Section 66-A of IT ACT is declared unconstitutional

The Supreme Court today relying upon two Constitution Bench Judgment ( Kameshwar Prasad case (1962) and Ram Manohar Lohia case, (1960)) struck down Section 66-A of Information Technology Act,2000 along with Section 118(d) of the Kerala Police Act. However, they maintained the validity of Section 69A and the Information Technology (Procedure &
Safeguards for Blocking for Access of Information by Public) Rules 2009.

SHREYA SINGHAL v. UNION OF INDIA
WRIT PETITION (CRIMINAL) NO.167 OF 2012

Judgment Dated : 24/03/2015

CORAM : J. Chelameswar .J , R.F. Nariman .J

CATCHPHRASE:

10 important grounds for striking down Section 66-A of the Act.

1. Comparative Analysis of Art.19(1)(a) and US First Amendment.( Refer Para 15, 17)

2.Three concepts which are fundamental in understanding the reach of this most basic of human rights. i) Discussion , ii) Advocacy and
iii) Incitement.

Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in. ( Also refer Para 44)

3. The Definition of " INFORMATION" under the act does not refer what the content of information can be but it only refers to the medium through which such information is disseminated.

4. Public order is synonymous with public safety and tranquility.
(Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 S.C.R. 821)

5. A Section which creates an offence, and where no clear guidance is given to either law abiding citizens or to authorities and courts or a Section which creates an offence and which is vague must be struck down as being arbitrary and unreasonable. ( Refer para 52)

6.A penal law is void for vagueness if it fails to define the criminal offence with sufficient definiteness.( Refer para 56)

7. 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.

8.Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. ( Determination of Offensive and Grossly Offensive through Chilling Effect ad Overbreadth) Refer para 83

9. Possibility of an act being abused is not a ground to test its validity. ( Refer para 91)
( This contention was submitted by the Respondent but The Apex Court on a lighter note stated that it cannot be saved by an assurance from the learned Additional Solicitor General that it will be administered in a reasonable manner. Governments may come and Governments may go
but Section 66A goes on forever. An assurance from the present Government even if carried out faithfully would not bind any successor Government.It must, therefore, be held that Section 66-A must be judged on its own merits without any reference to how well it may be administered. )

10. With regard to procedural unreasonablility under CrPC that has been laid due to Section 66-A of the act , the court held that a statute cannot be dissected and then examined as to under what field of legislation each part would separately fall.

11. Merely because certain additional safeguards such as those found in Section 95 and 96 CrPC are not available does not make the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.Rules constitutionally infirm. ( Refer para 111)

12. There are only two ways in which a blocking order can be passed – one by the Designated Officer after complying with the 2009 Rules and the other by the Designated Officer when he has to follow an order passed by a competent court.( Refer para 116)