A infringes the fundamental right to freedom of speech and expression and is not saved by any of the eight subjects covered in Article 19(2).Further, in creating an offence, section 66A suffers from the vice of vagueness because unlike the offence created by section 66 of the same Act, none of the aforesaid terms are even attempted to be defined and cannot be defined, the result being that innocent persons are also roped in. Such persons are not told clearly on which side of the line they fall; and it would be open to the authorities to be as arbitrary and whimsical as they like in booking such persons under the said section. In fact, a large number of innocent persons have been booked.
- Contentions put forward by the Parties:
The enforcement of the said section would really be an insidious form of censorship which impairs a core value contained in Article 19(1)(a). In addition, the said section has a chilling effect on the freedom of speech and expression. Also, the right of viewers is infringed as such chilling effect would not give them the benefit of many shades of grey in terms of various points of view that could be viewed over the internet.The Petitioners also contended that their rights under Articles 14 and 21 are breached in as much there is no intelligible differentia between those who use the internet and those who by words spoken or written, use other mediums of communication. To punish somebody because he uses a particular medium of communication is itself a discriminatory object and would fall foul of Article 14 in any case.
In reply, Mr. Tushar Mehta learned Additional Solicitor General defended the constitutionality of Section 66A. He argued that the legislature is in the best position to understand and appreciate the needs of the people. The Court will, therefore, interfere with the legislative process only when a statute is clearly violative of the rights conferred on the citizens under Part-III of the Constitution. There is a presumption in favour of the constitutionality of an enactment. Further, the Court would so construe a statute to make it workable and in doing so, can read into it or read down the provisions that are impugned. The Constitution does not impose impossible standards of determining validity. Mere possibility of abuse of a provision cannot be a ground to declare a provision invalid. Loose language may have been used in Section 66A to deal with novel methods of disturbing other people’s rights by using the internet as a tool to do so. Further, vagueness is not a ground to declare a statute unconstitutional if the statute is otherwise legislatively competent and non-arbitrary. He cited a large number of judgments both from this Court and from overseas to buttress his submissions.
The Court held that the provision of section 66A of the IT Act is derogative to the Article 19(1)(a) and as such it is an arbitrary provision which breaches the right of citizen to have freedom of speech and expression of their views on internet. As such the provision concerned is constitutionally invalid and as such struck down in its entirety.
- Judgment Analysis:
The judgment of this case is immensely important in the Supreme Court’s history for many reasons. In a rare instance, Supreme Court has adopted the extreme step of declaring a censorship law passed by Parliament as altogether illegitimate. The Judgment has increased the scope of the right available to us to express ourselves freely, and the limited space given to the state in restraining this freedom in only the most exceptional of circumstances. Justice Nariman has highlighted that the liberty of thought and expression is not merely an inspirational ideal. It is also “a cardinal value that is of paramount significance under our constitutional scheme.”