Why punishment under section 66A of IT Act 2000 is unconstitutional?

The Preamble of our country speaks of Liberty. This liberty is for all the people of India to freely express their thoughts. Article 19 (1) (a) of the Constitution of India is guardian of all the citizen for their right of speech and expression. Every person has the right to speak his point and express his opinion. This right plays a very important role in public opinion. It includes the freedom of communication and Right to propagate or publish one’s views held the Apex Court in S. Rangarajan Case [1989] 2 SCC 574. In Ramlila Maidan Incident re [2012] 5 SCC 1, the Supreme Court held that the freedom of speech and expression is regarded as the first condition of Liberty. However this is not an absolute right. Article 19 (2) provides reasonable restrictions over Article 19 (1) (a) allowing the state to impose restrictions in the matters of Sovereignty and Integrity of India, security of state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation or incitement to an offence. Obviously the court has to decide whether the restrictions to be imposed are reasonable or not. The Apex Court in Shreya Singhal v. Union of India had struck down section 66A of Information Technology Act 2000 on  24 March 2015. The argument that was raised is that the section abstain free speech and expression.

What is section 66A of the Information Technology Act 2000?

66A. 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;
(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,
(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, images, audio, video and any other electronic record, which may be transmitted with the message.

What is the reason behind unconstitutionality of section 66A?

What makes a democracy more beautiful is the presence of impartial judiciary working for the betterment of its nation. That’s what has been proved right for our nation this time as the apex court of India again by its historic decision strengthens the freedom of speech and expression by striking down the Section 66A of the Information and technology Act, 2000 which allows police to arrest people for posting “offensive content” on the internet. The term “offensive” is too vague that anyone can interpret the way they want. It has no exact meaning to it. The main argument for unconstitutionality of this section is majorly curbing the fundamental right. Also this section is very wide and vague. This section includes any information which is sent which is considered as offensive. It is not only hard to determine what is offensive, it is harder to determine the nature of the section which directly violates the fundamental rights enshrined under the Constitution of India. The Supreme Court of India found section 66A of The Information Technology Act, 2000 and arbitrary as well. Another problem was that section 66A was a cognizable offence, i.e. whoever posted content which can be considered as ‘offensive’ or ‘menacing’ could be arrested by the Police without a warrant, making this the most crucial drawback to this vaguely drafted provision. What essentially made this provision prone to inappropriate. Under this all the discretion is left over the police authorities to decide what is offensive and what is not. The court noted that governments come and go but section 66A will remain forever and refused to consider the Centre’s assurance that the law in question will not be abused. The court however, said there was no need to strike down two other provisions of the IT Act that provide blocking of sites.

What are the after effects?

Its been two years after this section has been held unconstitutional. The reason why this is a topic of discussion is the very important nature of the section which is prone to abuse. The judgment also considered the validity of other provisions of the IT Act namely Section 69A and 79 along with the Rules made in them. Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 authorise 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..

Section 69A clearly states that : 69A Power to issue directions for blocking for public access of any information through any computer resource. –

(1) Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.
Further, S.79 has been ‘read down’ to mean that intermediaries shall be required to block the 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. The Court has founded its decision to revoke section 66A appropriate as it cause an obstruction to free speech. The dichotomy is that by upholding S.69A, this judgment continues to provide political/Government authorities with an avenue to “restrict free speech” by issuing an order on vague grounds to filter any published content if they do not find the same to be agreeable.

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