In the past decade, the information technology sector has achieved amazing growth in India. Criminals have also evolved to use the Internet as a potential means of crime. The Information Technology Law is one of the most important laws passed by the Legislative Council and is used to control crimes related to Internet use.The SC had noted that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech, under article 19(1) (a) of the Constitution, and upsets the balance between such right and the reasonable restrictions that may be imposed on such right and the definition of offences under the provision was open-ended and undefined.
The court also said that the provision, introduced in 2009 to the original Act of 2000, used expressions “completely open-ended and undefined” and every expression used was “nebulous” in meaning. “What may be offensive to one may not be offensive to another.
What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another. Even the expression ‘persistently’ is completely imprecise.
Background of Section 66A
Section 66A dealt with information related crimes in which sending information, by means of a computer resource or a communication device, which is inter alia offensive, derogatory and menacing is made a punishable offence.
- In Shreya Singhal v. Union of India judgement, Justices Rohinton F. Nariman and J. Chelameswar had observed that 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.
- The court also observed that the challenge was to identify where to draw the line. Traditionally, it has been drawn at incitement while terms like obstruction and insult remain subjective.
- In addition, the court had noted that Section 66A did not have procedural safeguards like other sections of the law with similar aims, such as :
- The need to obtain the concurrence of the Centre before action can be taken.
- Local authorities could proceed autonomously, literally on the whim of their political masters.
- The judgment had found that Section 66A was contrary to both Articles 19 (free speech) and 21 (right to life) of the Constitution. The entire provision was struck down by the court.
- After that government had appointed an expert committee (T.K. Viswanathan committee) which proposed a legislation to meet the challenge of hate speech online.
The Act and its provisions
Section 66A5 deals with offensive messages sent through a computer resource or communication device. It provides that when any person sends information that is grossly offensive, menacing, false for the purposes of causing annoyance, inconvenience, enmity, hatred, ill-will etc., he shall be punished with imprisonment and fine.
- In case where a message is offensive, or menacing, no further object needs to be established for the act is culpable. In other words, the mere fact that the words are construed by the enforcement as being offensive or menacing is enough to maintain an action.
- Where the information is false, in such cases a further object or purpose needs to be made out in the sense that the perpetrator sent the information to spread ill-will, hatred, enmity, etc. Section 66A was introduced to increase the scope of IT Act which was somewhat restricted to offences related to E-commerce.
- According to the standing committee report6 on the amendment to the IT Act of 2000, the intent of the legislature was to bring in a law which is people friendly and can be understood by the common man and having least dependence on other laws.
- The intent of the legislature cannot be challenged. The major reason why the Section 66A came out so vague was the lack of discussion on the floor of Parliament.
- Since the terrorist attack of November 26, 2008, an immediate need for substantial change in cyber law was felt. Moreover the disturbance caused in Parliament further reduced the chances of debating the amendment bill.
- No wonder an amendment with a lot of loopholes was passed. The section was one of its kind to deal with hate speech, defamation, criminal intimidation, etc. which is done via internet.
- Though similar sections are available in the IPC, a new set of law was necessary for a new modus operandi of committing crimes. This section enabled police officers or cyber cell to deal with online content swiftly which cannot be done by the IPC.
Set backs of the Act and Supreme Court’s decision
Section 66A was struck down by the Supreme Court in the judgment of Shreya Singhal v. Union of India Writ Petition (criminal) No. 167 of 20127.
The Public Interest Litigation (PIL) was filed by Shreya Singhal for protecting the freedom of speech and expression. Other stakeholders who suffered due to misuse of this section later on joined her in her petition and finally the court declared the section unconstitutional on the grounds of vagueness
The challenge for constitutionality was with respect to the Articles 14, 19(1)(a), 19(2) and 21 of the Constitution of India. However, the Court repelled the challenge for Article 14 and 21 and held the section unconstitutional for violating Article 19(1)(a) and 19(2). The challenge for Article 14 and 21 was repelled after the argument by learned Additional Solicitor General that relaxed standard of reasonable restriction apply for internet as a medium of speech was accepted by the Court8. The government was able to convince the court how huge and far reaching medium internet is as compared to other traditional mediums like newspaper and electronic medium like television. Thus,the court accepted the argument that reasonable restriction should and must apply on the internet, thus, repelling9 the unconstitutionality challenge with respect to Article 14 and 21 of the Indian Constitution. So, the constitutionality of Section 66A was scrutinized only with regard to Article 19(1)(a) and 19(2).
Article 19(1)(a) of the Indian constitution gives all Indian citizens right to freedom of speech and expression. The Court stated three fundamental concepts which are important to understand the ‘freedom of speech and expression’. The first is discussion, the second is advocacy, and the third is incitement. Article 19(1)(a) encourages discussion or advocacy of topics howsoever unpopular or against the government. It is only when such discussion or advocacy reaches an incitement that Article 19 (2) comes into the picture. The court stated – it cannot be overemphasized that when it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.
Article 19(2) says that ‘Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.’
Therefore for a State to curb the freedom of speech and expression the offence must fall under any of the eight subject matters mentioned in Article 19(2). A state cannot curtail one freedom to promote the general public interest or even for securing the better enjoyment of another freedom.
While arguing against the constitutional validity of the section, the petitioner challenged that the offence created by the said section has no proximate relation with any of the eight subject matters contained in Article 19 (2).
Defending this challenge the State claimed that in fact the section can be supported under the public order, defamation, incitement to an offence and decency or morality. Thus, while judging the constitutionality, the Court focused on the four of the eight heads mentioned by the State
Section 66A clearly fails the test of tendency to create public order and, the clear and present danger test. These two tests are important in order to determine if a law is really used to control public disorder.
The Public Order Test
Checking the tendency to create public disorder, it is clear that the section does not require that such message should have a clear tendency to disrupt public order. There is no differentiation made between the message is sent to an individual or a group of individuals. Also, no relation can be established between the message sent and further action taken by the individuals resulting in disruption of public order. An offence under this section can be implied even if a message is annoying to an individual without creating public disorder.
Defamation is an act of making an imputation which is false and which harms the reputation of an individual person, group, community, religion, etc.
According to the Indian Penal Code, defamation can be done by using words either spoken or written or by signs or by visible representations.
The ingredient in the act of defamation is injury to reputation. However the Court observed -something may be grossly offensive and may annoy or be inconvenient for somebody without at all affecting his reputation18. Either of these, this section does not target defamatory statements only.
It may incriminate other statements too, which are annoying or grossly offensive, but not have the ingredients for defamation.
Decency or Morality
Something which is categorized as grossly offensive or annoying under the Section may not be obscene at all. Thus, it cannot be termed as indecent. The court observed that the word ‘obscene’ is conspicuous by its absence in Section 66A19. Therefore, it cannot be accepted that this section includes the decency or morality head. Incitement to an offence Just because something is grossly offensive, annoying, or having a menacing character doesn’t mean that it has ingredients to incite an offence at all. It may fall in the category of ‘discussion’ or ‘advocacy’ or ‘point of view’.
The Supreme Court observed “Section 66A has nothing to do with ‘incitement to an offence’. As Section 66A severely curtails information that may be sent on the internet based on whether it is grossly offensive, annoying, inconvenient, etc.
Why is section 66A necessary?
To understand the necessity of section 66A, we must understand the differences in the actions taken to invoke these provisions as an alternative to section 66A. Before the age of information technology, freedom of speech was abused in public gatherings by giving controversial speeches. Therefore, the IPC is designed to deal with situations where mass gatherings become violent. Naturally, the actions recommended in the IPC are not quick. Today, due to the simple and far-reaching impact of technology, when the actions recommended in the IPC are taken, damage has been done.
No law is inherently perfect and can be used for personal gain. The mere possibility of abusing any law should not be a reason for repealing that law. When making laws, the legislature will consider the best for its citizens.
It does not just make laws for the authorities or ordinary citizens to abuse it. Even Section 498A has been severely abused. However, the application for withdrawal cannot be considered because the intention of the legislature is to ensure that no woman becomes a victim of domestic violence for any reason. For some time, due to courtesy of the judiciary and the government, the implementation of Section 498A has been improved.
However, it has not been questioned because of its unconstitutionality. The same is true for Article 66A. One of the shortcomings of this section is the discretion of the police, which is often abused due to the lack of appropriate guidelines. The court could have set detailed guidelines on arrests by law enforcement authorities to ensure effective enforcement of the law, just as the court did with section 498A.
The court should generally consider the legislative intent and read the meaning of the clause accordingly. This is how jurisprudence develops, and this is how the law adapts to the changes of the times without major revisions.
When the provisions are vague or subjective, the judiciary has the responsibility to formulate principles to determine whether an action contains criminal elements. . Rejecting this clause leads to a lack of security in the online world. Article 66A has undoubtedly become a monster.
But honestly, a clear section 66A is needed. The newly formulated and clearly defined Article 66A will really help combat terrible crimes such as cyberbullying and stalking. Addressing this need to protect citizens from heinous crimes is the responsibility of the judiciary and the government.
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