Cross Section

The law is a profession of words and their use must be governed with precision, whether it is in the drafting of a statute, the signing of a contract, or the making of a constitution. Given the vague and ambiguous phrasing of the notorious Section 66A of the Information Technology Act 2000 — which makes any electronic communication via a computer or phone that is “grossly offensive” or made for the purpose of causing “annoyance” and “inconvenience” an offence — it is no surprise that the Supreme Court struck it down as unconstitutional. In holding it violative of the constitutional right to freedom under Article 19 (1) (a), the two-member Bench held that the impugned Section fails the “clear and present danger” test — the broad principle that free speech may not be proscribed unless it constitutes a true and immediate threat. The Court also held that 66A failed the public disorder test, “which ought to have been an essential ingredient of the offence it creates”.

The Court was rightly unmoved by government assurances that the Section would not be misused. Ever since it was introduced in the IT Act as an amendment in 2009, it has become a convenient handle for the police to harass innocent citizens for merely speaking their minds. Taking offence at what others say has become something of a national pastime and the country already labours under vague hate speech-like provisions such as Section 153A and Section 295A of the Indian Penal Code, which have been prone to frequent misuse by all too easily ‘outraged’ religious and caste formations to intimidate writers, artists and others who merely speak their mind. It is time we began looking at these provisions with a view to seeing how much of a chilling effect they have on free speech.

As the Court observed, 66A is so vague that neither would an accused know exactly what offence has been committed nor the authorities administering the law be clear as to whether what was said falls within or outside the purview of the Section. While the Court’s decision to strike Section 66A down in its entirety deserves an unreserved welcome, it is perhaps appropriate to temper the rejoicing with a couple of sobering thoughts. This was by no means the notorious section in the IT Act. Section 66A (b) takes the chilling effect a step further by making it a crime to send any information a person knows to be false via the internet for the purpose of causing annoyance, inconvenience, etcetera. Finally, it is hard to ignore that the arguments used against Section 66A are the very same that are routinely marshalled against the country’s Contempt of Court law, which empowers the higher judiciary to punish those who, in its view, have ‘scandalised’ it or lowered its authority. All in all, while the Supreme Court has delivered a good judgment, it could become a truly exceptional one if the principles espoused in it are applied more widely and consistently.

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