A requiem for section 66A

As netizens cheer the upholding of their constitutional rights, Abhishek Malhotra analyzes a ruling that prompted it

“Knock! Knock!”

“Who’s there?”

“The police. We are here to arrest you for violation of section 66A of the Information Technology Act.”

“Why?”

“You posted a comment on your Facebook page regarding ____. It was offensive and caused annoyance and inconvenience.”

The collective consciousness of the people of India was shocked by instances of such arrests. Freedom of speech and expression is a revered fundamental right guaranteed by the state under article 19(1)(a) of the Constitution of India, which states that all citizens shall have the right to freedom of speech and expression.

The only limitation on this right is provided in article 19(2), which states: “Nothing … shall affect the operation of any existing law, or prevent the state from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.”

Thus, the question before the Supreme Court in the constitutional challenge to section 66A of the Information Technology Act, 2000, was did it qualify as a reasonable restriction on the freedom of speech and expression.

Abhishek Malhotra is the managing partner of TMT Law Practice.