Tag: section 66A

Section “66A” of the IT act

Section 66A in The Information Technology Act, 2000

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;

or(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.

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, image, audio, video and any other electronic record, which may be transmitted with the message.

Unconstitutional

Shreya Singhal v. Union of India is a judgement by a two-judge bench of the Supreme Court of India in 2015, on the issue of online speech and intermediary liability in India. The Supreme Court struck down Section 66A of the Information Technology Act, 2000, relating to restrictions on online speech, as unconstitutional on grounds of violating the freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India. The Court further held that the Section was not saved by virtue of being a ‘reasonable restriction’ on the freedom of speech under Article 19(2). The Supreme Court also read down Section 79 and Rules under the Section. It held that online intermediaries would only be obligated to take down content on receiving an order from a court or government authority. The case is considered a watershed moment for online free speech in India.

Recent buzz

On July 5 this year, a Bench led by Justice Rohinton F. Nariman said it was “distressing,” “shocking” and “terrible” that people are still booked and tried under Section 66A even six years after the apex court struck down the provision as unconstitutional and a violation of free speech.NGO People’s Union of Civil Liberties, represented by senior advocate Sanjay Parikh and advocate Aparna Bhat, had drawn the court’s attention to the violations.Justice Nariman had authored the judgment trashing Section 66A in a petition filed by law student Shreya Singhal, who highlighted cases of young people being arrested and charged under the ambiguous provision for their social media posts.

“Section 66A of the IT Act has continued to be in use not only within police stations but also in cases before trial courts across India. This information was available on Zombie Tracker website, developed by a team of independent researchers… The findings of the website reveal that as on March 10, 2021, as many as 745 cases are still pending and active before district courts in 11 States, wherein the accused are being prosecuted for offences under Section 66A of the IT Act,” the PUCL has submitted.

FIRs Under Struck Down Section 66A IT Act

Introduction

On 5th July 2021, the Supreme Court expressed their shock at the practice of police registering FIRs under Section 66A of the Information Technology Act which was struck down by the Supreme Court in the 2015 judgement in the case of Shreya Singhal. An application filed by Peoples Union for Civil Liberties (PUCL) was being heard by a bench headed by Justice RF Nariman. The application sought directions and guidelines against the FIRs which were being filed under Section 66A of the IT Act which was struck down. There were over 1000s of FIRs being filed under the said provision. Justice Nariman commented on the issue, saying “What is going on is terrible. We are issuing notice”.

Background

An amendment made in 2008 introduced Section 66A in the Information Technology Act, which penalized sending of “offensive messages”, it also introduced Section 69. This amendment was passed on 22 December 2008 without any debate in the Lok Sabha and it was signed by President Pratiba Patel on 5th February 2009 to be made an official part of the law. Using this amendment, the Government of India restricted the freedom of speech to avoid self-harm and misuse. This allowed the arrest of any person which the law per se felt was harmful. In 2012, Shreya Singhal filed a Public Interest Litigation (PIL) in the Supreme Court of India.

Shreya Singhal v Union of India

In 2012, the leader of Shiv Sena, Bal Thackeray passed away and there was a bandh declared in Maharashtra by the members of Shiv Sena. Two girls, Shaheen Dhada and Rinu Srinivasan residing in Thane, were involved in this case, one of them posted something on Facebook and the other simply liked the post. Both of them were expressing their displeasure because of the state-wide bandh. They were arrested by the Mumbai police in 2012 under Section 66A of the Information Technology Act, 2000. This section aims to punish any person who sends through a computer resource or communication device any information that is grossly offensive, or with the knowledge of its falsity, the information is transmitted for the purpose of causing annoyance, inconvenience, danger, insult, injury, hatred or ill-will.

Although the two girls were released later, and their criminal cases were closed, they attracted widespread public protests. People felt that the police had misused their power by invoking Section 66A, they felt that it violated the freedom of speech and expression. So, later a writ petition was filed in Public Interest to declare Section 66A, 69, and 79 of IT Act, 2000 as unconstitutional. It was argued that the Section was in violation of Article 19(1)(a) and no provision under Article 19(2) saved it. It was also argued that the section created a lot of vagueness which gave arbitrary powers to the authorities.

In the judgement of this case, the Supreme Court agreed that none of the grounds contained in Article 19(2) were capable of being invoked as legitimate defenses for the validity of Section 66A of the IT Act. They said that any law that seeks to impose a restriction on freedom of speech can only pass muster. They also agreed that Section 66A is vague as it did not define what counts as ‘offensive’ as the object of offense will always be subjective. The Court found that Section 66A leaves many terms open-ended and undefined, therefore making the statute void for vagueness. To conclude, the court invalidated Section 66A in its entirety as it violated the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.

Conclusion

The highest Court had made the statute void but the police still keep using it to curb voices and rights that go against them. It is important to make every citizen aware of this update so that they know when they are being charged under a revoked section. And it is also important to hold regular briefings in every police station specifying which laws no longer hold credibility so that each one of them is aware and knows that doing so would then be a crime.

References