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Section 66A of the IT Act

Section 66A of the IT Act

Why in news?

  • The Supreme Court has issued a notice to the Centre on the use of Section 66A of the Information Technology Act, 2000 that was scrapped several years ago.
  • The court struck down the provision as unconstitutional and a violation of free speech in 2015 in the Shreya Singhal Case.
  • The IT Act, 2000 provides for legal recognition for transactions through electronic communication, also known as e-commerce. The Act also penalizes various forms of cyber crime.

Background

  • Section 66A had been dubbed as “draconian” for it allowed the arrest of several innocent persons, igniting a public outcry for its scrapping. This had led to the Supreme Court striking it down as unconstitutional in March, 2015 in Shreya Singhal v. Union of India.
  • The SC had noted that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech, under article 19(1) (a) of the Constitution, and upsets the balance between such right and the reasonable restrictions that may be imposed on such right and the definition of offences under the provision was open-ended and undefined.
  • The court also said that the provision used expressions “completely open-ended and undefined” and every expression used was “nebulous” in meaning.
  • What may be offensive to one may not be offensive to another.
  • What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.
  • Even the expression ‘persistently’ is completely imprecise.

About Section 66A

  • It empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc.
  • It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.

Issues with Section 66A

  • Based on Undefined Actions:
    • The court observed that the weakness of Section 66A lay in the fact that it had created an offence on the basis of undefined actions: such as causing “inconvenience, danger, obstruction and insult”, which do not fall among the exceptions granted under Article 19 of the Constitution, which guarantees the freedom of speech.                        Section 66A of the IT Act
  • Subjective Nature:
    • The court also observed that the challenge was to identify where to draw the line. Traditionally, it has been drawn at incitement while terms like obstruction and insult remain subjective.
  • No Procedural Safeguards:
    • In addition, the court had noted that Section 66A did not have procedural safeguards like other sections of the law with similar aims, such as the need to obtain the concurrence of the Centre before action can be taken.                Section 66A of the IT Act
    • Local authorities could proceed autonomously, literally on the whim of their political masters.
    • The Court did not strike down two other provisions- sections 69A and 79 of the IT Act – and said that they can remain enforced with certain restrictions.
    • Section 69A provides power to issue directions to block public access of any information through any computer resource and Sec 79 provides for exemption from liability of intermediary in certain cases.
  • Against the Fundamental Rights:
    • Section 66A was contrary to both Articles 19 (free speech) and 21 (right to life) of the Constitution.
    • Right to know is the species of the right to speech and expression provided by the Article 19(1) (a) of the constitution of India.                        Section 66A of the IT Act

Conclusion

  • Every law is vulnerable to exploitation.
  • Mere prospect of abuse should not have been the ground for removing an essential provision in totality because almost every other legal provision will then be liable to be removed by the same logic.
  • Seeing as the right to free speech in consonance with right to protect one’s dignity and reputation is a basic right, this case might have been an appropriate opportunity for the Court to propose a workable distinction between protecting rights and restricting them.        Section 66A of the IT Act

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