The validity of Section 66A of the Information Technology Act

Sec 66A was repealed from IT Act after the landmark case of Shreya Singhal. This section went against the Fundamental Right of Freedom of Expression embodied in Article 19(1)(a) of our Constitution, not only that it was vague and arbitrary and difficult to apply to cases. Read along to know more about how rights are protected in India!

The Information Technology (IT) Act, 2000 provides for legal recognition for transactions through electronic communication, also known as e-commerce.  The Act was amended in 2009 to insert a new section, Section 66A of the Information Technology Act which was said to address cases of cybercrime with the advent of technology and the internet. The objective behind the 2008 amendment and hence, Section 66A, was to prevent the misuse of information technology, particularly through social media such that S.66A made it a criminal offense to electronically send any information that was ‘grossly offensive’, ‘menacing’ or any information that causes ‘annoyance’, ‘obstruction’, ‘insult’, ‘hatred’, amongst other things, to another person.

This article deals with the section 66A of the Information Technology Act. Firstly it will focus on the issue: Does section 66A fall under the purview of reasonable restrictions imposed in article 19(2) of the Constitution. As the constitution gives the right to speech and also with the relevance of article 66A in the context of cyber laws and cyber crimes, its impact on. And later it will deal with the authenticity validity of the 66A with the help of case studies.

Introduction

The Supreme Court of India took a historic decision in the year 2015 of striking down S.66A of the IT Act[1], 2000(amended in 2008) (the Act). This particular provision is not a part and parcel of the original Act which was created in 2000. S.66A was inserted to the main Act through the amendment made in 2008 which revamped the Act to regulate several types of the internet crimes including sending of offensive messages through the internet and digital communication services, publishing sexually explicit materials in the internet, video voyeurism, leakage of confidential data by intermediary, cyber terrorism, economic crimes like phishing, identity theft etc[2].  Article 19(A) (1) of the Indian constitution, which guarantees freedom of speech & expression to an individual, in the form of free speech versus regulation, article 19(2) takes it back, imposing certain reasonable restrictions on Right to Freedom of Speech & Expression.

 The word ‘reasonable’ does not comply with the draconian law of 66A of IT Act nor does it fall under the above-said categories. Article 69 prescribes power to the government to censor block any objectionable information or website. It is clear that 66A is unconstitutional, whimsical and arbitrarily invades the right to speech[3]. This act was hugely criticized and accused from all sections of the society.

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Validity of Section 66A of the Information Technology Act

The validity of this law is a supportive agent to the primarily unconstitutional elements and is merely supporting factors that fuel the invalidation of the law.

In the case of Shreya Singhal vs. Union of India[4], it was considered by the Hon’ble Supreme Court of India as a Writ Petition under Article 32 of the Constitution of India and was decided by the Court in 2015. By way of this writ petitions, the Supreme Court commonly disposed of these petitions by ruling Sections 66A of the IT Act, 2000, hereinafter called as Section 66A and Section 118(d) of the Kerala Police Act unconstitutional as being violative of Article 19(1) (a) and not saved by Article 19(2) The features of Article 19 as enlisted in the 101st Report of The Law Commission of India[5]

  1. Article 19 is confined to citizens and foreigners cannot claim under this right.
  2. A corporate body cannot claim citizenship and therefore cannot claim any right under Article 19.

Further, it ruled those Sections 69A and 79 of the IT Act, 2000 and the Information Technology Rules, 2009 constitutionally valid.[6].

The court was of the view that only reasonable restrictions can be imposed as contained under Article 19(2)[7]. This was in response to a PIL that challenged the constitutionality of this provision. The vagueness of this section makes the law abider really cautious as to which behavior observed by him would be over-stepping the limits set by the law and which behavior would be punishable. Thus such vagueness must not be encouraged.

Thus it is important that penal statutes be construed in a strict manner and be made in such a manner as to cause the least amount of ambiguity i.e. the legislature should aim at enforcing the penal statutes strictly or in the same manner as they were intended to be enforced and should be constructed in such a manner so as to ensure the least scope for judicial interpretation. However, as established in the cases of State of MP v. Kedia Leather & Liquor Limited[8] and State of Karnataka v. AppaBaluIngale[9], the Supreme Court and other courts always held that there was no constitutional challenge on the ground of vagueness. Thus, there is no constitutional challenge or a law cannot be repealed by the courts on the ground of being unconstitutional merely by reason of its vagueness or misuse of the law.

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This section gave arbitrary powers to the police to make arrests for anything deemed ‘offensive’ or ‘annoying’ and has seen a number of arrests by the police in the recent years for comments posted on social networking sites relating to social events and political leaders. This gave rise to a number of petitions challenging Section 66A before the Supreme Court, has disposed of these petitions together striking down the provision as conflicting with the fundamental right to speech and expression.

The Supreme Court recognized these as basic human rights and any law which is in contravention with the basic structure of the Constitution shall be regarded as unreasonable and arbitrary in nature as a result of it being not acceptable violating the basic human rights fundamental to the Constitution of India[10].

The bench comprising of Justice R F Nariman and Justice J Chelameswar was of the opinion the fundamental right is directly affected by Section 66A of the Information Technology Act. The court has clarified that although the right to freedom of speech and expression is not absolute, the restrictions discussed under Article 19(2) of the Constitution would not cover Section 66A, as the restrictions could be justified only if there was a threat to public order or ‘clear and present danger’. However, Section 66A failed both these tests. The right to speech and expression has been understood as quite synonymous to the right to opine and right to provide as well as receive information[11].

Further, S.C was of the opinion that Section 66A used expressions which are completely open-ended and undefined and observed that every expression used was nebulous in meaning. The court added that 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

S.C has turned down a plea to strike down Section 69A[12]and Section 79[13] of the IT Act, which was also challenged by the petitioners. And the court has modified the provisions of these sections and mandated a court order or a government notification for an intermediary to take down content from a website. In relation to these provisions of law, the Supreme Court of India has observed that there are sufficient checks and balances in place and observed these to be constitutionally valid[14].

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Conclusion

Free speech and expression is the prime value to the democracy, later cannot be achieved without former. Free speech, which is a necessity for existence and also for well being in the society and could not be achieved in totality. Now we are living in a well-informed and civilized society, every citizen should adhere to some regulations of the government and its authorized agencies. It can be concluded that the striking down the provisions of the IT Act in relation to section 66A has not only widen the scope of the freedom of speech and expression but has also created a scope for posting pictures & comments against any person without any fear and restriction of punishment as the words such as offensive and menacing are vague and ambiguous and can be interpreted widely.

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[1] Information Technology Act,2000

[2] para 2 of the Bill to amend the Information Technology Amendment Act,2006.Availablehttp://cybercrime.planetindia.net/statement-objects-foritaa-2006.htm

[3] Chaudhry, Amit & Mahapatra, Dhananjay. (May 25, 2015). Section 66A quashed: Citizens can still be arrested for online posts. timesofindia.com

[4]Shreya Singhal v Union of India AIR 2015 SC 1523

[5] Law Commission of India: Report 101

[6] Section 66A; Information Technology Act, 2000

[7] Sinha, Bhadra. (March 25, 2015). Supreme Court upholds free speech on internet, scraps ‘unconstitutional’ section 66A of IT Act. hindustantimes.com

[8] 2003 7 SCC 389

[9] 1995 Supp. (4) SCC 469

[10] Keshavananda Bharti v State of Kerala (1973) 4 SCC 225

[11] Sakal Papers (P) Ltd. & Ors. v. Union of India, [1962] 3 S.C.R. 842

[12] Section 69A deals with procedure and safeguards for blocking certain websites

[13] Section 79A provides for the exemption from liability of intermediaries in certain cases

[14] Sairam Rajgopal, Principals Anxieties and Concern in the Section- 66A Judgement. Thehinduonline (April 6, 2015).