SC rejects Centre's plea to read down contentious provision

The Supreme Court on Tuesday rejected the NDA government's plea for reading down Section 66A of the Information Technology (IT) Act and quashed the controversial provision in its “entirety”.

The verdict is being considered a victory for free speech on social media.
A bench of Justices J Chelameswar and R F Nariman said the section conflicted with Article 19(1)(a) of the Constitution, which grants the fundamental right to freedom of speech and expression.

In the 123-page judgment, Justice Nariman said the section also fell foul of eight subjects mentioned as reasonable restrictions under Article 19 (2) of the Constitution: interest of the sovereignty and integrity of the country, security of the State, friendly relations with foreign States, public order, decency or morality, defamation, or incitement to an offence.
The court rejected the government's contention that the mere possibility of abuse of a provision cannot be a ground to declare it invalid.

“If Section 66A is otherwise invalid, it cannot be saved by an assurance from the Additional Solicitor General that it will be administered in a reasonable manner,” said the bench.

“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. Further, vagueness is not a ground to declare a statute unconstitutional if the statute is otherwise legislatively competent and non-arbitrary,” the government had claimed.

The court, however, said: “It cannot be over-emphasised that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.”

Mere discussion or advocacy of a particular cause, howsoever unpopular, is at the heart of Article 19(1)(a) (freedom of speech). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) (restrictions) kicks in, added the bench.

The court, however, rejected plea of the petitioners that the cyber law provision also violated the fundamental right to equality.

“We make it clear that there is an intelligible differentia between speech on the Internet and other mediums of communication for which separate offences can certainly be created by legislation. We find, therefore, that the challenge on the ground of Article 14 must fail,” said the bench.

Kerala Police Act provision quashed

The Supreme Court which struck down Section 66A of the IT Act, also quashed a provision of the Kerala Police Act, which permitted arrest of a person for sending “annoying” mails or such telephone calls “causing grave violation of public order or danger”, DHNS reports from New Delhi. A bench of justices J Chelameswar and R F Nariman said though it was within the competence of state legislature to pass such a law, Section 118(d) of the Kerala Police Act also violated fundamental right to freedom of speech and expression and did not fall under the reasonable restrictions as given in the Constitution.

The Section also could lead to imprisonment of a person on conviction for a term which may extend to three years or with fine not exceeding ten thousand rupees or with both.

“What has been said about Section 66A would apply directly to Section 118(d) of the Kerala Police Act, as causing annoyance in an indecent manner suffers from the same type of vagueness and over breadth, that led to the invalidity of Section 66A,” the bench said, declaring the provision “unconstitutional”.