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Section 66A: The Controversial Mechanism

Laws alone cannot secure freedom of expression; in order that every man may present his views without penalty, there must be a spirit of tolerance in the entire population.– Albert Einstein.

Introduction
On 24th March, 2015, the Hon'ble Supreme Court[1] delivered judgment[2] striking down section 66A of the Information Technology Act, 2000 (IT Act). This was in response to a Public Interest Litigation (PIL) that challenged the constitutionality of this provision.[3]

The Court held that the provision of section 66A of the IT Act is derogative to the Article 19(1)(a) and as such it is an arbitrary provision which breaches the right of citizen to have freedom of speech and expression of their views on internet. As such the provision concerned is constitutionally invalid and as such struck down in its entirety.[4]

There are numerous cases where people were booked under 66A even after its deletion. So, how could people have been booked under an overruled statute? Was the use of Section 66A by the police an outcome of ignorance of the law, or was the police knowingly challenging the legitimacy of the Supreme Court ruling that overturned it? The answer is a bit of both, according to a paper, Section 66A and other legal zombies, written by the lawyers Abhinav Sekhri and Apar Gupta.

The paper demonstrate how Section 66-A continues to cause second order harms to individuals exercising their freedom of speech.[5] Disturbed by the rampant and continued use of the struck down provision by police all over the country, the Supreme Court in January 2019 observed that it would send the erring officials to jail. The Bench led by Justice Rohinton Nariman also directed that a copy of the judgment be sent to all district courts.[6]

Background
Section 66A was not in the Act as originally enacted, but it came into force by virtue of an Information Technology (Amendment) Act of 2008.[7] The reason behind the insertion of section 66A according to the Amendment Bill[8] was:
A rapid increase in the use of computer and internet has given rise to new forms of crimes like publishing sexually explicit materials in electronic form, video voyeurism, breach of confidentiality and leakage of data by intermediary, e-commerce frauds like personation commonly known as Phishing, identity theft and offensive messages through communication services. So, penal provisions are required to be included in the Information Technology Act, the Indian Penal code, the Indian Evidence Act and the Code of Criminal Procedure to prevent such crimes.[9]

Also, the Notes On Clauses in the Bill stated that the section 66A was inserted,…with a view to make certain more computer related wrong actions punishable and enhance the penalty. [10]

Section 66A criminalized the sending of offensive messages through a computer or other communication devices. Under this provision, any person who by means of a computer or communication device sends any information that is:
  1. grossly offensive;
  2. false and meant for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will; meant to deceive or mislead the recipient about the origin of such messages, etc., shall be punishable with imprisonment up to three years and with fine.

The Deletion
The first PIL on the issue was filed in 2012 by 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 after one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray's death and the other ‘liked' it.

In the wake of numerous complaints of harassment and arrests, the apex court had on 16th May, 2013 issued 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.[11] Even the Department of Electronics and Information Technology had issued a similar advisory/ circular to all the Chief Secretaries and Director General of Police of all States and Union Territories.[12]

After the Court reserved it's judgment in the matter on 26th February, 2015, another controversial case hogged the limelight for alleged misuse of section 66A in which a boy was arrested on March 18 for allegedly posting on Facebook objectionable comments against senior Samajwadi Party leader Azam Khan. A petition was filed before the SC in this regard alleging that its advisory was violated after which the apex court asked UP police to explain the circumstances leading to the arrest of the boy.

The Apex Court, in Shreya Singhal v Union of India,[13] has adopted the extreme step of declaring a censorship law passed by Parliament as altogether illegitimate.

Observations of the Supreme Court
The Judgment has increased the scope of the right available to us to express ourselves freely, and the limited space given to the state in restraining this freedom in only the most exceptional of circumstances. The Court found that Section 66A invades the right of free speech arbitrarily, excessively and disproportionately, and so upsets the balance between the right to free speech and expression and the reasonable restrictions that may be imposed on this right. The Court also found that Section 66A was overly broad and included several undefined and ambiguous terms.

Describing liberty of thought and expression as cardinal, a bench of Justice J.Chelameswar and Justice R.F. Nariman said:
The public's right to know is directly affected by section 66A of the Information Technology Act. Justice R.F. Nariman, who pronounced the verdict in a packed court room, said that the provision clearly affects the fundamental right to freedom of speech and expression enshrined in the Constitution and also highlighted that the liberty of thought and expression is not merely an inspirational ideal but its, a cardinal value that is of paramount significance under our constitutional scheme.

Elaborating the grounds for holding the provision unconstitutional, the Court said terms like annoying, inconvenient and grossly offensive, used in the provision, are vague as it is difficult for the law enforcement agency and the offender to know the ingredients of the offence. The bench also referred to two judgments of UK Courts which reached different conclusions on whether the material in question was offensive or grossly offensive.

When judicially trained minds can reach on different conclusions while going through the same content, then how is it possible for law enforcement agency and others to decide as to what is offensive and what is grossly offensive, the bench said, adding, What may be offensive to a person may not be offensive to the other.

The bench rejected the assurance given by the NDA government during the hearing that certain procedures may be laid down to ensure that the law in question is not abused. The government had also said that it will not misuse the provision. But the bench said, Governments come and go but section 66A will remain forever, and further added that the present government cannot give an undertaking about its successor that they will not abuse the same.

The Court also stated that in our constitutional scheme, the state cannot curtail freedom of speech in general public interest. The state can only limit free speech as guaranteed in Article 19(1) on the specific grounds mentioned in Article 19(2); and then too, these restrictions must be reasonable in nature. This means that the act sought to be criminalized must have a direct connection or impact on the maintenance of public order within society. The acts that are proscribed must pose a clear and present danger to the order of society and the danger must be proximate and directly attributable to the proscribed act.

While it is Section 66A that has garnered maximum attention, the judgment also considered the validity of other provisions of the IT Act namely Section 69A and 79 along with the Rules made thereunder. Section 69A and the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 authorize 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 defense and sovereignty, etc.

The Supreme Court however did not strike these provisions down but instead upheld the constitutional validity of the Power given to the government under section 69A to block website content in certain circumstances. Further, 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/ insightful, etc. on their websites/ server space.

Applicability of Indian Penal Code
After deletion of Section 66A, the analogous provisions of the Indian Penal Code (IPC) continues to apply to the online social media content, viz.:
  • Intentionally Insulting Religion Or Religious Beliefs (section 295A);
  • Promoting Enmity Between Groups On Grounds Of Religion, Race Etc. (section 153A);
  • Intentionally Insulting Religious Beliefs Of Any Person (section 298);
  • Defamation (sections 499 & 500);
  • Statements conducing to Public Mischief (section 505);
  • Insulting The Modesty Of A Woman (section 509);
  • Criminal Intimidation (sections 506 & 507);
  • Sedition (section 124-A); etc.
Ironically, these provisions have been criticized for being misused before section 66A was even introduced.

Section 66A required the police authorities to ascertain by themselves, the severity of the material posted online and thereafter arrest the person. Section 66A was the ‘prompt counteractive relief' mechanism available with the complainants as well as with the police authorities for taking prompt action. But the biggest downside to its repeal was to genuine recipients, as they have to now follow a lot more laborious procedure under the IPC and to undertake the arduous task of approaching the Court first, without whose order no action can be initiated. Many a times the police authorities avoid to take initiative and help the complainant as it being an arduous task for them too.

The above sections of the IPC along with the Code of Criminal Procedure (CRPC), and the IT Act should be strengthen to provide for stricter punishment for spreading hatred and for using cyberspace to spread hatred and harassment. But legal concerns often come in the way of social media platforms as well, with the availability of accessible internet facilities complementing freedom of speech and expression.[14]

Today, there is a need for clarity and technical up-gradation to tackle this problem, it is necessary to harmonize various rules and guidelines to prevent misuse of social media platforms and to check the available online content. There is a need to integrate relevant provisions under the IPC, CRPC and IT Act. Also, guidelines for information technology should be implemented to deal with hateful and discriminatory articles, posts, and videos that go viral on the internet.

Significance of 66A
That information technology has been recurrently exploited to harass or create public disorder which cannot be denied, on the contrary it has increased after its striking down. Anomalies aside, section 66A had 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 section 66A to avoid spreading of rumours caused by inflammatory SMS, circulated to incite violence against persons of the north eastern community.

Such instances where religious and communal harmony have been disrupted by publishing/ transmitting inflammatory content in the form of texts, mails, posts, etc. have to undoubtedly be deemed as grossly offensive. Therefore, the reasoning of the Court that section 66A acts beyond the scope of Article 19(2) seems unfounded.

Section 66A had 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.

There are instances where people were arrested even after it was struck down,[15] but it goes with the saying every coin has two sides, section 66A was also a weapon in police's armory to curb spreading communal, political and religious hatred through electronic means and to protect one's dignity & reputation, which is also provided in the Indian Constitution.

No doubt section 66A could be used arbitrarily, but by doing away with the provision on account of its potential misuse, the Court has also discarded a remedial mechanism available to the common man to counter actual cyber offences.

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. What we need is to be able to exercise the right to speech freely but on practical and workable grounds i.e. within specific boundaries.[16]

Legislature on Future Changes
On 2nd April 2015, the then Chief Minister of Maharashtra (CM), Shri. Devendra Fadnavis revealed to the state assembly that a new law was being framed to replace the repealed Section 66A. He was replying to a query of Shiv Sena leader, Neelam Gorhe, who said that repeal of the law would encourage online miscreants and asked whether the state government would frame a law to this regard. To which the CM replied that the previous law had resulted in no convictions, so the law would be framed such that it would be strong and result in convictions.[17]

On 13th April 2015, it was announced that the Ministry of Home Affairs would form a committee of officials from the Intelligence Bureau, Central Bureau of Investigation, National Investigation Agency, Delhi Police and ministry itself to produce a new legal framework. This step was reportedly taken after complaints from intelligence agencies that, they were no longer able to counter online posts that involved national security matter or incite people to commit an offence, such as online recruitment for ISIS.[18]

Former Minister of State with the Ministry of Information Technology, Milind Deora has supported a new unambiguous section to replace 66A and said that, Although I am from a different party, I would support this government if they draft an unambiguous section to replace 66A. That is the need of the hour, not from the government's point of view, but from the netizens's point of view.[19]

An expert committee, constituted by the Centre after the Supreme Court struck down the Section 66A of the Information Technology Act in 2015, has recommended that the Indian Penal Code, Code of Criminal Procedure and the IT Act be amended to introduce stringent provisions, specifying punishment, to deal with cases of hate speech and use of cyberspace to spread hatred and incitement.

The committee, headed by former Law Secretary and Lok Sabha Secretary General T.K. Viswanathan, submitted its report[20] to the Union Home Ministry in October 2017. Committee member Dr. S.Sivakumar, who is also a member of the Law Commission, told The Indian Express: We decided there was no need to re-introduce Section 66A, but we need to strengthen the Indian Penal Code instead.

Moving a step ahead towards framing a distinct law for online hate speech, the Ministry of Home Affairs (MHA) has written to the Law Commission to prepare a draft law. The provisions will deal with offensive messages sent through social media and online messaging applications. Besides the Viswanathan Committee report, the MHA has asked the Law Commission to include recommendations made by in its own Report No.267[[21]] dated 23rd March, 2017 on hate speech and the report of M.P. Bezbaruah Committee[22] to present a comprehensive draft law.

It's been few years but till date no executory step has been taken by the legislature to strengthen the IPC and CRPC with respect of Section 66A. So the question, Whether assassination of dignity and reputation under the guise of right to free speech should be allowed?. Well the question is a debatable one and the instances are alarmingly increasing viz., senior advocate Mr. Prashant Bhushan's interview[23] with ‘Tehelka' magazine[24] and also his tweets on Chief Justice of India[25][26]; Bollywood Actress Swara Bhaskar's comments on Ayodhya verdict at panel discussion organized by Mumbai Collective,[27][28] and now, Famous Bollywood Actress Kangana Ranaut tweeted about comparing Mumbai with POK. Repercussions of her statements led her to Bombay High Court,[29] as the BMC gave her 24hours time to show cause for illegal construction at her office and later BMC demolished some portions but was stopped by the Hon'ble High Court,[30] etc., which are being debated or criticized by the common people on the social media.

Conclusion
The visible paradox in the Shreya Singhal's judgment is that both provisions i.e. sections 66A and 69A, stipulate vague grounds on which action, albeit different in nature, can be taken against objectionable content. The lack of distinct principles to outline the ambit of section 66A gave the Police no yardstick with which to ascertain the veracity and severity of allegations made regarding content being annoying/ offensive.

If the same logic is extended to section 69A, the Hon'ble Court has failed to explain as to how in the absence of any specific test/guidelines, an official of the government can be expected to correctly interpret whether any content is liable to disturb public order, the security and defense of India, etc. Nevertheless, while section 66A has been deemed unconstitutional owing to its vague phraseology, section 69A, notwithstanding its ambiguity has been retained, thus putting a question mark over the uniformity of the Court's rationale.

Right to free speech is very much important but it should be in consonance with the right to protect one's dignity and reputation, which is also basic right. Shreya Singhal's case[31] might have been an appropriate opportunity for the Apex Court to propose a workable distinction between protecting rights and restricting them.

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.

Freedom is not worth having if it does not include the freedom to make mistakes – Mahatma Gandhi.

End-Notes:
  1. Bench comprising of Hon'ble Justice Shri. Chelameswar & Hon'ble Justice Shri. Rohinton Fali Nariman
  2. Shreya Singhal v. Union of India, AIR 2015 SC 1523.
  3. https://www.prsindia.org/theprsblog/background-section-66a-it-act-2000
  4. https://www.rna-cs.com/shreya-singhal-v-union-of-india-air-2015-sc-1523/
  5. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3275893
  6. Order dated 15th February, 2019; M.A. No.3220/2018 in W.P.(Crl.) No.199/2013; Dairy No.44324/2018.
  7. https://eprocure.gov.in/cppp/rulesandprocs/kbadqkdlcswfjdelrquehwuxcfmijmuixngudufgbuubgubfugbububjxcgfvsbdihbgfGhdfgFHytyhRtMTk4NzY=
  8. Bill was introduced in Lok Sabha on 15th December, 2006. Referred to the Standing Committee on 19th December, 2006. Standing Committee filed its report on 7th September, 2007. The bill was passed by Lok Sabha on 22nd December, 2008 and by Rajya Sabha on 23rd December, 2008. Bill received the assent of President on 5th February, 2009 and was notified in the Gazette of India.
    (https://www.prsindia.org/billtrack/the-information-technology-amendment-bill-2006-86).
  9. https://www.naavi.org/ita_2006/itaa_2006.pdf (para 3 at pg. 19)
  10. https://www.naavi.org/ita_2006/itaa_2006.pdf (clause 31 at pg. 21)
  11. https://www.hindustantimes.com/india/sec-66a-of-it-act-scrapped-5-points-observed-by-supreme-court/story-EtZnxzRGrfsutSk5fjML4H.html
  12. https://www.meity.gov.in/writereaddata/files/Advisoryonsection_0.pdf
  13. (2015) 5 SCC 1.
  14. https://www.avenuemail.in/opinion/social-sites-are-a-major-threat-to-a-peaceful-society/149326/
  15. https://www.huffingtonpost.in/2018/10/15/the-supreme-court-struck-down-section-66a-of-the-it-act-in-2015-why-are-cops-still-using-it-to-make-arrests_a_23561703/#:~:text=Until%20it%20was%20read%20down,the%20origin%20of%20such%20messages.%22
  16. https://www.legallyindia.com/views/entry/section-66a-its-repeal-and-its-after-effects
  17. https://timesofindia.indiatimes.com/social/Centre-working-on-new-law-similar-to-Section-66A-Devendra-Fadnavis/articleshow/46780443.cms
  18. https://www.hindustantimes.com/india/new-panel-to-work-on-section-66a-alternative/story-WOBxNKeUQsVfeifkozE3tL.html
  19. https://www.rediff.com/news/column/former-it-minister-milind-deora-why-we-need-a-new-section-66a/20150402.htm
  20. https://drive.google.com/file/d/0B1HsQbGlNpEfUEdsak1qRGxvdkE/view
  21. http://lawcommissionofindia.nic.in/reports/Report267.pdf
  22. This committee was set up in February 2014 after the brutal murder of Arunachal student, Nido Tania, in the national capital.
  23. Mr. Bhushan claimed that half of the past 16 CJIs were corrupt.
  24. Criminal Contempt Petition bearing No. 10/2009 has been filed against Mr. Bhushan and Tarun Tejpal (Editor-in- Chief of ‘Tehelka') in the Supreme Court before a three judges' bench which is till pending; Dairy No.34354 of 2009.
  25. Supreme Court under inherent jurisdiction took suo motu contempt against Mr. Bhushan. Hon'ble Justices Arun Mishra, B.R. Gavai and Krishna Murari vide order dated 14th August, 2020 has found Mr. Bhushan guilty; Dairy No.14323 of 2020; SMC(Cri.)No.000001/2020.
  26. https://main.sci.gov.in/supremecourt/2020/14323/14323_2020_32_1502_23453_Judgement_14-Aug-2020.pdf
  27. https://www.theweek.in/news/entertainment/2020/08/17/contempt-proceeding-sought-against-swara-bhaskar-over-comments-on-ayodhya-verdict.html
  28. Karnataka woman, Usha Shetty seeks contempt action against Swara Bhaskar, however, the Attorney General, K.K. Venugopal as well as Solicitor General, Tushar Mehta, has refused their consent for initiating criminal contempt of Court proceedings against her.
  29. Writ Petition (L) No.3011 of 2020.
  30. Order dated 9th September, 2020 passed by a Bench of Hon'ble Justices Shri. S.J. Kathawalla & Shri. R.I. Chagla.
  31. Shreya Singhal v. Union of India, AIR 2015 SC 1523.

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