Digital technology and new communication systems have made dramatic and
drastic changes in our lives as most business transactions are being made with
the help of computers. The business community, as well as individuals, are
increasingly using computers to create, transmit and store information in
electronic form instead of old-age paper documents as it is cheaper and also
easy to store, retrieve, and speedier to communicate.
People are aware of the advantages but they are reluctant to conduct business or
conclude transactions in the electronic form due to a lack of legal framework.
Since electronic commerce eliminated the need for paper-based transactions, thus
the need was felt to initiate e-commerce, therefore bringing legal provisions to
get recognition for the same. The United Nations Commission on International
Trade Law (UNCITRAL) adopted the Model Law on electronic commerce in 1996. India
being a signatory to it has to revise its laws as per the Model Law-keeping into
consideration the suitable amendments.
Objects and reasons
Businesses and consumers are increasingly using computers to create, transmit
and store information in electronic form. At present many legal provisions
assume the importance of paper-based documents that should bear signatures. The
Law of Evidence is based upon paper-based records and oral testimony.
Since electronic commerce eliminated the need for paper-based transactions,
hence to facilitate e-commerce the need was felt to bring urgent legal changes.
The UNCITRAL adopted the Model Law in the year 1996 on electronic-based
communications. There is a need to bring suitable amendments with changing times
in the existing law of our country to facilitate e-commerce. It is, therefore,
proposed to provide legal recognition of electronic records and digital
It is also proposed to provide for a regulatory regime to supervise the
Certifying Authorities issuing Digital Signature Certificates to prevent misuse
arising out of transactions. It is also proposed to impose civil and criminal
liabilities for contravention of the provisions. Thus, the changes were brought
to satisfy the current needs of the country and to lessen the burden.
But not all citizens use it for the bonafide purpose some uses it for its
malafide intention giving rise to cybercrime. Section 66 of the Information
Technology Act 2000 (amendment 2008) speaks about cybercrimes. After (Amendment
2008) Section 66 A- 66F was added describing certain kinds of offences. Here in
this article, we will be looking forward to Section 66 A specifically in the
light of Supreme Court Judgement.
Illustrations related to Section 66 A
Cybercrime is an unlawful act in which the computer is either a tool or a target
or both. Section 66 A specifically talks about sending offensive messages.
Certain illustrations which would clear the above stated are:
Summary of the Section 66 A
- Pooja is Sameer's ex-girlfriend. After their breakup, Pooja married
Tapan, who is unaware of Pooja's past relationship with Sameer. Angry over
this issue, Sameer sends an email to Pooja, in which he threatens that
unless Pooja gives him Rs. 1lakh, he will spread the news that Pooja had
been pregnant before marriage. Pooja does not give him the money. Sameer
sends emails to all of Pooja's friends and relatives telling the same.
- If the information about Pooja's pregnancy is true then Sameer will not
be held liable under this section. If this information is false, then Sammer
will be liable under this section.
- This section also penalizes the sending of emails (this would include
attachments in text, image, audio, video as well as any additional
electronic record transmitted with the message) for the following purpose
- Annoying or
- Causing inconvenience or
- To deceive or to mislead about the origin of the messages
- Sanjay sends emails to thousands of customers of the NatCash Bank. These
emails request the receipt to click on a link and enter their online banking
username and password at a website that appears to be that of the Bank but in
reality, is fake. Sanjay has spoofed the emails in such a way that they appear
to have originated from the NatCash Bank official email address.
- Therefore, he would be held liable under this section.
Hereinbelow is the summary of section 66 A to get a better understanding which
is later in 2015 has been repealed by the Supreme Court in Shreya Singhal vs.
Union of India.
Acts penalized under 66 A
Punishment under 66 A
- Sending message which is offensive, menacing or false information
circulated for generating hatred, ill-will, enmity, insult, injury, etc. Or
sending e-mails or other messages that mislead the recipient about the
origin of such messages.
- Imprisonment up to 3 years and fine.
Punishment for attempt under 66 A
- Imprisonment up to 18 months and fine.
Punishment for abetment under 66 A
- Imprisonment up to 3 years and fine.
Is 66 A Cognizable and Bailable
As Stated This Section Has Been Repealed By Supreme Court Landmark Judgement
In Shreya Singhal Vs. Union Of India
(2013) 12 Scc 73.
Facts of the case
Analysis of the provision
- Two girls Shaheen Dhaba and Renu Srinivasan were arrested by Mumbai police in
2012 for expressing their displeasure for a Bandh in the wake of Shiv Sena chief
Bal Thackrey's death.
- They posted some comments on Facebook in a form of expressing their
- Further, they were arrested under section 66 A of the Information
Technology Act, 2000 but were released later.
- It was thus decided to close the criminal cases against them yet the
arrests attracted widespread public protest.
- It was felt that the police have misused its power by invoking section
66 A inter alia contending that it violates the freedom of speech and expression.
- Therefore the Apex Court judgment came on a batch of petitions
challenging the constitutional validity of section 66 A of the IT Act on the
grounds of it being vague and ambiguous and further being misused by the
Supreme Court in the case analyzed that the said provision is curtailing the
citizen's fundamental right of Freedom of Speech and Expression, the two
cardinal pillars of democracy and it being a cognizable offence is widely
misused by the police authority in various states to arrest innocent persons for
posting critical comments about social and political issues and political
leaders on social networking site. The court felt that it was time to erase the
provision from the law book as it has gone beyond reasonable restrictions
imposed by the constitution concerning freedom of speech and expression.
Analysis of the judgment
- The Court held that the provision of section 66 A is contemptuous to
Article 19(1) (a) and thus is arbitrary which breaches the right of citizens
to express their opinion freely on the internet. The 123-page long judgment
which extensively discussed Indian, US, and English jurisprudence on free
speech, the Supreme Court struck down Section 66-A of the Information
Technology Act. Justice Nariman discussed the various standards which are applicable to adjudge
when restrictions on speech can be deemed reasonable, under Article 19(2) of the
It was also held that the section is unconstitutional on
the ground that it takes within its sweep protected speech and considered the
�chilling effect' on speech caused by vague and over-broad statutory language as
a rationale for striking down the provision. Further, the Court held that the
�public order' restriction under Article 19(2) of the Constitution would not
apply to cases of �advocacy', but only to �incitement', specifically incitement
which has a proximate relation to public disorder.
The judgment given in this case is important in the Supreme Court's history as
it has widened the scope of freedom of speech and expression in a way of right
available to express oneself freely and thus limited the scope of state in
restraining the freedom in only most of the exceptional circumstances. Justice Nariman has highlighted that the liberty of thought and expression is not merely
an inspirational ideal. It is also a cardinal value that is of paramount
significance under our constitutional scheme.
Therefore, it can be concluded that striking down the provisions of the
Information Technology Act about section 66 A has not only to widen the scope of
the freedom of speech and expression but has also created a scope for posting
pictures and comments against any person without any fear and restriction of
punishment as the words such as offensive and menacing are vague and ambiguous
and can be interpreted widely.
Thus if a person so finds himself defamed can
exercise his right by filing a complaint about defamation under section 500 of
the Indian Penal Code. Hence, Section 66 A provided an opportunity to genuine
victims of cyber harassment to obtain immediate relief against content that may
be insulting or injurious, abrogation of which has now made Police authorities
toothless in dealing with the growing menace of cyber bullying.
- (2013) 12 SCC 73.