SECTION 66 A OF INFORMATION TECHNOLOGY ACT 2000: ITS CASCADING EFFECT EVEN AFTER REPEALING

 

The Section 66A of Information Technology Act 2000 is no longer in statute book, after it was struck down by hon’ble Supreme Court in a case captioned as Shreya Singhal and Ors. Vs Union of India AIR 2015 SC 1523. However, it is indeed, perplexing, that complaints are lodged on the basis of the repealed provisions, cases are registered and even actions initiated. The Supreme Court has expressed its shock and anguish on the continued use (misuse) of repealed provision.  It is to be noted that the Section 66 A of the Information Technology Act of 2000 was not part of the original IT Act 2000, but came into force by virtue of an Amendment Act of 2009 with effect from 27.10.2009.

The issue was raised recently by PUCL (People’s Union of Civil Liberties) in a writ petition before hon’ble Supreme Court raising the continued use/misuse of repealed section of Section 66A of Information technology Act 2000, which restricted free expression online, continued to survive and occasionally found a place in the FIRs registered by the police in complete contravention of the Supreme Court judgment in the Shreya Singhal case. It turned out that police authorities some time failed to take note of the foot note where the IT Act 2000, clearly shows the provision as repealed. In cavalier manner , the registration of cases is perplexing.

The provision Section 66A was found contrary to both Articles 19 (free speech) and 21 (right to life) of the Constitution of India, hence , repealed. The entire provision was thus struck down by the court. Therefore, it is obvious that the above judgment has rendered Section 66A extinct and continued misuse of it is unfortunate.

It is noteworthy that the judgment and final order in the Shreya Singhal  case (Supra) had rendered all investigations, prosecutions, and convictions based on Section 66-A IT Act illegal, and it forestalled any use of Section 66-A IT Act after the decision was rendered.

The petitioner, PUCL (People’s Union for Civil Liberties) informed the Supreme Court that 229 cases were pending in 11 states when law was scrapped and in the next seven (7) years, 1307 cases were added. Section 66 A authorizes police, if the contents in social media is found “offensive” or menacing. It was contended on behalf of government that though the footnote of the Act clearly shows that section 66 A as struck down, but, as the same is still mentioned in the statute book and the police officials while failing to note the footnote may be registering the cases u/s 66A. It may be noted that it is a matter of record that in the year 2019 the Supreme Court had asked the chief secretary and Director General of States and UTs to publicize the judgment, it is thus shocking that the provision is still in use denying citizen’s right of free speech.  

 

The repealed Section 66-A of IT Act may be perused for analysis:

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

(a) any information that is grossly offensive or has menacing character; or

(b) 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; or

(c) 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.

Explanation.- For the purposes of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message."

FLAWS IN SECTIONS 66 A:

Section 66A of the IT Act 2000 was made a cognizable offence, i.e. alleged offensive posts can besides being considered ‘offensive’ or ‘menacing’, the police was empowered to arrest without a warrant, The discretion of police authorities was often criticized.

Whereas, the Supreme Court has upheld the constitutional validity of the Power given to the government under Section.69 A to block website content in certain circumstances and also Section 79 has been ‘read down’ to mean that intermediaries shall be required to block content only in accordance with a Court Order or a notification issued to this effect by the Government or its agency. While the Supreme Court has undone the need for intermediaries to undertake self-policing and self-determination of the nature of content, it has allowed the government to direct intermediaries to disable information deemed “harmful/ inciteful, etc.” on their websites/server space. In this context, however, Information Technology Rules 2018 has prescribed guidelines to the intermediaries also.

The instances, where religious and communal harmony have been disrupted by publishing/transmitting inflammatory content in the form of texts, mails, posts, etc. has the potential to interfere with the peace and tranquility and could be construed as “grossly offensive”. The construing of section 66 A of IT Act 2000 as beyond the scope of Article 19(2) of constitution of India is however debatable.

Section 66 A, though,  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. No doubt Section 66 A could be used arbitrarily, but by doing away with the provision on account of its potential misuse, the Supreme Court has also discarded a remedial mechanism available to the common man to counter actual cyber offences. The hon’ble Supreme Court has taken a considerate view after analyzing the pros and cons and analyzing it further on the touchstone of law and freedom of speech.

EFFECT OF THIS JUDGMENT ON OTHER PROVISIONS OF THE IT ACT:

Apart from Section 66 A, the Section 69 A and Section 79 along with the Rules made thereunder may be considered together. The  Section 69 A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 authorised the Central Government to block or order an intermediary (such as Facebook, YouTube or any internet/ telecom service provider) to block access by the public of any content generated, transmitted, stored, etc. in any computer resource, if it is satisfied that such content is likely to create communal disturbance, social disorder or affect India's defence and sovereignty, etc.

The Indian Constitution, more particularly, Article 19 deals with freedom of speech and expression, but reasonable exception or restriction is carved out. The India is a vast land mass with diverse people and they are multi-racial, multi-cultural. The free speech may be susceptible to misuse on sensitive grounds such as communal, political and religious bias and even otherwise an absolute and unfettered right may be prone to misuse, the ambit of free speech or boundary, thus, shall be necessary.

The repeal of Section 66 A should not be construed, as if, now there is unrestricted right to free speech. It may not be lost sight of that there are corresponding provisions of the Indian Penal Code (IPC) and that shall continue to apply, should, any violation or motivated insinuation in the garb of free speech is resorted to in social media online. In this regard Section 295 A of Indian Penal Code, may be refereed to, when, Intentionally, aspersion is cast on Religion Or Religious Beliefs. Similarly, Section 153- A of Indian Penal Code contains punitive measures against Promoting Enmity Between Groups On Grounds Of Religion, Race. A private complaint for causing defamation could be filed u/s of 499 of Indian Penal Code. As regards statements causing and perpetuating Public Mischief, the measures are prescribed under section 505 of Indian Penal Code, yet another instance may be, insulting the Modesty of a Woman and the provision in this regard is contained u/s 509 of Indian Penal Code. The law of sedition is codified under sedition 124-A of Indian penal Code.

In this backdrop, Section 66 A of IT Act 2000 had empowered the police authorities to ascertain by themselves, the severity of the material posted and thereafter arrest the person. As now the provision is struck off and is repealed, the flip side of this may be the impediments caused to recipients of emails or messages, who may have to take recourse to the provisions of Indian Penal Code, which is relatively speaking is somewhat cumbersome and prompt action may not be readily available. Approaching courts, vide complaint under the provisions of Indian Penal Code is relatively difficult.

The main criticism against 66A was that its terminology being overly ambiguous and broad made it susceptible to misuse. This was a malady that the Court deemed fit to remediate by resorting to the “lessor adopted” approach of abolishing the provision altogether.

Instead of removing a protective provision in its entirety, an endeavor ought to have been made by the Judiciary to give proper meaning and scope to the ambiguous terms within it, so as to bring them in the purview of Article 19 (2). The Bench could have considered the possibility of establishing specific tests to determine what would constitute an offence under S.66A along with prescribing thresholds that minimise the possibility of arbitrary application of such provision while also allowing for the effective operation of reasonable restrictions given by the Constitution.

What may sound ironical is that, though, somewhat alternate provisions relating to online offence is contained in Sections 499, 124A, 295A and 506 of Indian Penal Code existed, however, one cannot be oblivious to the fact that even these provisions were also being deprecated for alleged misuse, before the insertion of Section 66 A of IT Act 2000. The provisions as contained in sections 124 A, 295 A and 506 of IPC and such other analogous sections are continued to be criticized, therefore, it is not as if, after doing away with section 66 A of IT Act 2000, the chorus against the alleged misuse does not existed any more.

Again, undoubtedly, there are instances, where law of sedition is misused and likely ordeal could be punishing and out of proportion. There always has been intense debate as regards the case falling within the contour of sedition or not? Conversely, there is no doubt that sovereignty of a nation is beyond any compromise. The free speech cannot be censured in the garb of alleged sedition or such other offences, but in the touchstone of Article 19 of Constitution of India and the fetter attached therewith, there cannot be unbridled right to criticize. If there is a right, the responsibility is co-extensive. The one cannot precede other and therefore reasonable restrictions are there and article 19 of Constitution of India, is not plenary, it invokes certain fetter and for good measure.

In a welfare society and in a vibrant democracy like India, the cases as regards freedom of expression or breach of it, should only be instituted, when the broad contour of the provisions are attracted and not in a matter of course. Section 295-A of Indian Penal Code, for instance are often invoked for alleged statements insulting religious beliefs. Section 500 of Indian Penal Code covers criminal defamation and is currently under judicial scanner with the Supreme Court. The ‘high and mighty’ invokes it sometime to silence adversity. Though, earlier, the apex court had the occasion to examine the constitutionality of Section 499 and 500 of Indian Penal Code, vis a vis Article 19(2) of Constitution of India. The issue however remained a backburner. No doubt, every law is prone to misuse and pruning the law itself is not the solution. Abrogation of a provision, vulnerable to misuse in itself cannot guarantee fair enforcement of the due process of law.

The Supreme Court in Namit Sharma vs Union of India (2013)1SCC745) observed as follows:

“The Court should examine the provisions of the statute in light of the provisions of the Constitution (e.g. Part III), regardless of, how it is actually administered or is capable of being administered. In this regard, the Court may consider certain factors such as the fact that the possibility of abuse of a statute does not impart to it any element of invalidity”.

The Supreme Court while recently entertaining a set of PILs that challenged the constitutional validity of Sections 66 A, Section  69 and Section 80 of the IT Act 2000 observed that

"Instances of abuse of law would be there. Merely because the ingredients of an offence are covered under an existing law, that cannot be a ground for quashing it,"

A bench of Justices J. Chelameshwar and S.A. Bobde on December 11, 2014 opined that

“laws were "prone to abuse" and cited the example of Section 498 A of the Indian Penal Code, which was brought in to safeguard the interests of married women but has often led to complaints of misuse "

A similar view was taken by the Law Commission of India in its 243^rd Report 2012 on the extensive misuse of Section 498-A of the IPC wherein it was observed as under:

‘That Section 498-A has been misused in many instances admits of no doubt. S.498A has a lofty social purpose and it should remain on the Statute book to intervene whenever the occasion arises. Its object and purpose cannot be stultified by overemphasizing its potentiality for abuse or misuse. Misuse by itself cannot be a ground to repeal it or to take away its teeth wholesale. The re-evaluation of Section 498-A merely on the ground of abuse is not warranted…......While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s.498A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase. A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution – legislative or otherwise, while maintaining the efficacy of law.”

Consequently, instead of repealing this i.e the , frequently misused provision, the Supreme Court in the judgment of Arnesh Kumar Vs State of Bihar & Ors (2014)8SCC 273, issued directions to be followed by the police authorities and Magistrates to prevent casual arrests of the accused under 498-A of Indian Penal Code.

As was pointed out by the Additional Solicitor General in the above case, while justifying the necessity to retain such a provision:  

“If the medicine is bitter, then we can have sugar after it instead of throwing the medicine. People have to take the medicine as it is for their benefit".

The Judiciary may have struck down Section 66 A , IT Act 2000, alright, however, the malaise is that the flaw actually lies in the laws pertaining to arrest in India which continues to remain ambiguous. It was the discretion of the Police that was misused in most incidents, who due to lack of guiding principles, failed to distinguish between harmless free speech and a genuinely offensive statement. The safeguard against arbitrary and unwarranted arrests lies in sensitizing the Police on the procedure to be observed while exercising their powers to arrest in cases of this nature. In the case of Section 66A, the irony is that after repealing of the section, FIR continues to be registered under that provision is a glaring testimony and when Supreme Court has noted that and wanted strict implementation of that, then efforts are on for sensitizing police. Though, there was advisory and guidelines to channelize the process of dealing with complaints under S.66A through a higher official to appropriately determine if ingredients of the offence have been made out, the Court found the Section to be vulnerable to arbitrary application. Now, when it is no more in the statute book, its misuse is unthinkable.

A Statute cannot be expected to anticipate every eventuality or foresee as to whether or not a provision can be subjected to misuse and arbitrary discretion of Executive authorities. But what the Court can do is to establish a framework to harmoniously permit free speech while ensuring it is not abused.

CONCLUSION:

Every law is vulnerable to exploitation or its prospective or actual misuse. The law is enacted by the legislature which is their domain. Interpreting law and to enforce the rule of law is the responsibility of Courts, Supreme Court being the apex court shall have the final say in this regard. The constitution contains the doctrine of governance and that accords separation of power of every organ of state, based on Montesquieu’s principle of separation of power.   Mere prospect of abuse should not be a ground for removing an essential provision in totality, because almost every other legal provision will then be liable to be removed by the same yardstick. The right to free speech in consonance with right to protect one’s dignity and reputation is a basic right. However, The court is there to strike a balance and to see that no transgression of authorities is made. The repealed provision i.e Section 66 A of IT Act 2000, however, should not be used any further. The police needs to be sensitized and the government appears to have issued the directive to that effect. It is hoped, that die is cast in this regard.

 

                                                            ANIL K KHAWARE

                                                            Founder and Sr Associate

                                                            Scietylawandjustice.com