In this article, Neha Patankar who is currently pursuing Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata does an analysis of Section 66 A of the Information Technology Act in the light of the Supreme Court judgment

Introduction

Digital technology and new communication systems have made dramatic and drastic changes in our lives as most of the business transactions are being made with the help of computers. Business community as well as individuals are increasingly using computers to create, transmit and store information in the electronic form instead of old age paper documents as it is cheaper and also easy to store, retrieve and speedier to communicate. People are aware of the advantages but they are reluctant to conduct business or conclude transactions in the electronic form due to lack of legal framework. Since electronic commerce eliminated the need for paper based transactions, thus the need was felt to initiate e-commerce, therefore bringing legal provisions in order to get recognition for the same. The United Nations Commission on International Trade Law (UNCITRAL) adopted the Model Law on electronic commerce in 1996. India being signatory to it has to revise it laws as per the Model Law keeping into consideration the suitable amendments.

Objects and reasons

Business and consumers are increasingly using computers to create, transmit and store information in the electronic form. At present many legal provisions assume the importance of paper based documents which should bear signatures. The Law of Evidence is based upon paper based records and oral testimony. Since the electronic commerce eliminated the need for paper based transactions, hence to facilitate e-commerce the need was felt to bring urgent legal changes. The UNCITRAL adopted the Model Law in the year 1996 on electronic based communications. There is a need to bring suitable amendments with changing time in the existing law of our country in order to facilitate e-commerce. It is, therefore, proposed to provide legal recognition of electronic records and digital signature. It is also proposed to provide for a regulatory regime to supervise the Certifying Authorities issuing Digital Signature Certificates in order to prevent misuse arising out of transactions. It is also proposed to impose civil and criminal liabilities for contravention of the provisions. Thus, the changes were brought in order to satisfy the current needs of the country and to lessen the burden. But not all citizens use it for bonafide purpose some uses it for its malafide intention giving rise to cyber crime. Section 66 of the Information Technology Act 2000 (amendment 2008) speaks about cyber crimes. After (Amendment 2008) Section 66 A- 66F were added describing certain kinds of offences. Here in this Article we will be looking forward to Section 66 A specifically in the light of Supreme Court Judgements.

Illustrations related to Section 66 A

Basically, Cyber crime is an ‘unlawful acts in which the computer is either a tool or a target or both’. Section 66 A specifically talks about sending offensive messages. Certain illustrations which would clear the above stated are;

1. Pooja is Sameer’s ex-girlfriend. After their breakup Pooja married Tapan, who is unaware of Pooja’s past relationship with Sameer. Angry over this issue , Sameer sends an email to Pooja, in which he threatens that unless Pooja gives him Rs. 1lakh, he will spread news that Pooja had been pregnant before marriage. Pooja does not give him the money. Sameer sends emails to all of Pooja’s friends and relatives telling the same.

• If the information about Pooja’s pregnancy is true than Sameer will not be held liable under this section. If this information is false, then Sammer will be liable under this section.
• This section also penalizes the sending of emails ( this would include attachments in text, image, audio, video as well as any additional electronic record transmitted with the message) for the following purpose
• Causing annoyance or
• Causing inconvenience or
• To deceive or to mislead about the origin of the messages

2. Sanjay sends emails to thousands of customers of the NatCash Bank. Thes emails request the receipt to click on a link and enter their online banking username and password at a website that appears to be that of the Bank but in reality is fake. Sanjay has spoofed the emails in such a way that they appear to have originated from the NatCash Bank official email address.

• Therefore, he would be held liable under this section.

Summary of the Section 66 A

Herein below is the brief summary of the section 66 A in order to get a better understanding which is later in 2015 has been repealed by the Supreme Court in Shreya Singhal vs. Union of India.

Acts penalized under 66 A

• Sending message which is offensive, menacing or false information circulated for generating hatred, ill-will, enmity, insult , injury etc. Or sending e-mails or other messages that mislead the recipient about the origin of such messages.

Punishment under 66 A

• Imprisonment upto 3 years and fine.

Punishment for attempt under 66 A

• Imprisonment upto 18 months and fine.

Punishment for abetment under 66 A

• Imprisonment upto 3 years and fine.

Is 66 A Cognizable and Bailable

•  Yes.

As stated this section has been repealed by Supreme Court landmark Judgement in Shreya Singhal vs. Union of India (2013) 12 SCC 73.

Facts of the case

• Two girls Shaheen Dhaba and Renu Srinivasan were arrested by Mumbai police in 2012 for expressing their displeasure for a Bandh in the wake of Shiv Sena chief Bal Thackrey’s death.
• They posted some comments on Facebook in a form of expressing their displeasure.
• Further they were arrested under section 66 A of the Information Technology Act, 2000 but were released later.
• It was thus decided to close the criminal cases against them yet the arrests attracted the widespread public protest.
• It was felt that the police has misused its power by invoking section 66 A inter alia contending that it violates the freedom of speech and expression.
• Therefore the Apex Court judgement came on a batch of petitions challenging the constitutional validity of section 66 A of IT Act on the grounds of it being vague and ambiguous and further being misused by the law enforcing authorities.

Analysis of the provision

Supreme Court in the case analyzed that the said provision is curtailing the citizen’s fundamental right of Freedom of Speech and Expression, the two cardinal pillars of democracy and it being a cognizable offence is widely misused by the police authority in various states to arrest innocent persons for posting critical comments about social and political issues and about political leaders on social networking site. The court felt that it was the time to erase the provision from the law book as it has gone beyond reasonable restriction imposed by the constitution with respect to freedom of speech and expression.

Judgement

• The Court held that the provision of section 66 A is contemptuous to Article 19(1)(a) and thus is arbitrary in nature which breaches the right of citizens to express its opinion freely on the internet. The 123-page long judgement which extensively discussed Indian , US and English jurisprudence on free speech , the Supreme Court struck down Section 66-A of the Information Technology Act. Justice Nariman discussed the various standards which are applicable to adjudge when restrictions on speech can be deemed reasonable, under Article 19(2) of the Indian Constitution. It was also held that the section is unconstitutional on the ground that it takes within its sweep protected speech and considered the ‘chilling effect’ on speech caused by vague and over-broad statutory language as a rationale for striking down the provision. Further, the Court held that the ‘public order’ restriction under Article 19(2) of the Constitution would not apply to cases of ‘advocacy’, but only to ‘incitement’, specifically incitement which has a proximate relation to public disorder.

Analysis of the judgement

The judgement given in this case is important in the Supreme Court’s history as it has widen the scope of freedom of speech and expression in a way of right available to express oneself freely and thus limited the scope of state in restraining the freedom in only most of the exceptional circumstances.  Justice Nariman has highlighted that the liberty of thought and expression is not merely an inspirational ideal. It is also “a cardinal value that is of paramount significance under our constitutional scheme.”

Conclusion

Therefore, it can be concluded that striking down the provisions of the Information Technology Act in relation to section 66 A has not only widen the scope of the freedom of speech and expression but has also created a scope for posting pictures and 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. Thus if a person so finds himself defamed can exercise his right by filing a complaint for defamation under section 500 of Indian Penal Code. Hence, Section 66 A provided an opportunity to genuine victims of cyber harassment to obtain immediate relief against content that may be insulting or injurious in nature, abrogation of which has now made Police authorities toothless in dealing with the growing menace of cyber bullying.