Speech freed - A Twitter post may no longer land you in jail!

To many of us active on social media, the judgement delivered by the Supreme Court of India (SC) earlier on Tuesday, quashing the draconian Section 66A of the Information Technology Act, 2000 (IT Act), and declaring the same to be unconstitutional, comes as a relief. We can now express our honest opinion on social media, without fear of being unceremoniously arrested, and tagged criminals.  

Section 66A of the IT Act, which was worded very broadly, allowed for the punishment of any person who sent, by means of a computer resource or a communication device, any information that was 'grossly offensive' or had a 'menacing character'.

The terms 'grossly offensive' and 'menacing character' were subjective and open to interpretation, giving government authorities great potential of abuse. It granted unbridled powers to police officers to arrest any person who posted any content that they deemed 'offensive', as per their discretion.

A glaring instance of such abuse was seen in 2012, when two young girls from Thane were arrested by the police, for alleged contravention of Section 66A, after they expressed their disapproval regarding the shutdown in Mumbai after Bal Thackeray's death. One of the two girls had just 'liked' the post, and was still arrested for allegedly posting objectionable content that was 'grossly offensive and menacing' in nature.

This incident had led to the filing of numerous public interest litigation (PIL) petitions before the SC, demanding the striking down of the provision on grounds of unconstitutionality and violation of the fundamental right to freedom of speech and expression, of internet users. Following numerous PILs, the SC had issued an advisory in May 2013 that stated that no person can be arrested under Section 66A, except with the prior permission of senior police officers such as the IG or the DCP.

The government, however, had continued to argue in favour of upholding the provision, in light of the need to exercise 'reasonable restrictions' on the freedom of speech and expression of internet users. The government had concluded its arguments contending that Section 66A should not be declared unconstitutional merely because of the possibility of its 'abuse', and assuring the Court that the government will not misuse the same.

In the final judgement delivered today, the SC has held that Section 66A is vague, nebulous and arbitrary, clearly violating Article 19(1)(a) of the Constitution, and must therefore, be struck down. The SC opined that the provision fails to fulfil any test of 'reasonable restriction' provided under Article 19(2) of the Constitution, and could therefore, no longer be permitted to remain in the IT Act.

It now remains to be seen whether the government accepts the decision with grace, or decides to amend the IT Act, seeking to insert a revised provision similar to Section 66A, but with procedural safeguards.

It would seem unnecessary, given the fact that the government continues to have the power to block websites in the interest of sovereignty and integrity of India, defence of India, security of the State, and friendly relations with foreign States or public order. Also, offences such as defamation, obscenity, rioting, and incitement to commit other offences, are already covered under other provisions of the IT Act as well as the Indian Penal Code.

The author is Associate, J. Sagar Associates. Views are personal