Supreme Court to Centre on Sec.66A of IT Act, 2000

By JASHASWEE MISHRA (Project Associate – CLAT EASY)

The Supreme Court has referred to Section 66A “open-ended and unconstitutionally vague”. It said not anything quick of quashing the law in its entirety should suffice for the reason that this provision “arbitrarily, excessively and disproportionately” invaded the right to free speech, right to dissent, right to recognize, and had a “chilling effect” on constitutional mandates.

Section 66A criminalised “grossly offensive” or “menacing individual” messages despatched in the form of textual content, audio, video, pix, or any other electronic record. It furnished the punishment of up to a few years in prison.

The invalid Section 66A is frequently invoked out of lack of know-how, but it serves as a tool of harassment. 

It is quite disconcerting that the Supreme Court has been informed for the second one time in two years that Section 66A of the IT Act, which was struck down as unconstitutional six years ago, is still being invoked by means of the police and in some trial courts. One can see why the Court deemed it “a shocking scenario” when a petition by the People’s Union for Civil Liberties (PUCL) got here up for hearing. Section 66A made messages deemed by using the police to be offensive or menacing to anyone, or people who triggered “annoyance”, a criminal offence if those were despatched thru a computer or pc useful resource. It prescribed a jail term of up to three years on conviction. In its landmark judgment in Shreya Singhal (2015), the Court ruled that the availability became vague and violated the freedom of loose speech. It became so extensively defined that it took into its sweep covered speech also, and consequently upset the balance among the workout of the loose speech right and the imposition of reasonable regulations on it. In January 2019, too, the Court’s interest changed into interest in the identical trouble of the invalidated provision being utilized by the police to register instances based on court cases. Not tons appears to have changed on account then, and it’s pretty surprising that the police headquarters and prosecutors in the numerous States had no longer disseminated the effect of the Court ruling among officers manning police stations.

There have been also instances of courts framing expenses underneath Section 66A even after legal professionals had cited the 2015 judgment. The PUCL has stated as many as 745 cases are nevertheless pending in district courts in 11 States. It is not hard to surmise that law enforcement officials who obtain lawsuits and sign in them as First Information Reports might not be aware of the judgment, even though one cannot rule out times of the phase being invoked deliberately as a tool of harassment. Ignorance of the law is no excuse for the citizen, and it ought to similarly be no excuse for law enforcement officials who encompass invalidated sections in FIRs. Recently, police in Uttar Pradesh booked a journalist for defamation under Section 500 of the IPC, even though the Supreme Court has ruled that defamation can be pursued most effectively by way of personal complaints and there may be no FIR. Modern listening may also bring about directions to States and the police, in addition to the courtroom registries, for appropriate advisories to each station-residence officers and magistrates, but it is not necessary for those worried to watch for such orders. Police chiefs and the directorates of prosecution should proactively begin a procedure of conveying to the lower courts and investigators all important judgments and their effect on the practices regarding research, prosecution and the framing of prices every now and then.

The Supreme Court has issued a note to the Centre on the usage of Section 66A of the IT Act that changed into scrapped several years ago and said that it’s surprising that the judgment striking down the law has not been applied even now.

In Shreya Singhal v. Union of India judgement, Justices Rohinton F. Nariman and J. Chelameswar had discovered that the weakness of Section 66A lay within the reality that it had created an offence on the idea of undefined movements: along with causing “inconvenience, risk, obstruction and insult”, which do not fall some of the exceptions granted under Article 19 of the Constitution, which guarantees the freedom of speech.

The court also found that the undertaking became to perceive in which to draw the road. Traditionally, it’s been drawn at incitement whilst terms like obstruction and insult remain subjective.

In addition, the courtroom had referred to that Section 66A did no longer have procedural safeguards like different sections of the regulation with comparable goals, consisting of :

• They want to reap the concurrence of the Centre earlier than movement can be taken.
• Local government should continue autonomously, actually on the whim of their political masters.
• The judgment had observed that Section 66A was contrary to both Articles 19 (loose speech) and 21 (proper to existence) of the Constitution. The entire provision became struck down by means of the court.
• After that authorities had appointed an expert committee (T.K. Viswanathan committee) which proposed a legislation to satisfy the project of hate speech online.

What’s the issue?

Even after 7 years of the regulation being struck down, as of March 2021, a total of 745 instances are nevertheless pending and energetic earlier than the district courts in 11 states, in which the accused persons are being prosecuted for offences under Section 66A of the IT Act.

Background

Section 66A had been dubbed as “draconian” for it allowed the arrest of numerous innocent individuals, igniting a public outcry for its scrapping. This had caused the Supreme Court putting it down as unconstitutional in March, 2015 in Shreya Singhal v. Union of India.

What changed in the courtroom’s judgment in the Shreya Singhal vs Union of India Case?

• SC held that Sec 66A is unconstitutional and void on the ground that it has become excessively indistinct, open-ended and undefined.
• It did not provide clear direction, both to the users of the internet or to the regulation enforcement corporations on what acts performed on the internet might amount to defamation.
• Court held that vagueness of Sec 66A, took away the liberty of speech and the proper to descent. It had an intimidating effect on unfastened speech.

Why did SC struck down section 66A?

The SC had stated that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech, under article 19(1) (a) of the Constitution, and upsets the stability among such proper and the reasonable restrictions that may be imposed on such proper and the definition of offences beneath the provision was open-ended and undefined.

The court also said that the supply used expressions “absolutely open-ended and undefined” and every expression used became “nebulous” in which means.

• What may be offensive to one might not be offensive to some other.
• What may also cause annoyance or inconvenience to one might not cause annoyance or inconvenience to some other.
• Even the expression ‘constantly’ is completely obscure.

What is Section 66A all about?

Section 66A defines the punishment for sending “offensive” messages via a computer or every other verbal exchange tool like a cell telephone or a tablet. A conviction can fetch a maximum of 3 years in jail and a quality.

Section 66A of the Information Technology Act is unconstitutional in its entirety, the Supreme Court ruled even as striking down a “draconian” provision that had caused the arrests of many human beings for posting content deemed to be “allegedly objectionable” on the Internet. It is apparent that Section 66A arbitrarily, excessively and disproportionately invades the proper of loose speech and upsets the stability among such proper and the affordable restrictions that can be imposed on such rights. According to the Supreme Court, the definition of offences underneath the provision turned into “open-ended and undefined”, and as a result susceptible to be misused by means of the regulation enforcement corporations.

What have been the essential developments in the context of this Section? 

In the past, some arrests were made underneath Section sixty six(A) on the idea of social media posts directed at extraordinary personalities, together with politicians.  These  were imagined to be offensive in nature.  In November 2012, there were diverse reports of alleged misuse of the regulation, and the penalties imposed have been said to be disproportionate to the offence.  Thereafter, a Public Interest Litigation (PIL) was filed within the Supreme Court, though this provision on grounds of unconstitutionality.  It was said to impinge upon the freedom of speech and expression guaranteed by using Article 19(1)(a) of the Constitution. How has the government answered so far? Subsequently, the crucial government issued suggestions for the purposes of Section 66(A).  These recommendations clarified that prior approval of the Deputy Commissioner or Inspector General of Police became required earlier than a police officer or police station may want to register a complaint under Section sixty six(A).  In May 2013, the Supreme Court (on the subject of the above PIL) also handed an order saying that such approval turned into essential before any arrest was to be made.  Since matters related to police and public order are handled by respective nation governments, a Supreme Court order becomes required for those hints to be relevant throughout the u . S . A ..  However, no changes were made to Section sixty six A itself.  

Has there been any legislative movement with reference to Section 66(A)? 

A Private Member Bill was delivered in Lok Sabha in 2013 to amend Section 66(A) of the IT Act.  The Statement of Objects and Reasons of the Bill stated that most of the offences that Section 66(A) treated had been already protected by the Indian Penal Code (IPC), 1860. This had ended in twin consequences for the same offence.  According to the Bill, there were additional inconsistencies between the two legal guidelines with regards to the length of imprisonment for the identical offence.  The offence of threatening a person with injury via e-mail draws imprisonment of  years below the IPC and three years under the IT Act.  The Bill was subsequently withdrawn. In the identical 12 months, a Private Members decision was also moved in Parliament.  

The resolution proposed to make 4 changes: 

(i) bring Section 66(A) in step with the Fundamental Rights of the Constitution; 

(ii) restriction the utility of the supply to conversation among two persons; 

(iii) precisely define the offence blanketed; and 

(iv) reduce the penalty and make the offence a non-cognizable one (this means that no arrest may be made without a court order).  However, the decision was also withdrawn. 

Meanwhile, how has the PIL proceeded? 

According to news reviews, the Supreme Court  in February, 2015 had stated that the constitutional validity of the availability could be examined, in relation to the PIL before it.  The authorities argued that they have been open to amend/trade the supply because the goal now is not to suppress freedom of speech and expression, but only to cope with cyber crime.  The issues being examined with the aid of the Court relate to the powers of the police to determine what is abusive, reasons for annoyance, and so forth. In preference to the exam of the offence by the judiciary .  This is pertinent due to the fact this offence is a cognizable one, attracting a penalty of at least 3 years imprisonment.  The regulation is also stated to be ambiguous on the difficulty of what could represent statistics; this is “grossly offensive,” as no suggestions were provided for the equal.  This loss of clarity ought to cause elevated litigation. The judgement is not available in the public domain but. It remains to be seen what the reasoning of the Supreme Court became, in its choice to strike down Section 66A, these days.