“It cannot be over-emphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance.” With these words, India’s Supreme Court, in a landmark judgment on March 24, struck down Section 66A of the Information Technology Act and upheld the right to freedom of speech and expression.
Section 66A criminalized an incredibly broad range of speech, such as content that is “grossly offensive,” “has menacing character,” or causes annoyance or inconvenience, and provides punishment of up to three years in prison. The Supreme Court concluded that the section was overbroad and vague, and would have a chilling effect on free speech.
“Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net,” the two-judge bench noted. Several people have been arrested under this provision in recent years for their online content or posts on social networking sites, including students, a university professor, and a political cartoonist.
Among the first to challenge Section 66A in the Supreme Court was law student Shreya Singhal who filed a petition in 2012 after two young women in Maharashtra state were arrested for a post on Facebook questioning the shutdown of Mumbai following the death of a powerful political leader. But a wide range of parties joined the appeal, including a rights group, a member of parliament, a private Internet company, and an industry association.
The government defended the law, saying that given the reach and impact of the medium, it was needed to preserve public order. “Morphing of images can be done and put on internet or some rumour can be spread through internet which can create social disorder in society,” the government’s lawyer argued in court.
However, the judges disagreed, saying Section 66A neither passed the test of “clear and present danger” nor the tendency to create public disorder. The judges instead ruled that the restrictions were unconstitutional.
The court also examined other provisions of the law, including Section 79 of the Information Technology Act and subsequent rules that require intermediary companies (such as online service providers) to censor content posted by third parties. The judges upheld the section and the rules, but said that now a court order or a notification from an appropriate government agency would be required before an intermediary is liable to take down information that is restricted.
The court has left intact Section 69A, which allows for blocking of online content on certain grounds and the rules that lay down the procedure for blocking. Human Rights Watch, along with several rights groups and Internet experts, has reported how these provisions lack adequate safeguards and the process is shrouded in secrecy.
The Supreme Court ruling has come at a time when freedom of expression in India is under increasing pressure from the “heckler’s veto”: threats and litigation by those “offended” have forced authors and publishers to withdraw their work. The Supreme Court has now strengthened the standards of free expression in the world’s largest democracy. The government should respond by increasing protections for speech, not caving to vigilantes.