This Case Analysis is written by Tasneem Hussain Legal content writer at Lawyers Troop
Table of Contents
- Writ Petition No.167 of 2012
- In the Supreme Court of India
- Bench: J. Chelameswar, Rohinton Fali Nariman
- Decided on: March 24, 2015
Freedom of Speech and Expression under Article 19(1)(a) of the Constitution of India is subject to restrictions only under the grounds provided in Article 19(2).
Relevant Statutes and Sections
- The Information Technology Act, 2000, Section 66A, Section 69A, Section 79(3)(b)
- Information Technology Intermediary Guidelines Rules, 2011
- Constitution of India, Article 14, Article 19, Article 21
- Kerala Police Act, 1960, Section 118(d)
Facts and Procedural History
Two girls were arrested under Section 66A of the Information Technology Act, 2002. They posted comments on a social media platform criticising a “bandh” on account of death of a minister. They were later released and the charges against them were quashed.
However, the Petitioner challenged the validity of Section 66A of the Information Technology Act, 2000 on various grounds such as violation of Article 19(1), Article 19(2), Article 14 and Article 21. The petitioner claims that this section has become a source of various new crimes.
- Whether Section 66A of the Information Technology Act, 2000 is constitutionally invalid?
Ratio of the Supreme Court
- The Court intensely deliberated upon the scope of Article 19(1)(a) which provides the freedom of Speech and Expression and whether the Section 66A of the Information Technology Act, 2000 is a reasonable restriction under Article 19(2).
The learned counsel for the petitioner raised various arguments; firstly, that Section 66A infringes the Right to Speech and Expression under Article 19(1)(a); next, that under Section 66A(b), “causing of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will” are not under the purview of Article 19(2) and therefore, are unreasonable.
Also, the petitioner argued that these terms are nowhere defined and are vague, which can lead to innocent people being trapped into it. It would lead to arbitrariness of the authority and is a form of censorship. The petitioners also argued that their Rights under Article 14 and 21 of the Constitution of India are violated. The use of any particular medium to express leading to punishment is discriminatory.
The Additional Solicitor General, defending the constitutionality of Section 66A of Information Technology Act, contended that the legislature is in a best position to understand the needs of the citizens and that the court will only interfere when there is a serious violation of the Fundamental Rights. They argued that mere possibility of abuse of a provision cannot make the provision invalid. He further argued that vagueness is not a ground to declare a provision unconstitutional.
The Supreme Court referred to various judgements to come to a conclusion. In the case of Romesh Thappar v. State of Madras1, the Supreme Court held that “freedom of speech lays the foundation of all democratic organization”. In Sakal Papers (P) Ltd. & Ors. v. Union of India,2 the Court said “freedom of speech and expression of opinion is of paramount importance under a democratic constitution which envisages changes in the composition of legislatures and governments and must be preserved.” Also, referring to Bennett Coleman & Co. & Ors. v. Union of India & Ors.,3, the court opined that “the freedom of speech and of the press is the Ark of the Covenant of Democracy, because public criticism is essential to the working of its institutions”.
The Court also relied on various foreign cases. The Court held that the fear of serious injury cannot suppress the freedom of speech and assembly. For discussing the aspect of reasonable restrictions, the Court relied on the cases of Chintaman Rao v. The State of Madhya Pradesh,4, Dr. N. B. Khare v. State of Delhi,5 and State of Madras v. V.G. Row,6 it held that the word “reasonable” implied intelligent care and deliberation.
The Court laid down the intention of Section 66A which is “to punish any person who uses the internet to disseminate any information that falls within the sub-clauses of Section 66A”. The court also discussed the problem of defining the scope of freedom of expression in lieu of the restrictions in Article 19(2) with regards to social interests. The Court then deliberated on the issue raised by the petition of Section 66A being vague. The language of the provision was considered in detail for the purpose of this discussion. It was held in United States v. Reese7 that a penal law is void for vagueness if it fails to define the criminal offense with sufficient definiteness.
The Court then discussed the claims of the petitioner on the Act having a chilling effect and overbreadth. The Court relied on the judgement of S. Khushboo v. Kanniammal,8 wherein it was held that the law should not be used in a manner that has chilling effects on the Freedom of Speech and Expression. The Court directly applied the rule laid down in Ram Manohar Lohia’s case9 to the present case of Section 66A for declaring it unconstitutional on the grounds of chilling effect.
The court then discussed the scope of severability as contended by the Additional Solicitor General. However, it rejected it saying that the counsel could not specify as to what parts of Section 66A can be severed to make it constitutionally valid.
The Court then discussed the contentions of the petitioner claiming that Section 66A is violative of Article 14. In this regard, the court held that there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can be created by the legislation and therefore the said Section cannot be challenged under Article 14.
The Court also briefly discussed the validity of Section 69A and 79(3)(b) of the Information Technology Act, 2000, the Information Technology Rules, 2009 as well as the Information Technology “Intermediary Guidelines” Rules, 2011.
It also discussed the constitutional validity of Section 118(d) of the Kerala Police Act, 1960.
The Court after considering the above detailed discussion came to the conclusion that Section 66A of the Information Technology Act, 2000 is constitutionally invalid as it violates Article 19(1)(a), it cannot be covered under 19(2) on grounds of reasonable restrictions. However, it held that it does not violate Article 14 of the Constitution of India.
It upheld the Constitutional Validity of Section 69A and Information Technology Rules, 2009.
The Court also upheld the validity of Section 79(3)(b) and Information Technology “Intermediary Guidelines” Rules, 2011.
It held the Section 118(d) of the Kerala Police Act, 1960 as unconstitutional as it violates Article 19(1)(a) and is not covered under Article 19(2) of the Constitution of India and struck it down.