Brief Facts and Procedural History:
Section 66A of the Information Technology Act, 2000 came into force by virtue of an Amendment Act of 2009. The petitioner in the present writ petition has thus challenged the constitutional validity of section 66A. The petitioner has claimed that Section 66A has given rise to new forms of crimes which is incorrect. The petitioner challenges the constitutional validity of the act on the following grounds:
- It infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered in Article 19(2).
- This section in creating an offence suffers from the vice of vagueness because of which the innocent persons are roped in as offenders.
- The enforcement of the said section would really be an insidious form of censorship which impairs a core value contained in Article 19(1)(a).
- The said section infringes the rights of the individual under Articles 14 and 21 in as much there is no intelligible differentia between those who use the internet and those who by words spoken or written use their mediums of communication.
Issue 1: Whether Section 66A of the Information Technology Act is constitutionally valid or not?
Ratio: India is a sovereign, democratic and republic country as has been stated in the preamble of the Constitution. It cannot be overemphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme. The content of the expression “freedom of speech and expression” is thus three: discussion, advocacy, and incitement. It is only when all these three contents are fulfilled that Article 19(2) is applied. Under our constitutional scheme, it is not open to the state to curtail freedom of speech to promote the general public interest. If a public order under section 19(2) is violated by a law then that law is unconstitutional and void for public order is synonymous with public safety and tranquillity. The test to identify whether the public order has been infringed or not is to ask a question: Does a particular act lead to disturbance of the current life of the community or does it merely affect an individual leaving the tranquillity of society undisturbed?
Where no reasonable standards are laid down to define guilt in a section which creates an offence and where no clear guidance is given to either law-abiding citizens or to authorities and courts, a section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable. It is quite clear that the expressions used in section 66A are completely open-ended, vague and undefined language.
Further, a prospective offender of section 66A and the authorities who are to enforce section 66A have absolutely no manageable standard by which to book a person for an offence under section 66A. Thus section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right. 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.
Additionally, there is an intelligible differentia between speech on the internet and other mediums of communication for which separate offences can be created by the legislation. Thus section 66A is not discriminatory under Article 14.
Decision Held: Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).
Issue 2: Whether Section 69A and the Rules are unconstitutional?
Ratio: Section 69A is narrowly drawn provision with several safeguards. Further, the rules are also not constitutionally infirm in any manner. The rules, however, does not mention certain additional safeguards such as those found in section 95 and section 96 of CrPC but the rules cannot be said to be invalid for this very reason.
Decision Held: Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access to Information by Public) Rules 2009 are constitutionally valid.
Issue 3: Whether Section 79(3)(b) and Information Technology “Intermediary Guidelines” Rules, 2011 is constitutionally valid or not?
Decision Held: 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 judgment.
Issue 4: Whether Section 118(d) of the Kerala Police Act is valid or not?
Decision Held: Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2).