Section 66A of IT Act: Shreya Singhal Case

The Supreme Court recently issued a notice to the Centre on the use of Section 66A of the IT Act that was scrapped several years ago and said that it is shocking that the judgment striking down the law has not been implemented even now.

• The notice came during the hearing of a plea filed by PUCL that pointed out that even after 7 years of the law being struck down, as of March 2021, a total of 745 cases are still pending and active before the district courts in 11 states, wherein the accused persons are being prosecuted for offences under Section 66A of the IT Act.
• The plea is based on data collated by the Internet Freedom Foundation, which has been tracking cases under the "Zombie provisions" which have been declared invalid but are still being used by police to prosecute people.
• It shows that even after March 2015, after the Shreya Singhal Judgment which struck down Section 66A, 1,307 cases were registered under the law.

What is section 66A of IT Act, 2000 ?

Punishment for sending offensive messages through communication service, etc.–Any person who sends, by means of a computer resource or a communication device,–

1. any information that is grossly offensive or has menacing character; or
2. 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;
3. 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

Reasons to struck down Section 66A

• rights under Articles 14 and 21 are breached inasmuch there is no intelligible differentia between those who use the internet and those who by words spoken or written use other mediums of communication
• Section 66A infringes the fundamental right to free speech and expression and is not saved by any of the eight subjects covered in Article 19(2), the causing of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will are all outside the purview of Article 19(2)
• None of the aforesaid terms are even attempted to be defined and cannot be defined, the result being that innocent persons are roped in as well as those who are not.
• Right of viewers is infringed as such chilling effect would not give them the benefit of many shades of grey in terms of various points of view that could be viewed over the internet.

Shreya Singhal Judgement’s Order

• Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2).
• Section 69A and the Information Technology (Procedure & Safeguards for Blocking for Access of Information by Public) Rules 2009 are constitutionally valid.
• Section 118(d) of the Kerala Police Act is struck down being violative of Article 19(1)(a) and not saved by Article 19(2).

Why we need a regulatory mechanism for online media?

• 66A has proved to be a useful remedy, particularly in situations of sensitive nature concerning religious and communal sentiment; for instance the episode of the exodus of north-east students from Bangalore where the Police Authorities were forced to take recourse to S.66A to avoid spreading of rumours circulated to incite violence against persons of the north eastern community.
• 66A 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.
• A multi-racial, multi-cultural country like India, where free speech is susceptible to misuse on sensitive grounds of communal, political and religious bias, is not prepared for such an absolute and unrestrained right.

Creating a balance between granting a right and preventing its misuse

• It would be have been more desirable to establish elaborate thresholds for the Court to be able to determine the parameters within which to review the liberty to exercise one’s right to free speech; for instance, its intent and context, severity or range of its impact, its probability of creating public unrest, insult, etc.
• The Judiciary being an independent body, free of political or commercial influences can ideally prescribe an extensive mechanism that effectively balances the right to free speech while also safeguarding the right to protect one’s privacy and reputation by appropriately countering harmful content online.
• The intent and object behind the S.66A and the constant need for monitoring the harmful effects of unrestricted free speech should have been borne in mind by the Bench while also ensuring that exaggerated and frivolous allegations with vested interests are restrained.
• Considering the promptness and range with which information goes viral in today’s times, the Court should have taken this case as an opportunity to answer the question as to which categories and forms of freedom of expression should be reasonably restricted.

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.