Newspapers and social media were filled with updates and flashes covering the decision by the Apex Court on 24th March 2015, which struck down section 66A of the Information Technology Act, 2000. Appreciations from all classes of the society were expressed soon after the judgment was delivered.
While deciding a writ petition filed by Shreya Singhal, the Supreme Court of the India ("the Court") held that the impugned Section 66A is unconstitutional as it is violative of Article 19(1)(a) of the Indian Constitution which talks of freedom of speech and expression.
In her petition, the petitioner pleaded that the language of the impugned section is so wide and vague and incapable of being judged on objective standards and violates Article 19 of the Constitution which is the backbone of Indian democracy.
The Government of India however contended that the impugned section could not be held invalid on a ground there is likely an abuse of power by the authorities. Mere assumption cannot invalidate a statutory provision.
The Court rejected the contentions of the Government and decided the case in favour of the petitioner.
Section 66A of the Information Technology Act ("the IT Act") provides punishment for sending offensive messages through communication service, etc. reads as under:
Any person who sends, by means of a computer resource or a communication device,
(i) any information that is grossly offensive or has menacing character; or
(ii) 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,
(iii) 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.
The words like "grossly offensive" and "menacing character" used in the section are of very wide connotation and can be interpreted differently by different people. As there is no proper definition for such words in the statute itself the same could be interpreted to cover anything within their ambit, for example, even a complaint by an over sensitive person for whom a trivial issue is offensive could land an innocent person in prison as per this provision.
The Government incorporated this section as it believed that in this era of technological advancements the enforcement agencies of the country i.e. the police authorities must have additional powers so as encounter the new crimes like publication of sexually explicit material in electronic form, other offensive messages, e-commerce frauds etc. which could be easily committed in the digital environment. Therefore penal provisions are a mandate to keep a check on such crimes on the Internet.
Soon after its incorporation, Section 66A has been in controversy. The fighters and the activists of freedom of speech and expression have criticised the section as it hampers on the very basic democratic structure of the country and deprives the citizens of their freedom of speech and expression guaranteed by the Constitution.
Major debate on the validity of this section grew when few incidents of arrest in its pursuance came to light. This raised voices against its incorporation in the IT Act across the country.
In 2012, two girls in Mumbai were arrested after one of them had put a status criticising the bandh held in the city after the death of Shiv Sena head and other one liked the status. The arrest was opposed across the nation. Another similar incident happened when two men from Mumbai were arrested for posting some offensive comments against some Congress leaders on Facebook. Many other incidents followed in later years where the power under Section 66A was abused by the police and arrests were made. In a recent incident from Uttar Pradesh, a fifteen year old boy was arrested for putting up some status on Facebook criticizing a minister of the regional Government.
These incidents clearly showed the abuse of the authority by Government agencies and ridiculed the whole concept of freedom of speech and expression which is a vital part of the democratic structure of the country.
However, the Supreme Court keeping intact the democratic structure of the Indian Constitution and duly recognizing the freedom of speech and expression held in the present petition that "Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right". The Court made it a point to mention that the impugned section failed to fall within the ambit of reasonable restrictions on freedom of speech and expression as per the Constitution.
While deciding the point whether information on internet could incite anybody, the Court confirmed that "The information disseminated over the Internet need not be information which 'incites' anybody at all. Written words may be sent that may be purely in the realm of 'discussion' or 'advocacy' of a 'particular point of view'. Further, the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the Indian Penal Code at all"
The Supreme Court acted as the guardian of its citizen's rights and invalidated the draconian Section 66A of the IT Act, 2000. However one should remember that there are other provisions in the IT Act, Indian Penal Code and other statutes dealing with defamation, obscenity, public order etc. which can still attract penal liabilities. So words of caution for all, "Still think before you click".
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