Section 66A of IT Act Quashed and Freedom of Speech Recaptured

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India, in view of increasing trend of globalization, has thought that it is necessary to adopt the Model Law on Electronic Commerce that was resolved by the General Assembly of the United Nations which was originally adopted by United Nations Commission on International Law. India, in order to provide electronic data communication and financial transactions, and to enable the public to use the alternatives of paper based communication and to enable the public /business to have online electronic filing of documents with government agencies, and thereby to amend the substantial laws and such as Indian Penal Code, Indian Evidence Act, the Banker’s Books Evidence Act and Reserve Bank of India, adopted Model Law on Electronic Commerce and enacted The Information Technology Act, 2000 (No. 21 OF 2000)

The said Act not only provided facilitation for electronic transactions and communications, it also laid down to protect the innocent users from the hackers of personal computer information.  Also, the Act directs the concerned authorities to monitor the cites and restrain the publishing of obscene or provocative, or  prurient appeals by any  persons, and sought to penalize such persons by the way of imprisonment or fine or both.

One fact about Information Technology Act is that no body not aware much about the Act or its provisions until the recent events of arrest of two college-going girl students by the police.  In the recent times the Act becomes more popular all over the country, and came in to the light of the people’s perspective and became a debatable issue.  The only reason behind this issue is the Section 66 A, which was inserted by ITAA 2008.  The original Act Information Technology Act, 2000 was renamed as Information Technology (Amendment) Act 2008 by inserting various provisions in accordance with the advancements in the Information Technology over the period.  Legislators thought that few more cyber crimes to be brought under the scope of the Act due to increased number and forms of cyber crimes.  Thus, the Act introduced eight cyber crimes in the Amendment Act which attract penal actions under various sections such as; to send offensive messages through a computer or mobile phone (Section 66A), receiving stolen computer resource or communication device (Section 66B), to punishment for identity theft (Section 66C), Punishment for cheating by personation using computer resource (Section 66D), Punishment for violating privacy or video voyeurism (Section 66E), Cyber Terrorism (Section 66F), Publishing or transmitting material in electronic form containing sexually explicit act (Section 67A), and Child pornography (Section 67B)

Among the penal Sections of IT Act, Section 66A is one such penal Section, wherein it is stated that any person who sends through computer or any communicative device of any information, whether offensive or menacing character,  or sends any information or email that appear to be false, to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, to deceive or mislead the addressee or recipient of such messages,  shall be punished with imprisonment for a maximum of two to three years and with fine.

People from children, youngsters to most of the social Activists, are much active and connected on the Social Media.  Social media cites are used much for entertainment and however partly used provide more awareness on certain social issues and bringing notice of many unknown issues and truth, the actual scenario of the India and its society to public and even to other nations.  However, we need to admit the fact that, these networks such as Facebook, twitters and blogs are not used for the purpose of good cause, but mostly are used to pass the time as well as to deceive the innocents with false representations.

On the contrary, we have also seen that many cases were filed against the innocent citizens for expressing their views on the political scenarios on twitters, facebooks and blogs, for which the police officers invoked Sections 153, 153A and 504 of IPC with Section 66A of the IT Act as a bailable offence.  Arresting the innocent for raising voices on various social issues purely curbing the right to free speech, which is an absolution right of expression in a democratic country where every citizen is guaranteed the freedom of speech under Article 19 (1) (a) of The Constitution of India.

The intention of the legislators behind providing this fundamental right is to be considered or interpreted in the broader sense, and also to be noted that such right can be limited only by the exceptions given thereunder.  According to legislators, this right plays a very important role to criticize the ruling party’s errors.  However, constitution imposed certain reasonable restrictions on usage of free speech in certain issues as specified in clause 2 to 6 which is a duty to follow such restrictions by the citizens.  The issues in which freedom of speech of the citizen restricted are integrity and sovereignty of nation, national security issues, public order, decency, morality , contempt of court, incitement to offence, and friendly relationships with foreign states.

The above stated arrests of many citizens not made their expression on any of the above cited restricted issues, however, police invoked other sections of IPC along with IT section 66A.  The other Sections of IPC Sections 153 and 153A deals with punishment for the cases registered for incitement to offences such as riots or for provoking communal tension and enmity between the communities, providing 6 months punishment  Section 505 deals with punishment for causing rumors in order to create public disorder, for which 3 years imprisonment be ordered.

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As I stated above, in 2012 two Palghar girls, who were college students, were arrested by police for questioning a bandh over a politician’s death (bandh was called by Shiv Sena for Late Sri Bal Thackeray’s funeral) when by the way of posting on their facebook accounts. This incident has raised a huge uproar over the arrest of these girls and had created a sensation on this issue across the world.  Later Law Minister intervened the matter and sent a circular to all police stations that no arrest should be made in the absence of any written order of SP.  This made Ms. Shreya Singhal, a law student who was studying in UK law school to file PIL, challenging Section 66A of the IT Act.

The Hon’ble Supreme Court Bench Justices Mr. J Chelameswar and  Mr. Rohinton Fali Nariman on 24/3/2015 pronounced the judgment striking down Section 66A in the IT Act based on following reasons which are given in brief.:

  1. Section 66 A has no proximate relationship to public order
  2. Expressions in Section 66A are undefined
  3. Section 66A created an offence which is vague and overbroad, therefore unconstitutional.
  4. Section 66A cast so widely that virtually any opinion on any subject would be covered by it.

Hon’ble Justice Mr. Nariman stated that “as citizens of a democratic country, we must realize the importance of giving space to the right to dissent and air views even if they were unpopular and this requires free of opinions.  While an informed citizenry is a precondition for meaningful governance.. open dialogue  is of great of importance”, Also stated that “Section 66A offensive to free speech guaranteed under Article 19(1)(a) regulated under Article 19(2).  The court accepted that  public’s right to know is directly affected by Section 66A. Also, Bench stated that “Section 66A is intended to punish anyone who uses internet to disseminate any information falling within the sub-clauses of Section 66A.  The section makes no distinction between mass dissemination and dissemination to one person.”  By this verdict, we have retained the right to free speech, the fundamental right guaranteed by the Constitution, which can be limited only by strict exceptions laid down in Article 19(2) to (6).

By striking down the Section 66A, it does not mean that government has no mechanism to regulate the social media publications.  The government to regulate online contents may invoke other provisions of IT Act such as  Section 69A that provided a three-tier confidential mechanism for blocking.  If any person aggrieved by the social content,  can approach the Nodal Officer in the IT department. Committee of the IT Dept would review the posting and ask to block the posting who posted it. The orders of the IT dept may be challenged in the High Court.

Thought the Section 66A was repealed,  social media users should be cautioned due to the fact that abusive, absurd, provocative messages through social media cites may still be offensive under various offences and attract the penal provisions of Indian Penal Code such as Section 500 (defamation), Section 505 (public mischief causing fear to public by sending or making any rumours, reports or statements ), section 506 (criminal intimidation causing threats to injure person, imputing unchastity to a woman), Section 509 (insulting modesty of woman or intruding privacy),  Section 507 (criminal intimidation by anonymous communication), Section 124A (sedition) and Section 295A (Blaspemy -statements that insult religious beliefs).

The Supreme Court in its judgment cleared the issue that there is intelligible differentia between the speech on internet and other mediums of communication and held that the Government was justified in having separate laws to deal with offensive speech on Internet.  Bench considered that on internet every one can air their views and internet did not exist and operate in an institutional form, and therefore there is need for some mechanism to put checks and balances on this medium.

The verdict of the Supreme Court welcomed cheerfully by the social media users and appreciated the verdict by many global internet giants like Google as they no need to remove the content after complaints are filed by any party hereafter the pronouncement of this landmark judgment.   Also, they are relieved very much because they have to do the content removal only upon any government or court order. Overall, it’s a decision to be welcomed warmly.  The verdict at last distinguished that internet is distinct from other media and required suitable laws for its regulation.

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By Anitha Gutti