Written by Ayushi Raghuvanshi
Final Year, BA. LLB. Amity University Rajasthan
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
In a landmark judgment on 24th March 2015, the Supreme Court struck down Section 66A of the amended Information Technology Act 2000 and thus upheld the freedom of speech and expression and gave a boost to online speech and communication. The court held that the section violated Article 19(1)(a) of the constitution of India, falling outside the reasonable restrictions mentioned in Article 19(2).
There had been a number of cases preceding the judgment in which the police arrested the broadcasting of any information through a computer resource or a communication device which is found grossly offensive or false and meant for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will. Most of the cases were reported in 2012, including the arrest of Ambikesh Mahapatra, a professor from Jadavpur University followed by the case of forwarding caricatures on Facebook on Mamta Banerjee, the chief of Trinamool Congress. Another case that was thrown into the light was the arrest of Aseem Trivedi as he depicted ineffectiveness on the part of the parliament and the constitution through cartoons.
As a protest against this arbitrary rule, several petitions were taken up to the court, one of which was filled following the arrest of two girls by the Thane Police in Maharashtra in November 2012 over a post on Facebook which criticized the shutdown of Mumbai for the funeral of Bal Thackeray, the Chief of Shiv Sena.
Section 66(A) and the Lacunas
Section 66A provided for the punishment for sending offensive messages through communication services, etc. It strictly prohibited the use of a communication device to send any information which was grossly offensive or menacing in character, information which was false and used for causing annoyance, anger, insult, injury, inconvenience, etc.
The punishment provided was three years imprisonment and fine. The section’s language was vague as the words were loosely used which led to vagueness and arbitrariness. That led to widening the scope of the section.
Moreover, this provision left the discretion to the police authorities who could arrest without warrant if they considered any content falling within the ambit of Section 66 A. This led to the arbitrary use of the provision for making arrests.
The court discussed the free speech and the restrictions imposed on this free speech which do fit within the scope of reasonable restrictions. After careful examination, the court not only struck down Section 66A of the IT Act but also perused section 79 of the act and verified the constitutionality of Section 69A of the act.
The Hon’ble Supreme Court observed,
“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. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.”
Representing the Court, Justice Nariman examined the different measures which are appropriate to decree when limitations on discourse can be considered sensible, under Article 19(2) of the Indian Constitution. The Court held that Section 66-A was unclear and over-wide, and accordingly violated Article 19(1)(a) since the resolution was barely custom-fitted to explicit cases of discourse which it looked to control. Essentially, the Court additionally considered the 'chilling impact' on discourse brought about by unclear and over-expansive statutory language as a method of reasoning for striking down the arrangement. Further, the Court held that the 'open request' limitation under Article 19(2) of the Constitution would not have any significant bearing to instances of 'support', yet just to 'instigation', explicitly affectation which has a proximate connection to open issue.
The Supreme Court additionally perused down Section 79 and Rule 3(4) of the Intermediaries Guidelines, under the Act, which manages the liability of intermediaries, generally, those which have content and give online administrations. Though the Section itself utilizes the term 'receiving actual knowledge’, of the illicit material as the standard at which the intermediary is subject for evacuating content, the Court held that it must be considered to mean information received that a Court request has been passed requesting it to bring down the encroaching material. At last, the Court likewise maintained the secret blocking process under Section 69A of the Act, by which the Government can bring down substance from the Internet, holding that it didn't experience the ill effects of Section 66A or Section 79, and is a barely drawn arrangement with sufficient shields.
Conflict with the Freedom of Speech and Expression
Article 19(1) (a) of the Indian Constitution deals with the freedom to speech and expression, it clearly provides every citizen of India the right to free speech and expression. There are, however, certain restrictions that are labeled as “reasonable restrictions” imposed by sub-clause 2 of the Article. These restrictions are for maintaining public order, morality, and decency and to safeguard the sovereignty, integrity, security, and friendly relations of the nation.
The court held that Section 66(A) was not justifiable under any of the exceptions mentioned above. The terms used in the section were vague, undefined, and open-ended. No reasonable restriction could defend the provision of Section 66A of the IT Act.
The court has on several occasions described what “reasonable restrictions” means.
In Chintaman Rao v. The State of Madhya Pradesh, this Court observed that reasonable restriction should not be arbitrary or be of an excessive nature beyond what may actually be required in the public interest. The word ‘reasonable’ itself denotes that the restriction must be guided by reasons which require intelligent care and deliberation. And therefore any legislation which incorporates restrictions that are arbitrary or invade the rights excessively cannot be said to pass the test of reasonableness.
The legislation has to have a balance between the freedoms that have been provided in the constitution and the control over those freedoms which is provided by the restrictions.
Despite the decision of the court in Shreya Singhal’s case, there has been a continuance of instances wherein the authorities have arrested the people for their expression on the internet. A 22-year-old man, Rahat Khan was arrested for a status update on Facebook, this was also accompanied by the arrest of four more people in UP for their posts against the chief minister, Yogi Adityanath.
Another incident after the revocation of the section was the arrest of the journalist Abhijit Iyer-Mitra for derogatory remarks on Konark Temple. There have been more such instances where people and especially journalists have been arrested by the authorities for their expression on social media.
A Subsequent Case That Followed
In a recent case, the Supreme Court held that the freedom of speech and expression over the medium of the internet enjoys protection under Article 19(1) (a)  . This judgment strengthened the decision of the court in Shreya Singhal’s case by upholding the right to free speech and expression on the internet.
Development in this Field on the Issue of Law
One such development has been made in this field, the draft Information Technology Intermediaries Guidelines (Amendment) Rules, 2018 which primarily concerns the intermediaries i.e. any person who on the behalf of another person receives, stores, transmits, records or provides any service with respect to such record.
This draft has been framed with the view to curb the misuse of online intermediaries and to thereby protect the interests of the online users and make the intermediaries more accountable.
The Honourable Supreme Court of India made its first endeavor in upholding the right to free speech and expression in the online realm by scrapping Section 66 A of the IT Act, 2000. There have been subsequent developments since then like the Anuradha Bhasin case wherein the court has held that the freedom of speech and expression is what upholds the true meaning of democracy and that this freedom is also protected on the internet; the Court has indeed contributed to preserving the true meaning of democracy as free speech and expression is one of the pillars on which democracy rests.
 Shreya Singhal v Union of India, AIR 2015 SC 1523  “Professor arrested for poking fun at Mamata”, Hindustan Times. April 14, 2012. Web June 10, 2020.  “Indian cartoonist Aseem Trivedi jailed after arrest on sedition charges”, The Guardian September 10, 2012. Web June 11, 2020  “ Mumbai shuts down due to fear not respect”, The Hindu. November 19, 2012. Web June 10, 2020.  Shreya Singhal v Union of India, AIR 2015 SC 1523  Chintaman Rao v. The State of Madhya Pradesh, S.C.R. 759  “Arrest over a Facebook status: 7 times people landed in jail for posts against politicians”, Hindustan Express, March 24, 2017. Web 24 June 2020  “Journalist Abhijit Iyer-Mitra arrested for ‘derogatory remarks’ on Konark temple, released on bail”, Hindustan Express, September 20, 2018. Web 24 June 2020  Anuradha Bhasin Vs Union of India and Ors, Writ Petition(Civil) No 1031 of 2019  Section 2(1) (w), Information Technology Act, 2000
The Constitution of India, Bakshi P. M
Introduction to the Constitution of India, Durga Das Basu
Indian Polity, M. Laxmikant
The Constitution of India, 1950
Information Technology Act, 2000
Chintaman Rao v. The State of Madhya Pradesh, S.C.R. 759
Shreya Singhal v Union of India, AIR 2015 SC 1523
Anuradha Bhasin Vs Union of India and Ors, Writ Petition(civil) No 1031 of 2019