In a landmark verdict, the Supreme Court on Tuesday struck down a controversial provision in the cyber law providing for arrest for posting allegedly "offensive" content on websites saying, it is "unconstitutional" and has a "chilling effect" on freedom of speech and expression.
The apex court also held that the expressions used in section 66A of the Information and Technology Act, which had been used by various administrations against inconvenient posts in the cyber space, are "completely open-ended and undefined".
However, the bench turned down the plea to strike down section 69A and Section 79 of the Act which deal with the procedure and safeguards for blocking sites and exemption from liability of intermediaries in certain cases respectively.
It is clear that the impugned provision of Sec 66A "arbitrarily, excessively and disproportionately" invades the right of free speech and upsets balance between such right and reasonable restrictions that may be imposed, the court held.
The provision, which had come under the scanner of the court after two Mumbai girls were arrested for posting and liking a comment on Facebook relating to shutdown in the city following Shiv Sena leader Bal Thackeray's death, was also invoked recently against a youth in Uttar Pradesh for his post on the state minister Azam Khan.
The court examined the validity of the provision by referring to various aspects relating to the freedom of speech and expression under Article 19 (1) (a) and 19 (2) of the Constitution which deals with reasonable restrictions and its impact on Article 14 and 21 which relate to the right to equality and personal liberty respectively.
While quashing section 66A, which was brought through an amendment by previous UPA government and defended by present NDA regime, a bench of justices J Chelameswar and R F Nariman said, "Incidentally, none of the expressions used in Section 66A are defined.
"Even 'criminal intimidation' is not defined and the definition clause of the Information Technology Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this Act."
Regarding the other two sections, the court said "Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid.
"Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material.
"Similarly, the Information Technology 'Intermediary Guidelines' Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgement," said the bench in its 123-page judgement.
The bench assailed the provision, which in the recent past has resulted in indiscriminate arrests, on the ground of its "chilling effect and over breadth".
"We, therefore, hold 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 over breadth," the court said.
The apex court also held that the expressions used in section 66A of the Information and Technology Act, which had been used by various administrations against inconvenient posts in the cyber space, are "completely open-ended and undefined".
However, the bench turned down the plea to strike down section 69A and Section 79 of the Act which deal with the procedure and safeguards for blocking sites and exemption from liability of intermediaries in certain cases respectively.
It is clear that the impugned provision of Sec 66A "arbitrarily, excessively and disproportionately" invades the right of free speech and upsets balance between such right and reasonable restrictions that may be imposed, the court held.
The provision, which had come under the scanner of the court after two Mumbai girls were arrested for posting and liking a comment on Facebook relating to shutdown in the city following Shiv Sena leader Bal Thackeray's death, was also invoked recently against a youth in Uttar Pradesh for his post on the state minister Azam Khan.
The court examined the validity of the provision by referring to various aspects relating to the freedom of speech and expression under Article 19 (1) (a) and 19 (2) of the Constitution which deals with reasonable restrictions and its impact on Article 14 and 21 which relate to the right to equality and personal liberty respectively.
While quashing section 66A, which was brought through an amendment by previous UPA government and defended by present NDA regime, a bench of justices J Chelameswar and R F Nariman said, "Incidentally, none of the expressions used in Section 66A are defined.
"Even 'criminal intimidation' is not defined and the definition clause of the Information Technology Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this Act."
Regarding the other two sections, the court said "Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid.
"Section 79 is valid subject to Section 79(3)(b) being read down to mean that an intermediary upon receiving actual knowledge from a court order or on being notified by the appropriate government or its agency that unlawful acts relatable to Article 19(2) are going to be committed then fails to expeditiously remove or disable access to such material.
"Similarly, the Information Technology 'Intermediary Guidelines' Rules, 2011 are valid subject to Rule 3 sub-rule (4) being read down in the same manner as indicated in the judgement," said the bench in its 123-page judgement.
The bench assailed the provision, which in the recent past has resulted in indiscriminate arrests, on the ground of its "chilling effect and over breadth".
"We, therefore, hold 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 over breadth," the court said.