Historic day for freedom of speech and expression in India

The article by Vidushi Marda was published in Bangalore Mirror on March 25, 2015.

Hearing a batch of writ petitions, the bench comprising Justices Rohinton F Nariman and J Chelameswar considered the constitutionality of three provisions of the Information Technology Act, 2000. The provisions under consideration were Section 66A, dealing with punishment of sending offensive messages through communication services, Section 69A which discusses website blocking and Section 79, dealing with intermediary liability.

The intent behind Section 66A was originally to regulate spam and cyber stalking, but in the last seven years not a single spammer has been imprisoned.

Instead, innocent academics have been arrested for circulating caricatures. The Court struck down the section in its entirety, declaring it unconstitutional.

It held that the language of the section was "nebulous" and "imprecise" and did not satisfy reasonable restrictions under A. 19(2) of the Constitution of India.

Section 79 was meant to result in the blossoming of free speech since it stated that intermediaries will not be held liable for content created by their users unless they refused to act on take-down notices. Unfortunately, intermediaries were unable to decide whether content was legal or illegal, and when the Centre for Internet and Society in 2011 sent flawed take-down notices to seven prominent national and international intermediaries, they erred on the side of caution and over-complied, often deleting legitimate content. By insisting on a court order, the Supreme Court has eliminated the chilling effect of this Section.

Block orders issued by the Indian government to telecom operators and ISPs were shrouded in opacity.

The process through which such orders were developed and implemented was not within public scrutiny. When a film is banned, it becomes part of public discourse, but website blocking does not enjoy the same level of transparency. The person whose speech has been censored is not notified or given an opportunity to be heard as part of the executive process. Unfortunately, in dealing with Section 69A, the Court chose to leave it intact, stating that it is a "narrowly drawn provision with several safeguards."

On balance, this is a truly a landmark judgment as it is the first time since the 1960s that the Supreme Court has struck down any law in its entirety for a violation of free speech.