Section 66A of the Information Technology Act of 2000 held unconstitutional

Shreya Singhal v. Union of India


Writ petitions were filed under Article 32 of the Constitution of India relating to the fundamental right of free speech and expression guaranteed by Article 19(1)(a) of the Constitution of India. The constitutionality of Section 66A of the Information Technology Act of 2000 was challenged. Section 66A was challenged on the ground that it casts the net very wide – “all information” that is disseminated over the internet is included within its reach.

The Supreme Court referred to various judgments including Romesh Thappar v. State of Madras, [1950]S.C.R. 594 at 602, Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842, Bennett Coleman & Co. & Ors. v. Union of India & Ors.[1973] 2 S.C.R. 757, S. Khushboo v. Kanniamal & Anr., (2010) 5SCC 600 which have recognised the importance of freedom of speech and expression both from the point of view of the liberty of the individual and from the point of view of the democratic form of government. Various American Judgments were also referred to. The Supreme Court discussed as to what was the content of the expression “freedom of speech and expression”. The Supreme Court observed that 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 & integrity of India, the security of the State, friendly relations with foreign States, etc.

The Supreme Court observed that the definition of ‘information’ as given in Section 2(v) of Information Technology Act, 2000 is an inclusive one and it does not refer to what the content of information can be. It refers only to the medium through which such information is disseminated. Hence the Court agreed with the petitioners that the public’s right to know is directly affected by Section 66A. Information of all kinds was roped in – such information may have scientific, literary or artistic value, it may refer to current events, it may be obscene or seditious. That such information may cause annoyance or inconvenience to some is how the offence is made out. It is clear that the right of the people to know – the market place of ideas – which the internet provides to persons of all kinds is what attracts Section 66A. That the information 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 maybe 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.  It was held 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.

It was contended by the petitioner that the offence created by the said section has no proximate relation with any of the eight subject matters contained in Article 19(2). Whereas the the State claimed that the said Section can be supported under the heads of public order, defamation, incitement to an offence and decency or morality. It was also argued that a relaxed standard of reasonableness of restriction should apply regard being had to the fact that the medium of speech being the internet differs from other mediums on several grounds.

The Court observed that a distinction could be made 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 creation of offences which are applied to free speech over the internet alone as opposed to other mediums of communication.

The Court observed that it has to be seen whether a particular act led to disturbance of the current life of the community or does it merely affect an individual leaving the tranquility of society undisturbed. The Court observed that Section 66A is intended to punish any person who uses the internet to disseminate any information that falls within the sub-clauses of Section 66A. 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 the Section is concerned. Hence 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. It 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 order whatsoever. 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.

The Court observed that 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 had no element of any tendency to create public disorder which ought to be an essential ingredient of the offence which it created.

For something to be defamatory, injury to reputation is a basic ingredient. Section 66A did not concern itself with injury to reputation. Something may be grossly offensive and may annoy or be inconvenient to somebody without at all affecting his reputation. Hence it was observed that the Section was not aimed at defamatory statements at all.

Similarly Section 66A had no proximate connection with incitement to commit an offence. Firstly, the information disseminated over the internet need not be information which “incites” anybody at all. Written words might be sent that might 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 were not offences under the Penal Code at all. They might be ingredients of certain offences under the Penal Code but were not offences in themselves. The Court held that Section 66A had nothing to do with “incitement to an offence”. As Section 66A severely curtailed information that might be sent on the internet based on whether it was grossly offensive, annoying, inconvenient, etc. and being unrelated to any of the eight subject matters under Article 19(2) must, therefore, fell foul of Article 19(1)(a), and not being saved under Article 19(2), was declared as unconstitutional.

Similar reasoning applied to decency or morality also. The Court held that Section 66A couldnot 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.

The petitioners argued that the language used in Section 66A was so vague that neither would an accused person be put on notice as to what exactly is the offence which had been committed nor would the authorities administering the Section be clear as to on which side of a clearly drawn line a particular communication would fall. The Court held that the expressions used in 66A were completely open-ended and undefined.

The Supreme Court observed that 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. Section 66A is cast so widely that if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.

The Supreme Court took into account earlier judgments recognizing the chilling effect of free speech such as R. Rajagopal v. State of T.N., (1994) 6 SCC 632,  S. Khushboo v. Kanniammal, (2010) 5 SCC 600, Kedar Nath Singh v. State of Bihar, [1962] Supp. 2 S.C.R.769, Ram Manohar Lohia case [1960] 2 S.C.R. 821. The Supreme Court held that not only the expressions used in Section 66A are expressions of inexactitude but they are also overbroad and would fall foul of the repeated injunctions of the Supreme Court that restrictions on the freedom of speech must be couched in the narrowest possible terms. It was held that the Section is unconstitutional also on the ground that it takes 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.

The State argued that possibility that Section 66A is capable of being abused by the persons who administered it is not a ground to test its validity if it is otherwise valid. The Court held that if Section 66A is otherwise invalid, it cannot be saved by an assurance from the State that it will be administered in a reasonable manner. 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.

The Court held that Section 66A purported to authorize 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. The possibility of Section 66A being applied for purposes not sanctioned by the Constitution couldnot be ruled out. Hence it was held to be wholly unconstitutional and void. The Court observed that the present was a case where, as had been held above, Section 66A did not fall within any of the subject matters contained in Article 19(2) and the possibility of its being applied for purposes outside those subject matters was clear.  It was held that no part of Section 66A was severable and the provision as a whole must be declared unconstitutional.

The Court held that Section 66A created an offence which was vague and overboard, and, therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2). Also that the wider range of circulation over the internet couldnot restrict the content of the right under Article 19(1)(a) nor could it justify its denial. On the issue of discrimination under Article 14, the Court held that the intelligible differentia was clear – the internet gave any individual a platform which required very little or no payment through which to air his views. Something posted on a site or website travelled like lightning and could reach millions of persons all over the world. The Court held that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences could certainly be created by legislation. Hence the challenge on the ground of Article 14 failed.

It was argued by the petitioners that Section 66A suffered from the vice of procedural unreasonableness. The procedural safeguards as available under criminal law such as in defamation and other offences, did 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. The Court having struck down Section 66A on substantive grounds, did not decide the procedural unreasonableness aspect of the Section.

The Supreme Court thus stuck down Section 66A of the Information Technology Act, 2000 in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).