This article is written by Aastha Verma, pursuing B.A L.L.B from Kalinga University, Raipur, Chhattisgarh. The article describes Section 66A of the IT Act and how police have arrested people even after Section 66A was held unconstitutional.     

Introduction 

Section 66A of the Information Technology Act, 2000 provides punishment for sending offensive messages through communication devices. These messages may be any information created, transmitted, or received on the computer system or device including attachments in form of texts, images, audio, or any other electronic record which may be transmitted with the messages. Freedom of speech and expression is one of the most important fundamental rights guaranteed under Article 19 of the Indian Constitution. The Supreme Court of India has given the importance of freedom of speech and expression in its judgment given in the case of Shreya Singhal v. Union of India (2015). The gap between the court’s judgment and Section 66A is explained by a political climate in which free speech, dissent, and legitimate criticism are seen to be exercised in bad faith.  

Overview of Section 66A of IT Act, 2000

The Information Technology Act, 2000 was enacted with a view to give legal recognition to electronic records and to prevent cybercrimes, and ensure security practices. Due to the recent increase in cybercrime, concerns of data security have assumed greater importance. Therefore, the Information Technology (Amendment) Act, 2008 was passed and has been made effective from 27th October 2009. A review of the amendment indicates that there are several provisions relating to data protection and privacy to curb terrorism using an electronic and digital medium that has been introduced in the Amendment Act.  

Section 66A of the Information Technology Act, 2000 was also inserted through the amendment made in 2008 which has changed the Act to regulate the various type of internet crimes including the sending of offensive messages through the internet, digital communication, video voyeurism, leakage of confidential data, cyber terrorism, etc. This Section empowers police to make arrests in terms of their subjective discretion but it could become offensive for the purpose of causing annoyance, inconvenience, etc.  

So, basically, Section 66A of the Act provides a provision prescribing punishment. Whoever commits the crime shall be liable for imprisonment for a term that may extend to three years and with a fine. The explanation provides the definition of the term electronic mail and electronic mail message means a message or information created or transmitted on a computer including attachment in text, image, etc. but the provision does not define any term which is used in provisions for creating crimes. 

Retrospective analysis of Section 66A

Section 66A of the Act was created to regulate a group of offenses but unfortunately, this Section restricts freedom of speech and expression on the eight grounds. They are the security of the State, public order, decency, morality, speech in relation to contempt of court, defamation, incitement to offense, and friendly relation with foreign states. After the internet was made available for expressing personal views, the right to speech and expression has received a tremendous level of understanding from the judiciary as well as the legislature. The right to speech and expression on the internet extends to expressing one’s own opinion through emails and messages. In the case of Manubhai Shah v. Life insurance Corp of India (1980), the court held that the right to speech and expression on the internet also includes the right to reply and includes the right to reply to criticism within the limits enshrined under Article 19(1) of the Indian Constitution. The introduction of the Information Technology Act, 2000 prohibited the publishing, transmitting, or causing for publishing any information which is obscene. With the introduction of the Amended Act in 2008, the scope of the provisions was extended and restrictions and punishment are given under the Section. Section 66A was framed to include all sorts of speeches that may be brought within the purview of law from time to time depending upon the situation. Because of this reason, the Supreme Court of India declared Section 66A unconstitutional, which has been discussed later in the article.

Is Section 66A really needed

Cyberstalking has been recognized under Section 354 of the Indian Penal Code, 1860. Though this section is gender-biased, men or people from the LGBTQ community can avail the protection under Section 507 of the IPC depending upon the nature of the offense. Though Section 66A is gender-neutral and covers anti-stalking laws, the usage of speech and communication for hacking is not explicitly mentioned in any of the provisions. The police authority is taking advantage of this and is arresting people without giving any specific reason which is contrary to Articles 19 and 21 of the Indian Constitution.        

Landmark judgment 

In the case of Shreya Singhal v. Union of India (2015), the petitioner contended that Section 66A of IT Act, 2000 provides a provision that does not define certain terms and is prone to be subjected to extreme vagueness in defining what constitutes annoying speech. This Section has also given vast power in the hands of police to enjoy their freedom of speech without laying down specific reasons. 

In this landmark judgment, the court observed that provision under Section 66A of the Act is vague and violated the freedom of speech and expression under Article 19(1) of the Indian Constitution. Also, it was not protected by Article 19(2) that empowers the State to impose reasonable restrictions on freedom of speech and expression. The court held that Section 66A is capable of limiting all forms of internet communication as it makes no distinction between mere discussion or advocacy of a particular point of view which leads to a causal connection with public disorder and the security of the State. By concluding the case the Supreme Court declared Section 66A of the Act as unconstitutional. 

The Shreya Singhal judgment was highly appreciated as it corrects a major fault in the Information Technology law which regulates people’s activity on the internet. The Supreme Court’s decision has given relief to thousands of internet users who considered it as a major victory to exercise their fundamental right of freedom of speech and expression. It mitigates the problem of unwarranted arrest by the police due to political pressure and also facilitates a fearless communication of ideas on internet platforms. In this case, the Supreme Court performed the role of guardian to protect the fundamental rights of the citizens. 

Parliament cannot enact any law which is against the Constitution and if any Act is against the Constitution then the court can examine its validity and declare it unconstitutional if it is violating the fundamental rights of the citizens. This power is given to the Supreme Court and High Courts to strengthen the rule of law in the country. 

After-effects of the judgment 

Section 66A of the Information Technology Act, 2000 was declared unconstitutional in 2015. It has been many years since this Section was struck down by the Supreme court but police are still arresting people under this provision. Yet this draconian piece of dead law has had an astonishing afterlife in police stations across the country, leading to persecution of several citizens for online posts. In the present era when the information reaches within a second, the Indian police still seem to behave with no information that Section 66A is illegal and they are arresting people under the non-existing Section. Some of the cases are below –

1. In March 2017, an 18-year-old boy named Zakir Ali Tyagi from Muzaffarpur, Uttar Pradesh was arrested under Section 66A of the Act for posting a comment on UP Chief Minister Yogi Adityanath. 
2. A chemistry professor of Jadavpur University was arrested under Section 66A of the Act in 2012. The trial is still going on and charges under all other provisions are dropped out.
3. In October 2018, Veeramreddy was arrested under Section 66A of the Act in Andhra Pradesh. 
4. In May 2019, BJP worker Priyanka Sharma was arrested and remanded to judicial custody. Section 66A of the Act was also imposed on her with certain other charges. The Supreme Court intervened in the matter and ensured her immediate release.    
5. Recently, the Supreme Court expressed displeasure when the Public Union of Civil Liberties (PUCL) informed it through Public Interest Litigation (PIL) that the police were still registering cases under Section 66A of the IT Act. The Petitioner said that several people are facing trial in different district courts. The Supreme Court issued a notice to the government and asked to reply.  The center has written to state governments asking them to pass on the memo to the police force and withdraw all cases that have been filed under Section 66A of the Act. The police have arrested several people even after it was scrapped. This is an open insult to the authority of the Supreme Court. As per Article 141 of the Constitution, the government is bound to implement the decision of the court. The government should bring the judgment given by the Supreme Court to the knowledge of all law enforcement agencies that deal with the IT Act so that people don’t suffer. The Supreme Court has directed all states to publicize the Shreya Singhal judgment. Despite the direction given by the Apex Court no effective action has been taken to implement the judgment of the court by the police. States need to spread information among all police officers and notify them about the contempt proceedings if they disobey the rule of law.  

Disturbed by the rampant and continued use of struck-down provision by police authorities, the Supreme Court directed to send the officials to jail and ordered them to send a copy of the judgment to all the district courts. This matter is of serious concern that no official communication is issued by the central government and circulated to all the police stations within the country, because of which the citizens of India are facing problems and their fundamental rights are being violated.

The measures that need to be adopted

• The Ministry of Home Affairs must issue necessary advisories with immediate effect to all states/ UTs and give them to all the police stations. 
• Publicity of advisory should be done so that the public at large will be able to know about the steps taken by the government.
• Special actions should be taken against the police personnel and the same should be publicized so that other police officers will be aware of the same.
• Both central and state governments should take all the necessary steps to ensure that the public at large should be aware of their fundamental rights.           

Conclusion

Section 66A was introduced with a view of protecting the rights of the citizens, but this Section has given vast power to the police authority and proved to be vague by the Supreme Court. The government can easily circulate the notice in all police stations if they are serious about following the rule of law. There is an urgent need to circulate the judgment of the Court to the police and all other law enforcement agencies to keep them updated with the changes in penal provisions. Police officers need periodical legal training which will help them to be updated with the legal knowledge and be made sensitive about human rights and dignity. The courts have to lay down some guidelines to police about the court’s ruling and law. The pending criminal cases under Section 66A of the Act should be quashed and some reasonable compensation shall be given to the aggrieved person. Also, courts, as well as Parliament, should think to enact better laws from the positive aspect of Section 66A. The aim of justice may be achieved when the effect of laws is tested from all aspects. The words which are not specifically explained in Section 66A should clear their meaning and with the positive effect, India can have a better provision for preventing misuse of freedom of speech and expression. 

References 

1. https://poseidon01.ssrn.com/delivery.php?ID=925001095006088084086120030125100031105056038064034051074000124118100084026074098029063026017056028045033098016091115092068075061007010028093008080027084070073029029073062026114114082069105104023100108066095092025075004015094094115069124117077092105&EXT=pdf&INDEX=TRUE
2. https://indianexpress.com/article/opinion/editorials/section-66a-information-technology-act-unconstitutional-supreme-court-7406746/
3. All you need to know about Section 66A of the IT Act – The Hindu
4. https://www.factchecker.in/explained/supreme-court-section-66a-it-act-cyber-crime-pucl-shreya-singhal-759657

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