[Polity] Section 66A of IT Act Scraped by Supreme Court

What is Section 66A of IT Act ?

Section 66A prescribes the punishment for sending "offensive' messages through computers or any other communication device such as a mobile phone or a tablet, and a conviction can fetch a maximum of three years in jail.

According to the act, any person who sends, by means of a computer resource or a communication device -
  •  any information that is grossly offensive or has menacing character; or
  •  any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
  •  any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.
- The section had given police powers to arrest anyone for sending offensive messages from mobiles and computers with up to 3 years in jail.

- As the court itself has pointed out, some of the terms are vague and are prone to misuse. 

What does the Information Technology Act, 2000 provide for?
The Information Technology (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. The Act was amended in 2008 to insert a new section, Section 66A which was said to address cases of cyber crime with the advent of technology and the internet.

When was the first PIL filed? 
The first PIL on the issue was filed in 2012 by a law student Shreya Singhal, who sought amendment in Section 66A of the Act, after two girls -- Shaheen Dhada and Rinu Shrinivasan -- were arrested in Palghar in Thane district as one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray's death and the other 'liked' it.

Some prominent cases where 66A has been used 
  • JU professor Ambikesh Mahapatra was arrested by West Bengal police for sharing cartoons on Mamata Banerjee. Subsequently HC asked the state government to give 50 thousand rupees compensation to Mahapatra. 
  • Activist Aseem Trivedi was arrested for drawing cartoons which were critical of the Parliament and constitution.  Businessman Ravi Srinivasan was booked for allegedly tweeting offesive remarks against son of a prominent politician. 
What has been Court's view so far? 
  • The apex court had on May 16, 2013, come out with an advisory that a person, accused of posting objectionable comments on social networking sites, cannot be arrested without police getting permission from senior officers like IG or DCP.
  • The direction had come in the wake of numerous complaints of harassment and arrests, sparking public outrage. It had, however, refused to pass an interim order for a blanket ban on the arrest of such persons across the country.
  • The court asked centre in December last year to clarify stand on the provisions that ensues arrest or be ready for such laws to be stayed. 
  • At a later date, Apex Court said the Information Technology Act provision, which gives power to arrest a person for posting objectionable comments on social websites, cannot be quashed on the ground that it does not have 'mens rea' (motive or knowledge of wrongdoing) as one of the pre-requisites to constitute an offence.
  • The court's observation came when a lawyer said Section 66A of the IT Act deserves to be quashed as it creates a situation where a person can be arrested and jailed despite the fact that he neither intended nor had the knowledge that he was committing an offence.

  • " The Supreme Court delivered a judgement striking down Section 66 A of the Information Technology Act, 2000. This was in response to a PIL that challenged the constitutionality of this provision. In light of this, we present a background to Section 66 A and the recent developments leading up to its challenge before the Court."
  • "According to news reports, the Supreme Court in February, 2015 had stated that the constitutional validity of the provision would be tested, in relation to the PIL before it. The government argued that they were open to amend/change the provision as the intention was not to suppress freedom of speech and expression, but only deal with cyber crime.
  • "The issues being examined by the Court relate to the powers of the police to decide what is abusive, causes annoyance, etc,. instead of the examination of the offence by the judiciary . This is pertinent because this offence is a cognizable one, attracting a penalty of at least three years imprisonment. The law is also said to be ambiguous on the issue of what would constitute information that is “grossly offensive,” as no guidelines have been provided for the same. This lack of clarity could lead to increased litigation.

A big victory for people, says original petitioner after SC strikes down Section 66A :

  • "Hailing the Supreme Court's decision to strike down the controversial Section 66A of the IT Act, Shreya Singhal, one of the petitioners in the case,  said that no one would fear expressing their opinions online anymore.
  • "Under Section 66A, you cannot be jailed anymore because the section stands invalid. I am not advocating the defamation of someone, but there are other provisions in the IPC, that ensure that hate speeches are dealt with. However, there is no blanket provision that will curtail your freedom of speech. No one should fear putting something up online anymore," said Singhal.
  • "There were two tests that were put to the Section 66A –clear and present danger and the probability of inciting hatred. Section 66A has failed those tests because the posts that people were jailed for did not incite public hatred or disrupted law and order," she added. Meanwhile, advocate Manali Singhal, Shreya's mother, opined that the consequences of the apex court's decision will be positive.
  • "We're very happy. The consequences are going to be very positive. Now people are not going to be scared to exchange and put their views on internet freely," she said. Earlier in the day, the Supreme Court struck down the IT Act Section 66A, terming it 'unconstitutional'. According to reports, the apex court ruled that the section falls outside Article 19(2), which relates to Freedom of Speech, and thus has to be struck down in its entirety.

The judgement is not available in the public domain yet. It remains to be seen on what the reasoning of the Supreme Court was, in its  decision to strike down Section 66A.


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