The Supreme Court of India in its recent decision (Shreya Singhal v. Union of India) has held Section 66A of the Information Technology Act, 2000 (“IT Act”) to be unconstitutional, observing that the controversial provision is in violation of the of right to freedom of speech and expression envisaged under Article 19(1)(a) of the Constitution of India.

This section was introduced by way of an amendment to the Information Technology law of the country in the year 2009. It gave arbitrary powers to the police to make arrests for anything deemed ‘offensive’ or ‘annoying’ and has seen a number of arrests by the police in the recent years for comments posted on social networking sites relating to social events and political leaders. This gave rise to a number of petitions challenging Section 66A before the Supreme Court, the first being filed in 2012. The Supreme Court vide its order dated March 24, 2015 has disposed of these petitions together striking down the provision as conflicting with the fundamental right to speech and expression.

The bench comprising of Justice R F Nariman and Justice J Chelameswar was of the opinion the fundamental right is directly affected by Section 66A of the IT Act. The court has clarified that although the right to freedom of speech and expression is not absolute, the restrictions discussed under Article 19(2) of the Constitution would not cover Section 66A, as the restrictions could be justified only if there was a threat to public order or ‘clear and present danger’. However, Section 66A failed both these tests.

Further, the Supreme Court was of the opinion that Section 66A used expressions which are completely open-ended and undefined and observed that every expression used was nebulous in meaning. The court added that what may be offensive to one may not be offensive to another, what may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.

In its order, the court rejected the assurances given by the Government that it would apply the provision reasonably, saying an assurance of a government might not be heeded to by the next.

The Supreme Court, however, has turned down a plea to strike down Section 69A (deals with procedure and safeguards for blocking certain websites) and Section 79 (provides for the exemption from liability of intermediaries in certain cases) of the IT Act, which were also challenged by the petitioners. Nevertheless, the court has modified the provisions of these sections and mandated a court order or a government notification for an intermediary to take down content from a website. In relation to these provisions of law, the Supreme Court of India has observed that there are sufficient checks and balances in place and observed these to be constitutionally valid.