This however, is not a stand-alone incidence. Many people have been arrested under the provision of IT Act for expressing their opinion, which came across as offensive to the government. Though Information Technology Act was first enacted in 2000, the constitutionality of S.66A remained unchallenged prior to the arrest of the two girls mentioned above. The entire nation was outraged by this incident which also resulted in the Supreme Court admitting the Writ Petition[7] filed by a law student challenging the constitutionality of s.66A of IT Act. This is a pertinent matter awaiting the decision of the Apex Court, which will determine the fate of internet freedom in our country. A lawyer and a scholar on Internet Censorship in India, Lawrence Liang in an interview on the legal role of S. 66A argued that there are a number of vague terms such as ‘inconvenience’. ‘annoyance’ and ‘grossly offensive’ within the provision of Section 66A. These terms or phrases are vulnerable to excessive interpretation when made by an extremely sensitive or powerful person such as police.
Therefore, according to Liang, it is not the interpretation, but the existence of some of the phrases mentioned above itself is problematic. In the absence of any step made by the government to deal with these problematic phrases, Liang makes an alternative suggestion that such terms must be read down by the judiciary to narrowly construe their meanings to the extent possible such as that of S. 153A or S.295A of Indian Penal Code.[8] The Internet has become a vital instrument of freedom of speech and expression over the years. It not only provides a source of information on mind-boggling subjects, it has also become a platform for the voiceless to raise their voice against oppression and injustice. Blogging websites and other social networking sites allow every person, even from semi-urban areas to make their presence felt in the world of connection. It is surprising to see that though laws have been enacted almost simultaneously with the turn of internet revolution in our country, these laws are abused by authorities without judicial intervention. Arrests of potential dissents attracted public outrage and trial. But the constitutionality of the Act had not been challenged until recently.
In fact, though the internet revolution in India has witnessed a few summers, there has not been much litigation on the use of internet as a mode of assertion of right to freedom of speech and expression. However, the internet has been acknowledged as a potential source of information in a few cases. Earlier in 2007, a petition was filed by a lawyer[9] contending that the freedom of speech and expression enjoyed by the newspaper industry is not keeping balance with the protection of children from harmful and disturbing materials. Article 19(1)(a) guarantees freedom of speech and expression of individual citizens as well as the intuitions of press and media. It acknowledges that the press is free to express its ideas, but at the same time, individual also has right to their own space and right not to be exposed against their will to other's expressions of ideas and actions.
This petition, the court noted, is nuanced in that it seeks regulation at the receiving end and not at source.[10] The petition is confined to ensure that minors have limited access to sexually explicit material through the internet. The Court opined that these kind of material are available for free in internet, televisions, movies etc. the pertinent question, according to the bench was, whether our society is ready and mature enough to accept these freely available materials or they behave like passive receivers without any control on the same. Moral values, according to the Court cannot be diluted to cultural assimilation and social change. The yardstick of the threshold of morality is, therefore, to be judged from a strong and reasonable mind who is firm and courageous man (who, in other words, is an average man).[11] Moral standard varies in different communities. One significant example in this field is the determination of obscenity of the novel called Lady Chatterly’s Lover. Whereas the Indian Supreme Court declared the novel to be obscene, the same novel passed the test in the jury in United Kingdom, thereby, blurring the singular standard of obscenity. However, in Ajay Goswami’s case, the Supreme Court noted, that such obscenity tests have become outdated in the internet age, which has broken down this traditional barrier with the accessibility of certain materials across the globe.[12] The Court, however, makes a pleasant remark by holding that fertile imagination of anybody especially of minors should not be a matter that should be agitated in the court of law.[13]