A cartoonist, a university professor, two young women, a businessman, a writer and a couple of Air India employees — they were victims, all, of Section 66A of the Information Technology (Amendment) Act, 2008, which the Supreme Court has held to be unconstitutional. In an eloquent and far-reaching judgment, the court emphasised that the “liberty of thought and expression” is a “cardinal value” of “paramount significance” in any democracy. It affirmed the role of unpopular opinions in a “culture of open dialogue” and in the “marketplace of ideas”, pointing out that “what may be offensive to one may not be offensive to another”. It criticised Section 66A as vague and “nebulous in meaning” and acknowledged the ways in which the provision has been misused and wielded as a weapon against those who took to social media to express political dissent. It dismissed the Central government’s assurance that it would be less whimsical in the way in which it employed the section, noting that “governments may come and governments may go, but Section 66A goes on forever.”
Once again, India’s apex court has reaffirmed its role as the guardian of individual liberty against arbitrary and whimsical state action, and as protector particularly of that most fundamental of rights — of free speech and expression. It was the Supreme Court that read the freedom of the press into Article 19(1) of the Constitution. Now, by pointing out that Section 66A fails the “reasonableness” test for restrictions permitted under Article 19(2) of the Constitution, by making crucial distinctions — such as between discussion, advocacy and incitement — and by requiring that any restriction imposed by the state be defined precisely to ensure that ambiguity does not chill free speech, the court upholds a fine tradition.
