In the wake of Shiv Sena leader Bal Thackeray’s death in 2012, two girls were arrested in Mumbai for allegedly making disparaging comments on Facebook. The arrestees were ultimately released due to wide criticism across the country. It was thereafter claimed by the public the police often exploits or misuses its powers by invoking Section 66A of the Information Technology Act, 2000 (“IT Act”) and curtails the fundamental right to freedom of speech & expression enshrined under Article 19(1)(a) of the Indian Constitution. 

Section 66A provided, “any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine.” As a cognizable offence, the police could arrest a person without a warrant from a Magistrate. Section 66A was widely used to arrest individuals who were publishing any anti-establishment view that thegovernment termed as ‘obnoxious content’. 

Numerous petitions that were filed to strike down section 66A of the IT Act were clubbed and heard together in the case of Shreya Singhal v Union of India (“Shreya Singhal”). Shreya Singhal invalidated section 66A of the IT Act as being unconstitutional. The Supreme Court of India held that the prohibition of dissemination of information by means of a computer resource or a communication device which intends to cause annoyance; inconvenience or insult to anyone is beyond the limit of reasonable restrictions which are imposed under Article 19(2). Terms such as ‘inconvenience’ or ‘annoyance’ were declared as being broad and vague.  

Constitutionality of Section 66A of the IT Act

Typically there are three ingredients to the right to freedom of free speech and expression viz, (a) the discussion of the cause; (b) the advocacy of its factual existence; and (c) provocation among people. Article 19(1)(a) of the Constitution guarantees the rights to discussion and advocacy of any fact and/or opinion, and in the interests of the general public,Article 19(2) permits the imposition of reasonable restrictions. The imposition of reasonable restrictions is considerednecessary to protect public harmony, avoid turmoil, and protect the autonomy & integrity of the country. 

However, such restrictions have to be “reasonable” and rational. Section 66A did not pass musters of reasonability and rationality since it enabled the police to misuse its powers and act according to their whims and fancies. 

Ambiguity in the Provision 

The Supreme Court in Shreya Singhal held that the terms used in Section 66A were very ambiguous and vague. Due to this, the executive authority faced difficulties in identifying the basis to bifurcate the expressions falling under the purview of section 66A from those that didn’t. The term “offensive” holds a wide connotation and was open to wide, subjective interpretations; what might be innocuous for one person could be offensive to another and eventually could lead to a complaint. 

Section 66A permitted whimsical interpretations by law enforcement agencies, thus defeating the purpose of true and fair judgment. Therefore, section 66A, as a piece of legislation holding ambiguities in interpretation was declared to be void. 

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