Indian Supreme Court Nullifies Controversial Internet Speech Law

In a decision being hailed by the Indian press, legal activists, and citizen journalists as a significant victory for freedom of expression, the Supreme Court of India has struck down Section 66A of the Information Technology Act of 2000. The controversial law allowed judges to impose fines and prison terms of up to three years for transmitting information deemed “grossly offensive” or “causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will.” In their successful petition, Shreya Singhal v. Union of India, civil society groups argued that Section 66A violated constitutional guarantees of speech and expression. On March 24, the high court agreed. “Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any opinion dissenting with the mores of the day would be caught within its net,” said Justice R.F. Nariman. “Section 66A is unconstitutional, and we have no hesitation in striking it down.”

Enacted in 2008 by the United Progressive Alliance government of Prime Minister Manmohan Singh after less than 30 minutes of debate, the law was supported by prominent ministers who argued that some recourse was needed for thousands of citizens who were victims of online stalking and abuse. The Bharatiya Janata Party (BJP) opposed the law, and BJP opposition leader Arun Jaitley, now minister of finance, corporate affairs, and information and broadcasting, criticized it in the upper house of Parliament. But after the BJP’s landslide victory in 2014, the party – now representing the government of India – appeared to change its position, defending the law in written submissions to the Court.

From the time of its adoption, the constitutionality of Section 66A was questioned by the Indian legal and free speech communities. A central concern was that the broad and vague language of the statute could be misused for political purposes, and several controversial prosecutions seemed to confirm these fears over the last two years, including 137 prosecutions in New Delhi alone.

In 2012, two young women, Shaheen Dhanda and Rinu Shrinivasan, were arrested for posting comments criticizing the government-sponsored shutdown in Mumbai following the death of Bal Thackeray, head of the Hindu fundamentalist Shiv Sena party. Although a Mumbai court later dropped the charges, the case was the first of a number of arrests across the country for uploading political cartoons or posting comments on social networks, arrests which sparked widespread outrage and charges of online censorship. In 2014, Devu Chodankar was arrested in Goa for writing on Goa+, a popular Facebook forum with over 47,000 members, that if the BJP’s Narendra Modi became prime minister, he would unleash a “holocaust.” Jadavpur University Professor Ambikesh Mahapatra was arrested in Kolkata for forwarding an email containing a cartoon about West Bengal Chief Minister Mamata Banerjee.

The immediate impact of the Court’s ruling is that posting “offensive” comments online is no longer a crime punishable by imprisonment and fines. By simultaneously invalidating a State of Kerala law that also punished “online annoyance,” the Court appears to have adopted a strict scrutiny standard for such laws, insisting that they be narrowly tailored to achieve the government’s stated objectives of maintaining public order or preserving decency or morality, without casting a wide net over free speech and expression online. The Court did not accept the BJP government’s argument that, if it found Section 66A unconstitutional in its present form, it should “read down” (mitigate) the law, rather than repeal it, by imposing additional safeguards. In 2013, the Court rejected a similar argument with regard to the vagueness and arbitrary application of the Indian law penalizing homosexuality in Koushal v. Naz Foundation.

In what Indian civil society and citizen journalists have rued as a missed opportunity, the Court did not rule on whether the lack of procedural safeguards for arrest and prosecution was an additional reason to invalidate the law. Such a finding might have put pressure on the Indian government to add due process elements to future legislation, making arbitrary or politically motivated enforcement less likely. And the Court upheld Section 69A of the Act, which allows the government to block websites, and Section 79(3), which makes intermediaries such as YouTube or Facebook liable for not complying with government censorship orders.

The Court thus appeared to signal some leeway for the government to introduce a fresh Internet speech law, by recognizing that the Internet differs from traditional media and may merit special regulation. This comes at a time, however, when governments across the region are stepping up efforts to filter or censor digital speech, with a raft of new legislation regulating intermediaries such as internet service providers, social networks, and search engines. In Pakistan, a national filtering system for up to 50 million websites is being built; Vietnam has enacted Article 258, which punishes “abusing democratic freedoms against the interests of the state;” Indonesia’s ITE law regulates online conversations and allows any citizen to sue anybody else if they feel offended; and Malaysia passed Section 114A of the Evidence Act, which makes any Internet user, administrator, or operator liable for speech they reference, blog about, or host. In this context, the Indian Supreme Court’s decision is a beacon for free speech and expression that may provide a moderate template for other governments in the region to regulate Internet speech while preserving the online marketplace of ideas that is flourishing in India and greater South Asia.

Surya Sayed-Ganguly is the Senior Director of Global Information Services at The Asia Foundation and a public interest attorney. He can be reached at [email protected]. Chetan Gupta is a practicing human rights lawyer before the Supreme Court of India. A graduate of Oxford University, he has previously clerked for Justice Pasayat at the Supreme Court. He can be reached at [email protected]. The views and opinions expressed here are those of the authors and not those of The Asia Foundation.