Bench of Supreme Court, while observing public’s right to know is directly affected by Section 66A and the Section clearly affects the right to freedom of speech and expression enshrined under the Constitution of India, held that Section 66A was unconstitutional because it failed two major tests – the clear and present danger test and the tendency to create public disorder test.
The court also found the language used in the Section vague and nebulous saying it doesn’t properly define words like ‘offensive’ or even ‘persistent’. This section had been widely misused by police in various states to arrest innocent persons for posting critical comments about social and political issues and political leaders on social networking sites.
Court further, observed that, it can’t go by government assurances that the Section won’t be misused as any assurance would not bind on successive governments. Section 66 A it said, would have to be judged on its own merits. However, allowed the government to block websites if their content had the potential to create communal disturbance, social disorder or affect India’s relationship with other countries.
The court said such a law hit at the root of liberty and freedom of expression, the two cardinal pillars of democracy. The court said the section has to be erased from the law books as it has gone much beyond the reasonable restrictions put by the Constitution on freedom of speech. The Supreme Court said section 66A was vaguely worded and allowed its misuse by police.
The SC delivered its judgment on a bunch of petitions filed in the light of misuse of the penal provision by government authorities against persons who allegedly uploaded offensive posts on social networking sites against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death.