The Supreme Court struck down Section 66-A of the Information Technology Act, 2000, on Tuesday.
Pronouncing their verdict on a PIL filed against the section in a packed courtroom, which empowers the police to arrest a person for allegedly posting ‘offensive materials' on social networking sites, a Bench of Justices J Chelameswar and RF Nariman said the section violated the fundamental right to freedom of speech and expression and was therefore was illegal.
Terming liberty of thought and expression as "cardinal", the Bench said: “The public's right to know is directly affected by Section 66-A of the Information Technology Act."
"Section 66-A of the IT Act is struck down in its entirety," said the apex court bench of Justice J. Chelameswar and Justice Rohinton Fali Nariman.
"Our Constitution provides for liberty of thought, expression and belief. In a democracy, these values have to be provided within constitutional scheme," said Justice Nariman, pronouncing the verdict.
"There is no nexus between public order and discussion or causing annoyance by dissemination of information. Curbs under Section 66A of the IT Act infringes on the public right to know."
Calling the written word of the provision, which comprises terms such as ‘"annoying", "inconvenient" and "grossly offensive", vague, the apex court said: “What may be offensive to a person, may not be offensive to others".
The assurance given by one government was not binding on its successor, the Bench said. "Governments come and go but Section 66-A will remain forever," the bench said.
The SC, however, refused to strike down two other provisions of the IT Act that provide blocking of websites.
The verdict comes following cases of persons being arrested for their posts on social networking sites. Most recently, a Class 12 student was arrested over a Facebook post on UP leader Azam Khan.
The first PIL seeking the scrapping of the law was filed in 2012 by a law student after two girls were arrested in Palghar in Maharashtra over a Facebook post immediately following then Shiv Sena supremo Bal Thackerey’s death.
BJP to take “structured view”
Hours after the Supreme Court scrapped Section 66-A of the Information Technology Act, 2000, the Government on Tuesday claimed it differed with previous UPA regime's stand on the provision.
In a letter addressed to the apex court, the government said that it respects freedom of speech and expression and was never in favour of curtailing communication of honest dissent or criticism on social media.
The government, however, also said it was willing to enact additional, more stringent guidelines so as to prevent abuse of Section 66A of the Act which allows arrest of a person for posting allegedly "offensive" content on websites.
"Our government led by Prime Minister Narendra Modi took a very conscious decision that we don't support the stand of the previous government. We respect the freedom of speech and expression. We respect communication of ideas on social media and we are not in favour of curtailing communication of honest dissent, opinion, disapproval or criticism on social media," Union IT Minister Ravi Shankar Prasad said.
In his initial comments on the Supreme Court verdict, he said the government had stressed that it would not support any interpretation of Section 66-A of IT Act that curtailed the ideas of freedom of speech and expression enshrined under Article 19(1) of the Constitution.
"It is very important to be noted that in our affidavit filed, apart from reiterating our new position on behalf of Government of India, we have clearly conveyed that if Section 66A of the IT Act cannot be interpreted in consonance with Article 19(1) read with Article 19(2), then we don't support that interpretation at all," he said.
Prasad had also said he would make a more structured response once he reads the entire judgment that runs into 200 pages, he said.
"I am awaiting the judgment. The Government of India's stand is quite different from the previous government's and it has been very clear and consistent which I have just mentioned. I will come with a structured response after going through the judgemnt," he said.
Victims welcome verdict
Renu Srinivasan, who was arrested from Thane for liking a comment following the demise of Shiv Sena supreme Bal Thackeray, said after the verdict, people will no longer be afraid to speak their minds.
Her friend Shaheen Dhada, who had called to question the bandh that followed Thackeray’s death in Mumbai, said: “I am very happy today, I feel that justice has been granted to me after two years. The post for which we were arrested was not abusive or wrong: it was misunderstood. My family was always supportive of me and they never scolded me for this. Now no one has to be afraid of saying right things,” she said.
Jadavpur University professor Ambikesh Mahapatra, who was nabbed for circulating emails mocking West Bengal CM Mamata Banerjee but against whom charges were dropped later, called the landmark judgment a victory of common man.
“(It is a) Victory for common man: democratic and human rights of people has been protected,” he said.
The youngster arrested last week for posting comments on UP leader Azam Khan also hailed the order. “I am very happy and grateful to SC,” he said.
Provision poorly drafted: Chidambaram
Congress leader P Chidambaram also welcomed the Supreme Court judgment holding Section 66A of the IT Act as unconstitutional, saying it was poorly drafted and misused.
"I welcome the judgment of the Supreme Court holding that Section 66A of the IT Act is unconstitutional. The section was poorly drafted and was vulnerable. It was capable of being misused and, in fact, it was misused," he said.
The former Union Minister, who held the Home and Finance portfolios in UPA government, said there could be a case of misuse of freedom of speech and in such cases ordinary laws should apply and the offender should be dealt with under them.
"If some provisions of the law have to be strengthened, that could be considered. But Section 66A was not the answer," Chidambaram said.
The verdict, however, drew flak from certain quarters. Referring to the 2012 incident, Shiv Sena leader Sanjay Raut said: “Social media does have positive impact, but it's also being misused. Police must have some powers in their hands.” (With agency inputs)