SECTION 66A OF THE INFORMATION TECHNOLOGY ACT
The Information Technology (IT) Act, 2000 gives legal recognition to transactions carried out through electronic communication, also known as e-commerce. The Act also penalizes various forms of cyber crime. The Act was amended in 2009 to insert a new Section, Section 66A which was said to address cases of cyber crime with the advent of technology and the internet. Section 66(A) of the Act basically criminalises sending of offensive messages through computer or other communication devices. Under this provision, any person who by means of a computer or communication device sends any information that is grossly offensive, false and meant for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will or is meant to deceive or mislead the recipient about the origin of such messages, etc, shall be punishable with imprisonment up to three years and with fine.
In the year 2015, The Supreme Court in the case titled Shreya Singhal v. Union of India, AIR 2015 SC 1523 , struck down Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India. The Court further held that the Section was not saved by virtue of being a ‘reasonable restriction’ on the freedom of speech under Article 19(2). The weakness of Section 66A lay in the fact that it had created an offence on the basis of undefined actions: such as causing “inconvenience, danger, obstruction and insult”, which do not fall among the exceptions granted under Article 19 of the Constitution, which guarantees the freedom of speech. At Knowledgentia Consultants which is the best law firm in India, we offer legal advisory to all our clients belonging to different strata of society on cybercrime and privacy issues.
SHREYA SINGHAL V. UNION OF INDIA, (2015) 5 SCC 1
In this case, the first petition was filed in Court in November 2012, following thane police’s arrest of two girls in Maharashtra based on a Facebook post. The girls had commented on Mumbai’s closure for shiv sena’s chief Balasaheb Thackeray’s funeral. The arrests sparked anger from all quarters due to the way the cyber law was applied. Shreya Singhal, a 21-year-old law student at the time, filed the public interest litigation for protecting the freedom of speech and expression. Other interested parties who had borne the brunt of the misuse of this Section later joined her in her petition.
A bench of justices J. Chelameswar and R.F. Nariman, on march 24, 2015, held that Section 66A was unconstitutional for “violating article 19(1)(a) of the constitution of India and not being saved by article 19(2) of the constitution of India.” The judgment was hailed as a watershed moment in the legal fight against state infringement on free speech and expression.
SUPREME COURT ON SECTION 66A
The Supreme Court has also explored the scope of Section 66A under several broad headings, which are briefly explained below.
- Freedom of speech and expression
Section 66A has been criticized on the ground that it spells a very wide net, encompassing “all information” distributed via the internet. As a result, the definition of “information” provided in the IT act is broad and secondly, the definition does not pertain to the content of information, but rather to the channel through which such information is transmitted. Furthermore, because of its broad scope, the information, whether annoying, inconvenient, or downright offensive, does not differentiate between discussion, advocacy, or provocation.
- Public order
The Supreme Court went on to rule that there is no direct link between Section 66A and public order but a cursory reading of Section 66A reveals that it aims to penalize anyone who uses the internet to distribute any information that may be to one individual or several individuals, blurring the line between mass distribution and distribution to one person.
A layman should be able to distinguish between what is forbidden and what is permissible behaviour. Also, those who oversee the law must be aware of the nature of the crime so that unjust application of the law does not occur. The main issue is that there was no clear definition provided in the IT act of what was “offensive.” Because the word had such a broad meaning, it could be interpreted in a variety of ways. It is stressed that laws should provide a reasonable opportunity for a person of ordinary intelligence to know what is banned so that the innocent do not become stuck as a result of a lack of fair warning.
- Too wide for application
It is a well-established concept that the law should not be used in a way that restricts “freedom of speech and expression.” Such is Section 66A’s reach, and if it passes the constitutionality test, it will almost freeze free speech. Section 66A also conflicts with the provisions of the Indian Penal Code, 1860
SUPREME COURT’S LATEST DIRECTIVE
Despite it being struck down in the year 2015, this provisions was misused and people continued to be prosecuted under this Section till date. Supreme Court has this year finally gave following guidelines while hearing a PIL this year :-
- It needs no reiteration that Section 66A of IT Act2000 is violative of the Constitution. In cases where citizens are facing criminal charges for the said Section, the reference and reliance on the said Section shall stand deleted.
- Police force, Home Secretary of States, the compliance officers of Union Territories as well as the entire police force shall not complaints in violation of Section 66A.
- In cases where other offences are listed in the complaint along with the said Section, only the offence of Section 66A shall stand quashed.
- Whenever any publication, whether government, semi-government or private publishes any information regarding the said Section, the readers should be informed that Section 66A is pronounced as violative of the Constitution by the order of the Supreme Court.
Section 66A is frequently misunderstood and misapplied. In any democratic nation, freedom of speech and expression has an important role in the legal system. The Supreme Court has rightly struck down Section 66A as unconstitutional. The Supreme Court’s decision in Shreya Singhal V. Union of India was a landmark judgment against the state’s invasion of freedom of speech and expression. It is shocking to see that even after the top Court struck down Section 66A, draconian law is still being used by law enforcement agencies. The disparity between the Court’s decision and the growing number of Section 66A cases may be clarified by a political environment in which sensible discussion, disagreement, and free speech are viewed as acts of bad faith, and current rules are used as weapons to detain reporters and residents for a tweet, a slogan, or a facebook post. The note from the centre to the states is appreciated, but the continuous review is the only way to make sure that the law is followed in letter and spirit. At Knowledgentia, which is the best corporate international law firm in India, we have a team of experts to help identify cybercrime and privacy issues that can impact us in our daily life as well as guide us with ways how we can protect ourselves and others in our environment from being victims of cybercrime .You may visit our website https://knowledgentia.com/ or email us at email@example.com for any related queries.