The Supreme Court in India yesterday ruled that Section 66A of the Information Technology Act was unconstitutional. This part of the law allowed the authorities to make arrests for comments made on social media. The government’s argument that it deterred the uploading of offensive material might have been valid, but the wide-ranging arrests made under Section 66A proved that the law was detrimental to the fundamental rights of Indians. Score one for the good guys.
The trouble with Section 66A was just how sweeping the powers were that it gave to the authorities. The penalty for sending an email or other form of electronic message that “causes annoyance or inconvenience” was up to three years in prison. Jailing someone for sending an annoying tweet is hardly the hallmark of a free and open society.
Agence France Presse quoted Justice RF Nariman as saying in court.”Section 66A is unconstitutional and we have no hesitation in striking it down.”Justice Nariman added, “The public’s right to know is directly affected by section 66A.”
The BBC reported, “The law was first challenged by a law student after two young women were arrested in November 2012 in Mumbai for comments on Facebook following the death of politician Bal Thackeray. Shaheen Dhada was held for criticising Mumbai’s shutdown after Thackeray’s death. Renu Srinivasan, who ‘liked’ the comment, was also arrested. The two were later released on bail.”
Theirs was not an isolated case, either. The Beeb added these incidents:
- On 17 March 2015, a teenage student was jailed in the northern state of Uttar Pradesh for allegedly posting a comment on Facebook criticising state minister Azam Khan. The teenager was later freed on bail.
- In October 2012, a 46-year-old businessman in the southern city of Pondicherry was arrested for a tweet criticising Karti Chidambaram, son of then finance minister P Chidambaram. He was later released on bail.
- In September 2012, there was outrage when a cartoonist was jailed in Mumbai on charges of sedition for his anti-corruption drawings. The charges were later dropped.
- In April 2012, the West Bengal government arrested a teacher who had emailed to friends a cartoon that was critical of Chief Minister Mamata Banerjee. He too was later released on bail.
The Hindu newspaper said this morning, “the court said Section 66 A was unconstitutional because it failed two major tests – the clear and present danger test and the tendency to create public disorder test. The court also found the language used in the Section vague and nebulous saying it doesn’t properly define words like ‘offensive’ or even ‘persistent’.
“The court said it can’t go by government assurances that the Section won’t be misused as any assurance would not bind on successive governments. Section 66 A it said, would have to be judged on its own merits.
“The court said there is a difference between discussion, advocacy and incitement. Discussion & advocacy, no matter if annoying to some people, has to be allowed, it said.”
A billion people just had their freedom of speech reinforced. Sometimes, the good guys win.