In this landmark judgment, the constitutional validity of Section 66A of the Information Technology Act, 2000 was challenged on the ground that it violates the right to freedom of expression guaranteed under Article 19(1)(a) of the Indian Constitution.
By: Shiva Avasti, Third Year Student at Government New Law College, Indore.
In March, 2012, two girls namely, Shaheen Dhada and Rinu Srinivasan were arrested by the police under Section 66A of the Information Technology Act, 2002. Both of them had expressed their displeasure in a facebook post at a bandh called in the wake of the death of Shiv Sena’s chief Bal Thackeray. They were later released and the charges against them were dropped. However, the Petitioner challenged the validity of Section 66A of the Information Technology Act, 2000 on numerous grounds including the violation of Article 19(1)(a), Article 19(2), Article 14 and Article 21. The petitioner claimed that this segment had ended up generating a source of various new crimes.
- Whether Section 66A of the Information Technology Act, 2000, is constitutionally valid?
- Whether Section 66A violates the fundamental right of freedom of speech and expression?
- Section 66 A Information technology Act 2000
- Article 14,19 and 21 of the Constitution of India, 1950.
Arguments by the Petitioner:
- Section 66A excludes the freedom of speech and expression granted under Article 19(1)(a) and isn’t safeguarded by using the affordable limit mentioned in Article 19(2).
- It is outside the ambit of Article 19(2)(c) to account annoyance, discomfort, etc.
- Section 66A seeks to create an offence but has infirmity and vice of vagueness because the terminology used in it is not certainly defined. The terminology used is subjective in nature and stays open to law enforcement agencies’ preference and willingness to interpret it. There is no limitation.
- Article 14 has been violated as there is no intelligible differentia as to why this provision was addressed only to the means of communication.
Arguments by Respondent:
- The legislature is within the most powerful position to address societal needs, and the judiciary will only weigh in when a statute is explicitly in violation of Part III of the constitution.
- In this way, the Court might construe a law to make it practical, and in doing so, it would be capable of examining or studying the laws.
- Only the possibility of violation cannot justify the invalidation of the rule.
- Loose Language is used to defend the rights of the people from folks who use this medium to threaten them.
- Vagueness isn’t a reason to declare a law unconstitutional, if it is not arbitrary.
The apex court held that Section 66A violated Article 19(1)(a) and wasn’t safeguarded in compliance with Article 19(2). Section 69A and the regulations on IT(procedure and safeguard for blocking public access to information) are constitutional. Section 79 is applicable prior to Section 79(3)(b) being interpreted. Section 118(d) of the Kerala Police Act (public order) was repealed.
- In the case of Romesh Thappar v. State of Madras (1), it was held that “Freedom of speech and expression of the media lies at the base of all democratic institutions, without free political debate, no public education is possible that is necessary to the proper functioning of the popular government system.” Freedom of speech and expression includes the right to communicate and receive information like freedom of expression.
- The Supreme Court in the case of Sakal Papers v. Union of India (2), observed that the State could not make a law which directly restricted the freedom of speech and expression.
- Union of India v. Association for Democratic Reforms and Anr (3), the Supreme Court held that “One-sided information, disinformation, misinformation and non-information all create uninformed citizenship that makes democracy a farce. Freedom of speech and expression involves the right to communicate and receive information, including freedom of expression. The most important principal of all libertines is freedom of speech and expression.”
Freedom of speech and expression involves the right to communicate and receive information, including freedom of expression. The most important principal of all libertines is freedom of speech and expression.”
The case holds vital importance in the history of the Supreme Court for many reasons. The judgment has multiplied the scope of the right to represent and express ourselves freely, and a limited scope is given to the state for restraining the freedom of speech and expression only under exceptional circumstances.
In my opinion, the term offensive in section 66A of the IT Act is vague. What could be offensive to the one may not be offensive to another man. I believe that the police acted in an arbitrary manner and didn’t have any grounds to arrest the girls. The police acted too hastily due to the political pressure.
Restrictions on the freedom of speech and expression should be non-arbitrary and rational. For instance, defamation is one reasonable restriction. Various judgments are referred by the apex court with regards to the importance of freedom of speech and expression both from the point of view of the liberty of the individual and the democratic form of government.
(1)  SCR 594 at 602.
(2)  SCR (3) 842.
(3)  (3) SCR 294.