Striking down Section 66A – Victory of freedom of speech?
The Indian mass rejoiced when the Supreme Court of India struck down the alleged draconian Section 66A of the IT Act declaring it unconstitutional and untenable. The Supreme Court declared that the Section in question was volatile of Article 19(1)(a) of the Constitution which guarantees ‘freedom of speech and expression’ after a number of petitions were filed against the validity of the Section alleging that it tramples upon the Fundamental right to freedom of speech and expression and clearly the Supreme Court did not have a different opinion. The first PIL on the issue was filed by a law student Shreya Singhal in 2012, who sought amendment in the Section 66A of the Act after which the issue gained further momentum when two girls from Thane district in Maharashtra were arrested when one comment against the shutdown of Mumbai on the death of Shiv Sena Leader Bal Thakrey and the other ‘liked’ the comment on a social networking site. This incident fueled the debate on the constitutionality of the Section and the misuse of the same by Government officials.
What is Section 66A?
The original Act of 2000 did not contain such Section and the same was brought to the Act by an amendment in 2008. Section 66A defines the punishment for sending “offensive” messages through a computer or any other electronic device like a mobile phone or a tablet and the conviction under this Section could fetch an imprisonment of up to three years along with a fine.
Section 66A. Punishment for sending offensive messages through communication service, etc.
Any person who sends, by means of a computer resource or a communication device,—
a) any information that is grossly offensive or has menacing character; or
b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation.— For the purpose of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.
Various lacunas in Section 66A-
The objective behind the introduction of this Section in 2008 under the IT Act was to prohibit the misuse of information technology through social media and other mediums but, the law makers ended up endowing whimsical power of interpretation to the law enforcement agencies as most of the terms used in this Section have not been given any precise definition and are as vague as it can be. The term “offensive” used in the Section has no distinctive meaning and is open to a wide connotation which ultimately ends up giving wide powers to the law enforcement agencies. What may be non injurious for one may lead to a complaint by the other and the police can arrest the former on the latter’s complaint accepting his view.
How did it start?
After Shreya Singhal filed a PIL seeking amendment in the said Section in 2012, the issue triggered a nationwide outrage after arrest of two girls who showed discontent towards the shutdown of Mumbai after the death of Bal Thakrey by commenting against such an act on a social media and the other liked the said comment. Little did they know that there use of their freedom of speech and expression would draw charges of cyber crime against them.
The Supreme Court’s Verdict-
The SC said Section 66A of the Information Technology Act was violative of Article 19(1)(a) of the Constitution guaranteeing freedom of speech and expression. Terming liberty of thought and expression as "cardinal", a bench of justices J Chelameswar and R F Nariman said, "The public's right to know is directly affected by section 66A of the Information Technology Act." The court, however, allowed the government to block websites if their contents had the potential to create communal disturbance, social disorder or affect India's relationship with other countries. "How is it possible for law enforcement agency and others to decide as to what is offensive and what is grossly offensive? What may be offensive to a person may not be offensive to the other," the SC bench said. The court said terms like "annoying", "inconvenient" and "grossly offensive", used in the provision are vague as it is difficult for the law enforcement agency and the offender to know the ingredients of the offence. The bench also referred to two judgments of separate UK courts which reached different conclusions as to whether the material in question was offensive or grossly offensive. The SC bench rejected the assurance given by NDA government during the hearing that certain procedures may be laid down to ensure that the law in question is not abused. The government had also said that it will not misuse the provision. "Governments come and go but section 66A will remain forever," the bench said, adding the present government cannot give an undertaking about its successor that they will not abuse the same.1
The judgment of the Supreme court is once again the victory of law in the sense that the verdict of the Supreme Court has maintained the dignity of the Constitution by protecting Article 19(1)(a). It is a landmark judgment against the whimsical powers of the government authorities and has come up as the victory of sanity over arbitrariness.
1 - The Times Of India