Supreme Court declared Section 66A of Information Technology Act, 2000 as unconstitutional

The Supreme Court (SC) of India on 24 March 2015 declared Section 66A of the Information Technology (IT) Act, 2000 as unconstitutional and struck it down. The section empowers law enforcement agencies to arrest those who post objectionable content online and provides for a three-year jail term.

It declared Section 66A as unconstitutional because
• It violates the citizens fundamental right to freedom of speech and expression provided in the Article 19 (1)(a), not saved by Article 19(2), of the Constitution of India.
• The vagueness of language used in the Section 66A (like the words grossly offensive and of menacing character) is prone to misuse by enforcement authorities.
• It cannot withstand the clear and present danger test and the tendency to create public disorder test as given in Article 19(2) of the Indian Constitution. Article 19(2) provides for enactment of law by the state to provide reasonable restrictions on the provisions contained in Article 19(1)(a).

The land mark judgment was delivered by a SC bench of Justices J Chelameswar and RF Nariman on a batch of petitions challenging the Section 66A of the IT Act, 2000.

The first Public Interest Litigation (PIL) was filed by Shreya Singhal in 2012 wherein she sought amendment to the Section 66A after two girls were arrested under this section in Thane district for criticizing shutdown in Mumbai following Shiv Sena leader Bal Thackray’s death in a facebook post.

In Shreya Singhal vs. Union of India case the apex court had come out with an advisory on 16 May 2013. As per the advisory, a person, accused of posting objectionable comments on social networking sites, cannot be arrested without police getting permission from senior officers like Inspector General (IG) or Deputy Commissioner of Police (DCP).

Further, in early 2015 the SC had said that Section 66A IT Act, cannot be quashed on the ground that it does not have mens rea (motive or knowledge of wrongdoing) as one of the pre-requisites to constitute an offence within the meaning of aforesaid section.

About Section 66A of IT Act
Section 66A provides for punishment for sending offensive messages through communication service, etc.
It says that any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three years and with fine.