India: Historic Supreme Court ruling upholds online freedom of expression

Photo: © Manjunath Kiran/AFP/Getty Images

A landmark judgement by India’s Supreme Court striking down a vague and overly broad law on online expression is a defining moment for freedom of expression in the country, Amnesty International India said today.

Section 66-A of the Information Technology Act has been used on several occasions to prosecute people for legitimately exercising their right to free speech online, and has enabled arbitrary arrests and detention. The Supreme Court ruled that the law was “unconstitutionally vague” and overbroad, and “arbitrarily, excessively and disproportionately invades the right of free speech”.

The Supreme Court’s historic decision is a crucial victory for free speech and expression, and a reminder to the government about the importance of respecting this right.
Shemeer Babu, Programmes Director at Amnesty International India

“Political parties have often spoken in different voices about Section 66A. The Supreme Court’s historic decision is a crucial victory for free speech and expression, and a reminder to the government about the importance of respecting this right,” said Shemeer Babu, Programmes Director at Amnesty International India.

“However other problematic laws, including those on sedition and criminal defamation, are still on the books. The ruling should spurt the government to repeal these laws, and ensure that any restrictions on speech and expression are in line with international standards.”

Section 66-A criminalized several forms of online expression, including sending of information that was “grossly offensive” or persistently caused “annoyance, inconvenience, obstruction, insult, injury, enmity, hatred or ill-will”. The Supreme Court was hearing a batch of petitions filed by a law student and several civil rights groups challenging the law.

Emphasizing the importance of upholding freedom of expression, the Court ruled that Section 66A did not constitute a “reasonable restriction” on the grounds of public order, defamation, incitement to an offence and decency or morality that are recognized in the Constitution of India.

The Court stated: “Every expression used [in the law] is nebulous in meaning. 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… Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech.” It observed that Section 66A was liable “to be used in such a way as to have a chilling effect on free speech.”

The Supreme Court also struck down a clause of the Kerala Police Act as being constitutionally invalid for similar reasons. However the Court upheld Section 79 of the Information Technology Act relating to online intermediary liability. It introduced an additional safeguard, ruling that online intermediaries – like internet service providers - are required to take down content only following a court order, or notice from the government about an imminent illegal act. The Court also upheld Section 69A of the Information Technology Act and related laws relating to the blocking of websites.

“The government needs to ensure that laws relating to intermediary liability and website blocking are aligned with international standards”, said Shemeer Babu. “Any restrictions on online expression must be formulated precisely, and be necessary and proportionate to specified goals.”

“The internet should be a force for political freedom, not repression.”