‘Such is its reach (that) its chilling effect on free speech would be total’

Written by Utkarsh Anand | New Delhi 

A look at the major points argued by the government in defence of IT Act Section 66A and how the bench of Justices J Chelameswar and Rohinton F Nariman discarded them.

Legislature vs judiciary

Government: The legislature is in the best position to understand the needs of the people. The court will, therefore, interfere with the legislative process only when a law is clearly violative of the fundamental rights. There is a presumption in favour of the constitutionality of an enactment.

Court: Even the legislature cannot pass any law that may impinge upon any of the fundamental rights enshrined under the Constitution. Therefore, it is not open to the state to curtail freedom of speech to promote the general public interest. Section 66A, in creating an offence against persons who use the Internet and annoy or cause inconvenience to others, very clearly affects the freedom of speech and expression of the citizenry of India at large in that such speech or expression is directly curbed by the creation of the offence contained in Section 66A. It also affects people’s right to know and no such law can pass the muster of constitutionality.

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‘Reasonable restriction’

Government: Section 66A forms “reasonable restriction” as provided under Article 19(2) on the right to speech and expression.

Court: Section 66A has no connection with any of the grounds mentioned under the ambit of “reasonable restriction.” The messages that can be termed as “offensive” and “menacing” for the purpose of initiating proceeding under 66A did not have to relate to public order, decency or morality, defamation or incitement, and hence this law failed to qualify under Article 19(2).

Vagueness

Government: Mere vagueness of a law and its possibility of misuse cannot lead to declaring it invalid.

Court: Doctrine of vagueness is held to be a facet of constitutional law. The expressions used in 66A are completely open-ended and undefined, with no manageable standards laid down either for a prospective offender of Section 66A or for the authorities who are to enforce this law. It is clear that Section 66A is unconstitutionally vague and is to be held to offend the Constitution since its vagueness takes away a guaranteed freedom. Such is the reach of the section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total, as per the court.

Alternatives

Government: A court would construe a statute in order to make it workable and in doing so can read into it or read down its provisions. Also, the unconstitutional portion could be severed to save the rest.

Court: The submission is vague and the government does not indicate which part or parts of Section 66A can possibly be saved. Section 66A purports to authorise the imposition of restrictions on the fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action. It must, therefore, be held to be wholly unconstitutional and void. Reading into Section 66A what has never been provided by the legislature would mean an entire substitution of the provision and it can’t be done.

Free speech

Government: We are committed to free speech and that Section 66A would not be used to curb free speech, but would be used only when excesses are perpetrated by persons on the rights of others.

Court: If 66A is otherwise invalid, it cannot be saved by an assurance from the government that it will be administered in a reasonable manner. Governments may come and governments may go but 66A goes on forever. An assurance from the present government, even if carried out faithfully, would not bind any successor government. It must be held that 66A must be judged on its own merits without any reference to how well it may be administered.

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