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In landmark ruling, India's Supreme Court chooses to protect online speech

An Indian man surfs the internet on his smartphone outside a railway station in Mumbai on 24 March 2015
An Indian man surfs the internet on his smartphone outside a railway station in Mumbai on 24 March 2015

AP Photo/Rafiq Maqbool

This statement was originally published on on 24 March 2015.

By Jayshree Bajoria, South Asia researcher at Human Rights Watch

"It cannot be over-emphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance." With these words, India's Supreme Court, in a landmark judgment on March 24, struck down Section 66A of the Information Technology Act and upheld the right to freedom of speech and expression.

Section 66A criminalized an incredibly broad range of speech, such as content that is "grossly offensive," "has menacing character," or causes annoyance or inconvenience, and provides punishment of up to three years in prison. The Supreme Court concluded that the section was overbroad and vague, and would have a chilling effect on free speech.

"Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net," the two-judge bench noted. Several people have been arrested under this provision in recent years for their online content or posts on social networking sites, including students, a university professor, and a political cartoonist.

Among the first to challenge Section 66A in the Supreme Court was law student Shreya Singhal who filed a petition in 2012 after two young women in Maharashtra state were arrested for a post on Facebook questioning the shutdown of Mumbai following the death of a powerful political leader. But a wide range of parties joined the appeal, including a rights group, a member of parliament, a private Internet company, and an industry association.

The government defended the law, saying that given the reach and impact of the medium, it was needed to preserve public order. "Morphing of images can be done and put on internet or some rumour can be spread through internet which can create social disorder in society," the government's lawyer argued in court.

However, the judges disagreed, saying Section 66A neither passed the test of "clear and present danger" nor the tendency to create public disorder. The judges instead ruled that the restrictions were unconstitutional.

The court also examined other provisions of the law, including Section 79 of the Information Technology Act and subsequent rules that require intermediary companies (such as online service providers) to censor content posted by third parties. The judges upheld the section and the rules, but said that now a court order or a notification from an appropriate government agency would be required before an intermediary is liable to take down information that is restricted.

The court has left intact Section 69A, which allows for blocking of online content on certain grounds and the rules that lay down the procedure for blocking. Human Rights Watch, along with several rights groups and Internet experts, has reported how these provisions lack adequate safeguards and the process is shrouded in secrecy.

The Supreme Court ruling has come at a time when freedom of expression in India is under increasing pressure from the "heckler's veto": threats and litigation by those "offended" have forced authors and publishers to withdraw their work. The Supreme Court has now strengthened the standards of free expression in the world's largest democracy. The government should respond by increasing protections for speech, not caving to vigilantes.

What other IFEX members are saying
  • CPJ welcomes Indian Supreme Court decision protecting online speech

    "The Indian Supreme Court's decision striking down Section 66A is a profound victory for press freedom online," said CPJ Internet Advocacy Coordinator Geoffrey King. "In holding this provision unconstitutional, the court recognized the Internet's importance as a space for the free flow of news and critical commentary, as well as the necessity of ensuring that restrictions on speech are narrowly drawn."

  • Indian victory bears out the need for the Manila Principles

    This landmark Supreme Court of India decision vindicates the approach we took in the Manila Principles, holding that there are no circumstances in which private parties should be able to force content offline simply by sending a notice to an Internet intermediary; because this opens the floodgates for the infringement of users' freedom of expression and other human rights online, as well as inhibiting intermediaries from offering innovative services that build on user-generated content.

  • Indian Supreme Court guarantees free speech online

    “The IFJ welcomes the judgment of the Supreme Court of India upholding the rights of free speech. It’s a landmark decision to ensure Freedom of Expression on the Internet.”

  • Landmark judgment for online speech in India is step toward greater press freedom

    In an historic decision, India's Supreme Court on Tuesday struck down part of a law used to silence criticism and free expression. While this marks a pivotal victory that has been welcomed in many quarters, many challenges remain for press freedom in the country.

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