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Section 66 IT Act

The Supreme Court struck down a sweeping law that allowed police to jail people for online posts thought to be offensive, with potentially far-reaching consequences for civil liberties and the right to free speech in India.

After three years of protests by free speech campaigners and others, a bench comprising justices J. Chelameswar and Rohinton F. Nariman held the section 66A of the Information Technology (IT) Act, 2000, to be unconstitutional.

“Section 66A is unconstitutional and we have no hesitation in striking it down,” declared justice R.F. Nariman, reading out the judgement. They added: “The public’s right to know is directly affected by section 66A.”

The apex court ruled that the controversial section 66A is “open ended, undefined, and vague” with every expression used in it “nebulous in meaning”. “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,” the court said.

While it is S.66A that has garnered maximum attention, the judgment also considered the validity of other provisions of the IT Act namely Section 69A and 79 along with the Rules made thereunder. Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 authorise the Central Government to block or order an intermediary (such as Facebook, YouTube or any internet/ telecom service provider) to block access by the public of any content generated, transmitted, stored, etc. in any computer resource, if it is satisfied that such content is likely to create communal disturbance, social disorder or affect India's defence and sovereignty, etc..

The Supreme Court however did not strike these provisions down but instead upheld the constitutional validity of the Power given to the government under S.69A to block website content in certain circumstances. Further, S.79 has been ‘read down’ to mean that intermediaries shall be required to block content only in accordance with a Court Order or a notification issued to this effect by the Government or its agency. While the Supreme Court has undone the need for intermediaries to undertake self-policing and self-determination of the nature of content, it has allowed the government to direct intermediaries to disable information deemed “harmful/inciteful, etc.” on their websites/server space.

The visible paradox here is that both provisions i.e. S.66A and 69A, stipulate vague grounds on which action, albeit different in nature, can be taken against objectionable content. The lack of distinct principles to outline the ambit of S.66A gave the Police no yardstick with which to ascertain the veracity and severity of allegations made regarding content being “annoying/offensive”. If the same logic is extended to 69A, the Court has failed to explain as to how in the absence of any specific test/guidelines, an official of the government can be expected to correctly interpret whether any content is liable to disturb public order, the security and defence of India, etc. Nevertheless, while one provision (namely S.66A) has been deemed unconstitutional owing to its vague phraseology, the other (S.69A), notwithstanding its ambiguity has been retained, thus putting a question mark over the uniformity of the Court’s rationale.

The Court has founded its decision to repeal S.66A essentially on its potential to cause an obstruction to free speech. The dichotomy is that by upholding S.69A, this judgment continues to provide political/Government authorities with an avenue to “restrict free speech” by issuing an order on vague grounds to filter any published content if they do not find the same to be agreeable.