Current Affairs

Section 66A is unconstitutional. So, what?

In a “landmark” judgment on the Right to Freedom of Speech on the Internet, the Supreme Court on Tuesday (24/3/2015) quashed Section 66A of the Information Technology Act that empowers the police to make arrests over contentious social media posts. It ruled the law violate people’s fundamental right to speech and expression. The Apex court also ruled on a series of cases challenging the IT Act, including Section 79 and its rules (forcing intermediaries to take down online content) and Section 69 (blocking of online content).

The bench, consisting of Justices Chelameswar and Rohinton Fali Nariman struck down Section 66A of the IT Act. Reading the judgment, Justice Nariman said: “That there are three aspects of freedom of expression: discussion, advocacy and incitement. Only when discussion and advocacy reach the level of incitement, is Article 19 (2) (of the Constitution of India), which puts reasonable restrictions on freedom of speech, applicable. Section 66A makes no distinction on whether the communication has any impact on public order. The clear and present danger test and the public disorder test ought to be a prerequisite. What may be offensive to one may not be to another, what may be annoying to one may not be to another. That is what renders 66A unconstitutional and vague. Governments come and governments go, the law persists. And the law must be judged on its own merit. 66A is invalid and it cannot be saved even if the government says it won’t abuse the law.” The Court also struck down section 118 (D) of the Kerala Police Act on the same grounds.

However, the court upheld Section 69 in its entirety. Section 69 allows the government to block websites. Importantly, while Section 79 and its rules were upheld, the court said that it needs to be read down, and a court order or a government order needs to be taken. Section 79 and the IT rules will also be subject to Article 19 (2) which puts reasonable restrictions on free speech, and they cannot go beyond the limits put by 19 (2).

And, then, all of a sudden, slacktivists around me commenced displaying their “dutch courage” in their best possible manner on facebook, twitter, Instagram, WhatsApp, etc. I was wondering where were they till date, than unrealizing infringement of their own natural rights which are hitherto expropriated by their government and it’s leviathan called “Constitution of India”. This article isn’t cynical, but critical, and endeavors to provoke heterodoxical thinking.  Anyway, I am finding a “great paradox” in what Justice Fali Nariman said. On one side, he is defending “subjective theory of values”. On the other hand, he seems to be insipid about laws being static. When law is to be judged on its own merit, then what makes Justice Fali Nariman to suppress people having the volitional discretionary to enunciate their lives with private laws than public laws? With due respect, I think Justice Fali Nariman should read “The Law” by Frederic Bastiat before passing flowery comments to impress the fooled ones of this nation. It is uneasy to convince the fooled ones here that they have been fooled, though. However, according to me, the existence of such inhumane laws are detrimental to self-ownership because they have been elitistically designed this way to structurally protect the state against free thinking. I am unimpressed with this verdict, albeit it deserves appreciation, but the Indian government still continues to enjoy the privileges of monopoly on legislation and other “democratic” activities. Not this, then that. They will continue to legislate laws with different titles and word salads, to virtually control the lives of all individuals; in mistreat-ing right to property as “axiom”. Google: Centralised Monitoring System, if you disbelieve me.

In the end, this verdict has only changed the color of the branch but the organic attitude of the roots remain the same. Google: The Myth of the rule of law, by John Hasnas. I reckon that useless arguments or “ad hominem” is the digital norm on social media, when it comes to discourses. I have experienced it more than you. Such arguments are probably decoded in an insensible way and this will certainly catalyse the receiver to lobby with the government in creating such set of laws in the near future to guard the imbecilic philosophy: “my sentiments are hurt, so you control your emotions, or else go to hell or jail”. This verdict won’t uncensor AIB knockout, Fifty shades of grey, etc., by the way. I feel unrelieved. How about you?

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About the author

Jaimine Bezboznik

Jaimine Bezboznik

Very 'critical' box writer. A blasphemous writer awaiting sedition charges for making readers to think critically and anarchistically.

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  • Moreover,

    A year ago, India had one million Facebook users. In the first six months of 2014, Facebook restricted access to nearly 5,000 pieces of information, the highest anywhere in the world, in response to requests from the government of India. The grounds were usually hate content or criticism of a religion.

    The figure went up to 5,832 pieces of content on Facebook in the last six months of 2014.


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