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This article is written by Buddhisagar Kulkarni, pursuing Diploma in Business Laws for In-House Counsels from LawSikho.

Introduction

The Information Technology Act (IT Act) was introduced in 2000 when the internet was still in its infancy in India. Social media websites were not popular at the time. Smartphone mobile apps were not in vogue at the time.

No one could have anticipated the IT explosion that occurred thereafter, affecting towns, villages, and cities all over India. It’s no surprise that the problem of cybercrime was not thoroughly considered in the IT Act. Cybercrime was just mentioned briefly in the IT Act. Following a widespread outcry over the IT Act’s flaw, substantial changes were enacted in 2008. Through the 2008 amendment, Section 66A was inserted in the IT Act. In this article, we will decode Section 66A of the IT Act (“Section 66A”) and look at why the Supreme Court had struck down Section 66A as unconstitutional.

Section 66A decoded

The use of a computer or other communication equipment for example; a mobile phone to deliver insulting communications was made illegal under Section 66A. The cops had to figure out whether or not the information given in the communication was insulting.

To book any person under Section 66A, the content in the message which includes any attachments in writing, picture, sound, video, and any other electronic record that may be transmitted with the messages required to be:

  1. Extremely insulting, 
  2. Incorrect and intended to cause displeasure, trouble, danger, obstruction, insult, injury, criminal intimidation, hostility, dislike, or ill feeling, 
  3. Designed to mislead the receiver as to the source of such messages.

The offence was punishable by imprisonment for a term of up to three years and a fine.

Misuse and abuse of social media platforms became a challenge to the government as they achieved popularity in India. As a result, in 2009, Section 66A came into force.

However, the rise of social media has resulted in a large number of allegedly “grossly offensive” posts or messages. Several complaints were filed, and many people were arrested and booked.

Section 66A empowered the government to make arrests for supposedly “offensive and menacing” online postings. This legislation was adopted without debate in the Parliament.

Section 66A authorized the police to make arrests for the conduct that those officers, in their discretion, deemed “offensive” or “menacing,” or to cause irritation, discomfort, or other harm.

Identifying the culprits and victims

One key aspect where Section 66A failed to address some critical norms was how it defined the number of culprits and victims. Was the law intended to be applied between two people, or could it be used for many-to-many, many-to-one, and one-to-many interactions?

Why was Section 66A condemned?

One of the main issues was that there was no clear definition provided in the IT Act of what was “offensive.” Because the word had such a broad meaning, it could be interpreted in a variety of ways. It was regarded as open to interpretation, and what appeared to be harmless to one person could result in a complaint from another and, as a result, an arrest under Section 66A, if the police initially accepted the latter person’s point of view.

Section 66A also hampered the freedom of speech and expression, which is enshrined in the Constitution as a fundamental right. The section was primarily used to arrest people who made unpleasant remarks or condemnations about politicians.

Section 66A finally came up for Supreme Court’s examination

The first petition was filed in court in November 2012, following Thane Police’s arrest of two girls in Maharashtra based on a Facebook post. The girls had commented on Mumbai’s closure for Shiv Sena’s chief Balasaheb Thackeray’s funeral. The arrests sparked anger from all quarters due to the way the cyber law was applied. Shreya Singhal, a 21-year-old law student at the time, filed the Public Interest Litigation (PIL) for protecting the freedom of speech and expression. Other interested parties who had borne the brunt of the misuse of this section later joined her in her petition.

Arguments against Section 66A

While the goal of the 2008 amendment was to stop the abuse of information technology, especially social media, the petitioners contended that Section 66A had extremely broad parameters that allowed for arbitrary viewpoints by law enforcement agencies.

The petitioners contended that the law was a possible tool to gag legitimate free speech online and to curtail freedom of speech and expression guaranteed by the Constitution, going outside the bounds of “reasonable restrictions” on that freedom.

Shreya Singhal v. Union of India

A bench of Justices J. Chelameswar and R.F. Nariman, On March 24, 2015, held in Shreya Singhal v. Union of India that Section 66A was unconstitutional for “violating Article 19(1)(a) of the Constitution of India and not being saved by Article 19(2)of the Constitution of India.” Article 19(1)(a)of the Constitution of India guarantees the right to free expression, while 19(2)of the Constitution of India empowers the state to enforce “reasonable restrictions” on the exercise of this right. The judgment was hailed as a watershed moment in the legal fight against state infringement on free speech and expression.

Supreme Court’s take on Section 66A

The Supreme Court has also explored the scope of Section 66A under several broad headings, which are briefly explained below.

1. Freedom of speech and expression

  • Section 66A has been criticized on the ground that it spells a very wide net, encompassing “all information” distributed via the internet. As a result, the definition of “information” provided in the IT Act is broad, and secondly, the definition does not pertain to the content of information, but rather to the channel through which such information is transmitted.
  • Furthermore, because of its broad scope, the information, whether annoying, inconvenient, or downright offensive, does not differentiate between discussion, advocacy, or provocation. 
  • The simple discussion or even advocacy of a particular cause, no matter how unpopular it may be, is the central part of Article 19(1) (a) of the Constitution of India. Article 19(2) of the Constitution of India applies only when such debate or advocacy reaches the level of provocation.
  • The Supreme Court denied the State’s claim that the Section 66A can be backed under the headings of public order, defamation, incitement to an offence, and decency or morality, and affirmed our Constitutional System, which states that it is not available to the State to restrict Freedom of Speech to encourage general public interest.

2. Public order

  • A cursory reading of Section 66A reveals that it aims to penalize anyone who uses the internet to distribute any information that falls under the sub-clauses of Section 66A.
  • The receiver of the message is unimportant, and similarly, the information provided may be to one individual or several individuals, blurring the line between mass distribution and distribution to one person.
  • As a result, such a message may not have the possibility to disrupt the community as a whole.
  • The link between the message and any reasonable man’s action based on the message is notably missing. 
  • The Supreme Court went on to rule that there is no direct link between Section 66A and public order.

3. Vagueness

  • It is a fundamental concept of legal jurisprudence that an enactment is null and void if its restrictions are not made clear. 
  • Several important values are violated by ambiguous laws.
  • It is stressed that laws should provide a reasonable opportunity for a person of ordinary intelligence to know what is banned so that the innocent do not become stuck as a result of a lack of fair warning.
  • It was also determined that penal law is not valid for vagueness if it fails to define the criminal act with adequate clarity.
  • A layman should be able to distinguish between what is forbidden and what is permissible behaviour. Also, those who oversee the law must be aware of the nature of the crime so that unjust application of the law does not occur.
  • Thus, based on the standards established in the preceding decisions, it is clear that the phrases used in Section 66A are completely open-ended and unclear.

4. Too wide for application

  • It is a well-established concept that the law should not be used in a way that restricts “freedom of speech and expression.”
  • Section 66A spells such a wide net that nearly any viewpoint on any subject would be covered by it, as would any major opinion disagreeing with the mores of the day.
  • Such is Section 66A’s reach, and if it passes the constitutionality test, it will almost freeze free speech.

Section 66A conflicted with the Indian Penal Code, 1860

Some of the provisions of IPC which are overlapping with Section 66A are defamation, incitement to an offence, public nuisance, obscene acts and songs, misconduct in public by a drunken person. 

Furthermore, both laws imposed different punishments for ostensibly similar offences. This could have complicated the application and interpretation of the law across the country.

Several instances of arrests under Section 66A being prevalent even though it has been struck down

In October 2017, police in Muzaffarnagar, Uttar Pradesh, jailed Zakir Ali Tyagi (18-year-old boy) under Section 66A for making some comments on Facebook.

Mohd Sakir was arrested in 2013 under Section 66A. Section 66A was overturned by the Supreme Court two years later for being “draconian,” but Sakir’s case was heard in Delhi’s Tis Hazari court. He later deposited Rs. 2,000/- against the cancellation of a non-bailable warrant, even though the law under which he was booked had been deemed unconstitutional.

An even more intriguing case was unfolding in Karnataka. Dilip Shetty was charged under Section 66A and later acquitted. Six years after the trial began, the final order was issued in February 2021. As a result, the accused, despite being released on bail and eventually acquitted, were subjected to a court hearing for more than six years, at a significant personal cost to his freedom and a cost to the state in terms of judicial time and money.

Section 66A was triggered in the case of Shekhar Rahul Nikam in Nashik, Maharashtra, for “offensive messages” sent in 2010. The charges were established in 2020. The case has progressed to the level of evidence.

Even though Section 66A was repealed in March 2015, 332 cases were filed in that year. In 2016, there were 216 reported cases. This increased to 290 in 2017, 318 in 2018, 253 in 2019, and 34 in February 2020.

The question now turns to the fundamentals of enforcement agencies: what is the point of that landmark judgment if the police continue to put people in prison under unconstitutional laws?

Why is the problem still present even after the Supreme Court’s rulings?

In July 2021, the Supreme Court gave notice to the centre regarding the operation of Section 66A of the IT Act, which was struck down several years ago, and mentioned that it is disturbing that the ruling that struck down the law is still not being imposed.

The centre then appealed to state governments, urging that they take action on this and that any cases brought under Section 66A must be dropped.

The notification came during the proceeding of a petition filed by PUCL, which stated though that after 7 years of the law being repealed, as of March 2021, a total of 745 cases are still pending and active before district courts in 11 states, with the suspects being put on trial for offences under Section 66A of the IT Act.

The petition is based on information compiled by the Internet Freedom Foundation, which has been monitoring cases involving the “Zombie provisions,” which have been deemed unconstitutional but are still being used by police to arrest people.

It demonstrates that 1,307 cases were filed under the law even after the Shreya Singhal Judgment, which repealed Section 66A in March 2015.

Conclusion

Section 66A was very horrifying because for example, if someone just expressed his/her opinion on Facebook or tweet something on Twitter and if police view it as offensive under Section 66A, then police have the powers to put the person behind bars. In such a case, citizens of India would be scared to speak up and put forth their views and opinions.

Section 66A is frequently misunderstood and misapplied. In any democratic nation, freedom of speech and expression has an important role in the legal system.

The Supreme Court has rightly struck down Section 66A as unconstitutional. The Supreme Court’s decision in Shreya Singhal v. Union of India was a landmark judgment against the State’s invasion of freedom of speech and expression.

It is shocking to see that even after the Supreme Court struck down Section 66A, draconian law is still being used by law enforcement agencies. The disparity between the court’s decision and the growing number of Section 66A cases may be clarified by a political environment in which sensible discussion, disagreement, and free speech are viewed as acts of bad faith, and current rules are used as weapons to detain reporters and residents for a tweet, a slogan, or a Facebook post. The note from the centre to the states is appreciated, but the continuous review is the only way to make sure that the law is followed in letter and spirit.

References


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