By Samik Mukherjee, Senior Counsel & Government Relations Manager for Intel in India
In an important decision delivered last month, India’s Supreme Court held that Section 66A of the Information Technology Act (IT Act) was unconstitutional. Section 66A states that any person sending information which causes “..annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity..” will be liable for imprisonment for up to three years and a fine.
The court held that the section was unconstitutional because:
- it was ulta virus of Article 19 of the Constitution which guarantees Indian citizens a fundamental right to free speech and expression. The Court held; “…that “undesirables” or their “annoying conduct” may not be punished.”
- the Court further reasoned; “that the Section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth”.
- the language and drafting of the Section is vague, open ended and un-defined. The Court relied on an earlier judgment which held that; “Vague laws offend several important values. It is insisted or emphasized that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.”
The Supreme Court however upheld the constitutional validity of two other Sections of the IT Act, Section 79 and Section 69A. Section 79 which required ‘intermediaries’ (such as Facebook, Youtube) to remove links upon receipt of a court order or an order from the executive branch. However, the Supreme Court has held the executive branch can only issue such orders if the specific criteria mentioned in the section are satisfied and this includes describing why it believes that the web link must be blocked. Such an executive order can be challenged in a writ court (that is a High Court or the Supreme Court). However, the Court held that intermediates must proactively ‘judge’ which links must be taken down thus reducing the burden on them to do so.
The Court also upheld the Constitutionality of Section 69A of the IT Act under which the Government can block access to certain sites if: (i) a Court directs the intermediary to do so; or (ii) the Central Government concludes that blocking of such website is required under the specific grounds mentioned in the section such as sovereignty and integrity of India, defense of India or the maintenance of public order.
The Supreme Court’s decision has been well received by all stakeholders. Rarely has an Indian Court come out and spoken so strongly in favor of protecting freedom of speech on the Internet and in so doing clarified that the fundamental rights enshrined in the Constitution extend to ‘cyber space’. At the same time the Court has also acknowledged the need for some restrictions when critical issues of public order and security are involved.
The decision will help clarify some questions concerning the rights of Indians while using internet. However, cyberspace is ever evolving and many other issues concerning the IT Act remain and several other issues will continue to emerge in the future. It is important that the major stakeholders in this debate- the Government, ICT companies and Civil Society work together to ensure that the law respects freedom of speech while narrowly defining any exceptions so that they are consistent with Indian values. As many commentators have pointed out, the major concern with Section 66A was not the intent but the language used by drafters which left it open to abuse. Indeed, the Prime Minister, who was a vocal critique of Section 66A, noted that “There is shortage of quality manpower for drafting laws“. Stakeholders have an important role in helping the Government achieve its objectives provided that they are given adequate opportunity to do so. For example, India’s telecom regulator, TRAI, follows a robust consultation process prior to promulgating new regulations. Intel, and the wider ICT industry, looks forward to contributing to this process and to a greatly improved ICT regulatory framework for India.