Section 66A of Information Technology Act, 2000: Declares Unconstitutional as it curtail Freedom of Speech and Expression guaranteed under Article 19(1)(a) of the Constitution.
Writ Petition (Cri.) No. 167 of 2012
Bench: Justice Chelameswar; Rohinton Fali Nariman.
In this present case, a number of petitions under Article 32 of the Constitution were decided by Hon’ble Supreme Court of India. By way of these petitions a challenge was filed against the constitutionality of provision of Section 66A of Information Technology Act (IT Act). The very thrust of the challenges is the violation of Fundamental Right relating to freedom of speech and Expression guaranteed under Article 19(1)(a) of the Constitution of India, by the implementation of aforesaid provision. As per Petitioners the provisions of section 66A are vague in making the offence and also causing of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, etc. are not attempted to define and which results in roping the innocents. As per Petitioners huge numbers of innocents have in fact been booked under this Section. Considering both sides’ contentions, the Court insisted itself to decide the content of the expression ‘freedom of speech and expression’. Court further observed the recognised principle by the Apex Court in Indian Express Newspapers’s case (Indian Express Newspapers (Bombay) Private Limited & Ors. v. Union of India & Ors., (1985) 2 SCR 287 ) that to examine the Constitutionality of any law against the Article 19(1)(a) of the Constitution of India, the Court to be guided by the American Supreme Court, and also to understand the basic principle and need of that right, the right to be read along with Article 19(2). While considering the validity of the impugned provision the Court found that the though the provision of Section 66A of the IT Act, covers all information which can be disseminate over the internet, but the definition of the term ‘information’ provided under the IT Act, does not speaks of contents of information and only covers medium by which such information can be disseminated, as such people’s right to know is affected by Section 66A of the IT Act. Court further observed that, it is not open in India’s Constitutional Scheme that, the State while acting under general public interest, to curtail ‘Freedom of Speech’, as has been recognised in the case of Sakal Papers (P) ltd(Sakal Papers (P) Ltd. & Ors. v. Union of India, (1962) 3 S.C.R. 842 ). that the concerned freedom can only be restricted in the Security interest of state, friendly relations with foreign country, public order, decency or morality or in relating to Court’s contempt, defamation or incitement to the offence. The Court has specifically pointed that in order to constitute an offence under section 66 or other computer related offences there is most important ingredient of mens rea. However, in case of section 66A of the IT Act, the provision does not contain any such ingredient. Thus, the Court finally, held the provision of section 66A of the IT Act as derogative to the Article 19(1)(a) and as such it is arbitrary provision which breaches the right of citizen to the have freedom of speech and expression of their views on internet. As such the provision concerned is constitutionally invalid and as such struck down in its entirety, and another provision i.e. section 69A of the IT Act and the IT Rules are constitutionally valid.
by Faim Khalilkhan Pathan.
See Original Judgement: Shreya Singhal Vs Union Of India, on 24th March 2015