While the government has welcomed the Supreme Court’s decision to strike down Section 66A of the InformationTechnology Act of 2000 (as amended by the UPA in 2008), itwas always unfortunate it did little to prevent its abuse by various state governments in the 10 months it has been in power. While the amendment was ostensibly brought in to curb hate speech that could, for instance, lead to communal violence, the Act has been used to arrest two girls for a Facebook post questioning the shutting down of Mumbai following Bal Thackeray’s funeral, to harass a professor for circulating a cartoon of Mamata Banerjee, to charge a cartoonist for sedition and, among others, to file an FIR against Taslima Nasreen’s tweets against clerics. Despite this, however, the government tried to convince the Court that while the powers of the section were needed, it would try and find ways to ensure no misuse—the UPA had, for instance, issued an advisory saying that no arrests under Section 66A could be made without prior approval of a senior police officer. None of this, not surprisingly, impressed the Court which said, in a 122-page verdict delivered by Justices J Chelameswar and Rohinton Fali Nariman, that the provision ‘clearly affects’ the fundamental right of freedom of speech—66A carries a 3-year prison sentence. Section 66A talks of ‘any information that is grossly offensive or has menacing character’ and which, while being false, causes ‘annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will’—all terms are open to abuse, more so in a state which is intolerant of any form of dissent; indeed, the instances of the use of Section 66A only reinforce this point. Which is why, the judges pointed out, “thelanguage used in Section 66A is vague” and “does 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. It is clear that the Section is not aimed at defamatory statements at all.”
The Supreme Court has not struck down Section 69A which was also challenged by law student Shreya Singhal—this gives the government the power to block public access to information on grounds of national security or it affecting friendly relations with foreign states or disturbing the public order. Presumably this has been done because the Court was satisfied that there are a set of procedures and safeguards that are in place. The Court did, though, come down on Section 79 of the Act which, in effect, allowed the government to block content without due procedure. Section 79 deals with the rights of intermediaries like Facebook and Twitter and says they will not be liable for what is put up by a third party under various conditions. Sub-section (b), however, says that this protection will not be available if, after being informed by ‘the appropriate government or its agency’, this is not taken down—apart from creating a potential problem for intermediaries, this ensured intermediaries over-reacted and took down twitter or Facebook posts as soon as any government official objected to content. The Court has now said Section 79(b) can be invoked only after a court order. All told, the SC has struck a big blow for free speech.