The Supreme Court struck down Section 66A of the IT Act, which made “annoying” and “grossly offensive” online messages a crime. Here is what it decided and why.
On 24 March 2015, Justice J. Chelameswar and Justice R.F. Nariman delivered their decision in Shreya Singhal v. Union of India, with Justice Nariman authoring the judgment. The case examined Section 66A of the Information Technology Act, 2000, while also considering the validity of Section 69A, Section 79, and a provision of the Kerala Police Act.
Section 66A did not form part of the original Act; it was introduced by the 2009 amendment and became effective on 27 October 2009. The provision imposed penalties on any person who used a computer resource or communication device to send information that was “grossly offensive” or menacing. It also applied to the persistent transmission of false information intended to cause annoyance, inconvenience, insult, enmity, hatred, or ill will, as well as emails sent to annoy, inconvenience, or deceive the recipient. A violation could result in imprisonment for up to three years and a fine.
Section 66A. Punishment for sending offensive messages through communication service, etc.–Any
person who sends, by means of a computer resource or a communication device,–
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will,
persistently by making use of such computer resource or a communication device;
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient about the origin of such
messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation.–For the purposes of this section, terms ―electronic mail‖ and ―electronic mail message‖
means a message or information created or transmitted or received on a computer, computer system,
computer resource or communication device including attachments in text, image, audio, video and any
other electronic record, which may be transmitted with the message. (Source: Information Technology Act, 2000)
Through writ petitions filed under Article 32, the petitioners submitted a note identifying cases in which individuals had been booked under the provision. They argued that Section 66A infringed the freedom of speech protected by Article 19(1)(a), was not protected by Article 19(2), lacked clarity, and created a chilling effect on expression. The government contended that judicial intervention was warranted only where there was a clear constitutional violation, that the possibility of misuse could not justify invalidating legislation, and that the internet required a less stringent standard.
The question before the Court
Is Section 66A valid under Article 19(1)(a) and Article 19(2)? The Court also had to decide the validity of Section 69A, Section 79, and Section 118(d) of the Kerala Police Act.
What the Court held on Section 66A
- Discussion, advocacy, and incitement. The Court said the right to free speech has three parts: discussion, advocacy, and incitement. Even unpopular discussion or advocacy is at the heart of Article 19(1)(a). Article 19(2) comes into play only when speech reaches the level of incitement.
- The grounds in Article 19(2) are a closed list. The State argued that Section 66A could be supported under public order, defamation, incitement to an offence, and decency or morality. The Court said speech cannot be restricted in the general public interest, only on the grounds Article 19(2) lists, and the restriction must be closely connected to one of them.
- Information of every kind was caught. The Act defines “information” by the medium, not the content. So the section covered scientific, literary, and artistic material and news about current events, and made no difference between annoying advocacy and incitement. This also affected the public’s right to know.
- No link to public order. The Court asked whether an act disturbs the life of the community or only affects an individual. Section 66A treated a message to one person like a message to millions and did not require any tendency to disturb public order. It also failed the “clear and present danger” and “tendency” tests.
- Not defamation, incitement, or obscenity. Defamation needs injury to reputation, and the section did not require it. Causing annoyance is not an offense in itself under the Penal Code, so it is not incitement to an offense. The word “obscene” does not even appear in the section.
- Vague. None of the key terms were defined, unlike Section 66, where “dishonestly” and “fraudulently” are explained. What offends one person may not offend another, and even “persistently” draws no clear line, since the Court asked whether three messages or eight would count. Annoyance is defined narrowly in Sections 294 and 510 of the Penal Code, but not here.
- Judges themselves disagreed. In the two English cases the government cited, courts reached opposite conclusions on the same facts about what is “grossly offensive” or “menacing.” The Court said this showed there is no manageable standard for such words.
- Overbroad, with a chilling effect. The section was cast so widely that almost any dissenting opinion could fall within it. The Court gave examples such as views on the emancipation of women or the abolition of the caste system. It said the chilling effect on free speech “would be total”, and struck the section down for overbreadth.
- Promises of fair use did not save it. The government assured the Court the section would be used reasonably. The Court rejected this and said that “Governments may come and Governments may go, but Section 66A goes on forever.”
- The Court could not rewrite the section. The government asked the Court to read the grounds of Article 19(2) into the section. The Court refused, calling this a wholesale substitution, not a reading down.
- No severability. Because the section could be applied beyond Article 19(2), no part of it could be saved, and the whole provision was struck down.
- No relaxed test for the internet. The Court refused to relax its scrutiny of speech on the internet. It also rejected the Article 14 challenge, saying the internet gives anyone a cheap, far-reaching platform, so Parliament can create separate offences for it.
The other provisions
- Section 69A (blocking) and the 2009 Rules: upheld. The Court said the section is narrowly drawn: blocking needs the Central Government’s satisfaction, only on grounds linked to Article 19(2), and by an order with written reasons. The Rules also give a hearing to the originator and the intermediary, where identified, and provide for review.
- Section 79 and the 2011 Intermediary Guidelines: upheld, with Section 79(3)(b) and Rule 3(4) read down. A platform must act only on actual knowledge of a court order or a government notification under the Court’s summary, and the order must relate to the subjects in Article 19(2). For Rule 3(4), the knowledge must come through a court order.
- Section 118(d), Kerala Police Act: struck down because causing annoyance in an indecent manner suffers from the same vagueness and overbreadth.
The outcome
The Court struck down Section 66A in its entirety, upheld Section 69A and the 2009 Blocking Rules, upheld Section 79 and the 2011 Guidelines as read down, and struck down Section 118(d) of the Kerala Police Act.
Beyond this case, a few points are worth noting:
- Not a free-for-all. The Court did not say online speech can never be restricted. Speech can be restricted on the grounds in Article 19(2), and incitement can still be punished.
- Blocking survives. The government’s power to block content under Section 69A remains, with its safeguards.
- Procedure left open. Having struck down the section on substantive grounds, the Court did not decide the petitioners’ argument on procedural unreasonableness.
- Intermediaries. Platforms are not expected to judge every complaint themselves. They must act on a court order or government notification.
So, can the law punish an online message for being annoying or offensive? The Supreme Court said no, not by a law this vague and broad. Speech can be restricted only within the grounds the Constitution allows, and a law cannot cast a net wide enough to catch protected speech and then rely on officials to use it fairly.
This post is commentary on a published judgment and is not legal advice.
Case Details
- Citation: AIR 2015 SC 1523; (2015) 5 SCC 1
- Date of Judgement: March 24, 2015
- Case Number: Writ Petition (Criminal) No. 167 of 2012, with connected writ petitions
Court: Supreme Court
Bench
- Judges: Justice J. Chelameswar and Justice R.F. Nariman (judgment by Justice Nariman)
Parties
- Petitioner: Shreya Singhal
- Respondent: Union of India