SC strikes down Section 66A of the Information Technology Act

SC STRIKES DOWN SECTION 66A OF IT ACT

• Section 66A of the Information Technology Act is unconstitutional in its entirety, the Supreme Court ruled striking down a “draconian” provision that had led to the arrests of many people for posting content deemed to be “allegedly objectionable” on the Internet.
• “It is clear 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,” said a Bench of Justices J. Chelameswar and Rohinton F. Nariman.
• The definition of offences under the provision was “open-ended and undefined”, it said.
• The Bench turned down a plea to strike down sections 69A and 79 of the Act, which deal with the procedure and safeguards for blocking certain websites and exemption from liability of intermediaries in certain cases, respectively.
• In the judgment, the court said the liberty of thought and expression was a cardinal value of paramount significance under the Constitution.
• Discussion, or even advocacy, of a particular cause, no matter how unpopular it was, was at the heart of the right to free speech and it was only when such discussion or advocacy reached the level of incitement that it could be curbed on the ground of causing public disorder.
• The court then went on to say that Section 66A actually had no proximate connection with public order or with incitement to commit an offence.
• “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 court held.
• Holding several terms used in the law to define the contours of offences as “open-ended, undefined and vague”, the court said: “Every expression used is 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.”
• The court pointed out that a penal law would be void on the grounds of vagueness if it failed to define the criminal offence with sufficient definiteness.
• “Ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed so that arbitrary and discriminatory enforcement of the law does not take place,” the court said.

SC REJECTS CENTRE’S PLEA

• The Supreme Court rejected the Centre’s plea that it was committed to free speech and would ensure that the provision was administered in a reasonable manner.
• “If Section 66A is otherwise invalid, it cannot be saved by an assurance from the learned Additional Solicitor-General that it will be administered in a reasonable manner.
• Governments may come and governments may go, but Section 66A goes on forever. An assurance from the present government, even if carried out faithfully, would not bind any successor govt.,” the court said.

ALL YOU NEED TO KNOW ABOUT SECTION 66A OF THE IT ACT

What Section 66A says:

“Any person who sends, by means of a computer resource or a communication device

1. any information that is grossly offensive or has menacing character; or
2. 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,
3. 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.”

Section 66A provides punishment for sending offensive messages through communication services.

• These messages may be any information created, transmitted or received on a computer system, resource or device including attachments in the form of…
  • Text
  • Images
  • Audio
  • Video
  • Any other electronic record which may be transmitted with the message
• The law targets messages that…
  • Are grossly offensive or menacing
  • Proffer false information intending to cause annoyance, inconvenience, intimidation, insult, obstruction, etc.,
  • Are intended at deceiving the addressee about the origin of the message
• The law was amended in 2008 and received Presidential assent on February 5, 2009.
• The incident that rocked the nation was the arrest of two young women, , for a comment posted on Facebook that questioned the shutdown of Mumbai following the demise of Shiv Sena Supremo Bal Thackeray.
• The girls were arrested under Section 66A(a) of the IT Act for allegedly sending a ‘grossly offensive’ and ‘menacing’ message through a communication device.

CONSTITUTIONALITY OF SECTION 66A

• Several PILs have been filed challenging the constitutionality of Section 66A of the IT Act.
• In a November 2012 PIL, Shreya Singhal submitted to the Supreme Court that Section 66A curbs freedom of speech and expression and violates Articles 14, 19 and 21 of the Constitution.
• The petition further contends that the expressions used in the Section are “vague” and “ambiguous” and that 66A is subject to “wanton abuse” in view of the subjective powers conferred on the police to interpret the law.
• In reply to the petition, the Union government defended the constitutionality of Section 66A relying first on the “Advisory on Implementation of Section 66A of the Information Technology Act 2000” issued by the Department of Electronics and Information Technology on January 9, 2013 to the Chief Secretaries and the Director General of Police of all States/UTs.
• The advisory asks State governments not to allow the police to make arrests under Section 66A of the IT Act without prior approval from an officer not below the rank of Inspector General of Police in the metropolitan cities or Deputy Commissioner of Police or Superintendent of Police at the district level.
• However, this advisory is clearly not sufficient as political interference in law enforcement is well known and the arrests, as shown above, have not abated.
• The Centre has further sought to justify the legality of Section 66A, introduced in the 2009 amendments to the IT Act, on the ground that it has been taken from Section 127 of the U.K. Communications Act, 2003.
• In fact, Section 66A is very different from Section 127 which, moreover, has been ‘read down’ by the House of Lords on the grounds that Parliament could not have intended to criminalise statements that one person may reasonably find to be polite and acceptable and another may decide to be ‘grossly offensive.’
  • Section 66A(a) refers to the sending of any information through a communication service that is ‘grossly offensive’ or has ‘menacing character’.
  • In the U.K., Section 127(1)(a) makes the sending of ‘matter that is grossly offensive or of an indecent, obscene or menacing character’ an offence.
• The drafters of the 2009 amendments to the IT Act in India presumably omitted the words ‘indecent, obscene’ as Section 67 of the IT Act makes the publishing or transmittal of obscene material in electrical form an offence.
• The meaning of the term “grossly offensive” in both Section 66A(a) and Section 127(1)(a) is crucial and remains yet undefined in India.
• Section 66A(b) is even more problematic than Section 66A(a) because it makes an offence of sending through a computer resource or communication device “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.”
• Surely it cannot be a legitimate legislative objective to restrict freedom of speech in order to prevent annoyance or inconvenience?
• Can a democratic society criminalise the causing of annoyance, inconvenience, insult or ill will? Causing insult or ill will or enmity could be a criminal offence if it amounts to defamation.
• However, insulting someone or causing inconvenienceper se cannot surely be a crime in itself either in the real or virtual world.
• While Section 66A(b) of the Indian IT Act has unbelievably lumped causing annoyance and inconvenience in the same Section as criminal intimidation and made it subject to the same punishment, Section 127(1)(b) of the U.K. Communications Act is limited to the sending of a message that he knows to be false “for the purpose of causing annoyance, inconvenience or needless anxiety to another.”

SECTION 127(1)(B)

• The punishment for the offence in Section 127(1)(b) is a maximum of six months imprisonment or a fine of £5,000 while Section 66A imposes a much more serious punishment of imprisonment up to three years and a fine without limit.
• Therefore, Section 66A(b) of the IT Act is not the same as Section 127(1)(b) of the U.K. Communications Act, 2003 in terms of scope of the offence or the punishment.
• Section 66A certainly does not engage in the delicate balancing required to pursue the legitimate objective of preventing criminal intimidation and danger through social media without going no further than required in a democratic society to achieve that end.
• The drafters of Section 66A(b) have equated known criminal offences in the real world with acts such as causing annoyance and inconvenience that can never constitute an offence in the real world and should not be offences in the virtual world.
• Therefore, the legislative restrictions on freedom of speech in Section 66A(b) cannot be considered as being necessary to achieve a legitimate objective.

Section 66A should not be considered a ‘reasonable restriction’ within the meaning of Article 19 of the Constitution and must be struck down as an unconstitutional restriction on freedom of speech.