Victory for free speech in India

The high court struck down a ban on 'offensive' online comments on Tuesday.

India's top court on March 24, 2015 struck down a controversial law that made posting 'offensive' comments online a crime punishable by jail, after a long campaign by defenders of free speech. Indranil Mukherjee/AFP Photo

NEW DELHI // In a huge victory for free speech campaigners, India’s supreme court on Tuesday struck down an “inherently unconstitutional” legal provision that allowed police to arrest people for Facebook and Twitter posts deemed offensive.

Judges Rohinton Nariman and J Chelameswar said Section 66A of the Information Technology Act cramped freedom of expression, was unlikely to incite public disorder and was “vague in its entirety”.

“Our constitution provides for liberty of thought, expression and belief,” Mr Nariman said. “In a democracy, these values have to be provided within a constitutional scheme.”

The verdict was the culmination of a three-year struggle by lawyers, NGOs and civil society groups in response to a spate of arrests across India for comments posted on social media.

Section 66A provides for imprisonment of up to three years or a fine for anyone found guilty of sending messages that are “grossly offensive” or “menacing” in character. But as the supreme court pointed out, the section does not define these terms objectively.

Moreover, “being grossly offensive or having a menacing character are not offences under the Penal Code at all,” the judges wrote in their 122-page verdict.

V V Sivakumar, a Chennai-based partner at the law firm Dua Associates, said the constitution allowed restrictions on speech only when there was a “clear and present danger” of defamation, contempt of court, or threats to national security and public order.

“The vagueness of 66A left very little room for sarcasm, for instance, because who’s to say what is offensive?” said Mr Sivakumar. “The law was so badly phrased that it had to be struck down. The government could have asked to rephrase it and saved itself some egg on its face, but it didn’t choose to do that.

The initial petition against Section 66A was filed in 2012 by law student Shreya Singhal after the arrest of two young women in November that year. Lawyers and civil liberties groups joined the suit over the years.

A day after the death of the Mumbai politician Bal Thackeray, Shaheen Dada, one of the two women arrested, criticised the way his party forced the city to come to a halt by demanding that transport and services be suspended as a show of respect.

“Respect is earned, not given out, definitely not forced,” Ms Dada, wrote on Facebook. “Today Mumbai shuts down due to fear, not due to respect.” Her friend, Rinu Srinivasan, “liked” and shared Ms Dada’s post.

Members of Thackeray’s Shiv Sena party pressured the police to arrest the women and charge them under Section 66A. They were released on bail of 15,000 rupees (Dh884) each, and the charges were dropped a month later, but the incident provoked anger around the country.

There have been other arrests as well.

Earlier in 2012, a businessman in Puducherry was charged over “offensive” remarks against the son of cabinet minister P Chidambaram, and a university professor in Kolkata was arrested for forwarding caricatures of the West Bengal chief minister Mamata Banerjee.

Last year, after the election of prime minister Narendra Modi, a young man in Goa was arrested for saying on a Facebook forum that Mr Modi would unleash a “holocaust” in the country.

As recently as last week, a 16-year-old student was arrested for allegedly posting a Facebook remark offensive to the Uttar Pradesh state minister Azam Khan.

“I am very happy with this verdict. We have fought for three years,” Ms Singhal said. “A law has to be for the people. No one should fear ... putting something up due to fear of jail.”

India’s two main political parties hastened to fall in with popular acclaim for the supreme court’s decision, contradicting their previous stance.

Section 66A was added by the previous Congress-led government. Yet a Congress spokesman, Sanjay Jha, tweeted on Tuesday: “Delighted that #66A has been scrapped by Supreme Court; it had an implicit threat of criminal intimidation. Free speech reigns supreme.”

Mr Modi’s Bharatiya Janata Party criticised Section 66A when it was in the opposition, but defended the provision after coming to power last May.

The BJP government’s additional solicitor general Tushar Mehta told the Supreme Court in February that Section 66A needed to stand because the internet had “no checks and balances or licenses”.

After Tuesday’s verdict, the BJP spokesman Nalin Kohli called it “a landmark day for freedom of speech and expression”.