SUPREME COURT JUDGMENT ON SECTION 66A OF INFORMATION TECHNOLOGY ACT, 2000: A CRITICAL ANALYSIS

By- Vikap Sharma

Shreya Singhal v. Union of India AIR 2015 SC 1523

In this era of the Internet, people across the world have moved towards technology which has led them to use the Internet for a vast amount of time. Internet helps people disseminate the data on the social platform which within a fraction of second moves around the world, and there are certain information which creates disharmony, ill-will, hatred, enmity or affects the public tranquility especially in India where more than two religions are practiced and which supposedly could create disharmony in the Nation. In the year 2020, the usage of the Internet and the number of offences has increased in a huge number. During the research, the usage of Internet in India has increased, when the Judgment was passed earlier in the year 2015, the number was around 259.88 Million and in the year 2020, it has reached to 564.5 Million and with this growth, by the year 2023, it will cross 600 Million[1]. To govern such offences Legislature intending to control such aforesaid offences have amended the Information Technology Act, 2000 (hereinafter referred to as IT Act, 2000), and introduced Section 66A by the virtue of the Amendment Act of 2009 with the effect from 27.10.2009.

Section 66A says:

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

  • any information that is grossly offensive or has menacing character; or
  • 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
  • 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 purpose 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.

However, in Shreya Singhal v. Union of India[2], Section 66A of IT Act, 2000 was challenged. It was challenged because it violates the Freedom of Speech and Expression under Article 19(1)(a)of the Indian Constitution. In this article, the author has criticized the Judgment passed by Hon’ble Supreme Court of India in the year 2015, wherein Hon’ble Justice RF Nariman and Hon’ble Justice J. Chelameswar held the Section 66A of IT Act, 2000 to be Unconstitutional.

Background of the Case

Mumbai Police arrested Shaheen Dhada and Rinu Srinivasan in the year 2012 for posting their dismay at bandh in the wake of Bal Thackrey’s demise. These girls posted on the social networking site called “Facebook”. Although the girls’ arrest was discharged it was presumed that police have abused its authority by invoking Section66 A of IT Act, 2000 which they claim to be a breach of the fundamental right of freedom of speech and expression.

The offences under Section 66A being the cognizable offences, where the police can arrest or investigate without a warrant.

However, in January 2013, the Central Government issued an advisorywherethepolicehavenopowertoarrestwithouthavingpriorpermissionfromDeputy Commissioner, Inspector General of Police, or any other officer senior to him/her.

The Writ petition in the public interest was filed under Article 32 in Supreme Court, where the Constitutional validity of Sections 66A, 69A[3] of IT Act, 2000 were challenged.

Issues

The writ petition has been filed by the petitioner, seeking to declare Section 66A, 69A and 79 of IT Act, 2000 unconstitutional on the grounds of the phraseology used in these Sections are broad and vague and it violates freedom of speech and expression which is guaranteed by Article 19(1)(a) of Indian Constitution.

They also argued that the general terms which have been used in these Sections like, menacing, offensive, annoyance, inconvenience, etc. have not been defined in the Act.

Petitioner Arguments
  1. The petitioner claimed that the basis of Section 66A of IT Act, 2000 is to give rise to the new forms of crimes which is inappropriate. Also, it was contended that Section 66B to 67 C of IT Act, 2000, and numerous Section of Indian Penal Code are satisfactory to deal with these crimes.
  2. 66A of IT Act, 2000 infringes the right to free speech and expression. Also, it cannot be protected by any of the eight subjects covered under Article 19(2).
  3. Also, it was claimed that annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill-will were outside the purview of Article 19(2).
  4. It was also argued that the offences mentioned are vague and will allow the authorities to be arbitrary and whimsical as they like in booking person under the said Section.
  5. It was also claimed by the Petitioners that there is no relation between Section 66A & Public order or incitement to an offence which is enunciated under Article 19(2).
Critical approach

Since the judgment was conceded in the year 2015, the world has moved towards the internet in a huge number. The demand of internet has drastically changed and with the usage of internet, the offences like publishing information which is offensive or has threatening character, causing annoyance, promoting hatred or ill-will towards the society have also increased. Legislature with the motive to prevent or govern such aforesaid offences introduced Section 66A which provides the punishment for sending offensive messages, but the same was struck down by Supreme Court in the year 2015 stating that the particular Section is Unconstitutional.

The author in this article has criticized the decision of the Supreme Court in Shreya Singhal v. Union of India[4] in the following points:

1.The Objective of introducing Section 66A

To study the Constitutionality of a statue or any of its provisions it is relevant to consider its object and reason. Along with this, the legislative history of the statute is also to be seen. It would help the Court in arriving at a more objective and useful approach[5].

The chief objective or reason to introduce this particular section is to upsurge the use of technology. It has given a rise in crimes like publishing sexually explicit materials in electronic form, publishing fake news about the religions which can create disharmony or disturb public order in the society, e-commerce frauds like phishing, identity theft, or an offensive messages[6]. To govern and prevent these aforesaid offences, penal provisions should be included in the IT Act and with that Section 66A was introduced, however, the Supreme Court failed to consider the objective of Legislature in introducing this Section.

2.Constitutional approach

Reasonable Restriction: Reasonableness of restriction has to be viewed from the point of view of the citizen and also from the point of the problem before the legislature[7]. Public order and incitement to an offence under Article 19(2) will prove Section 66A’s Constitutionality.

Preservation of public order is a ground for limiting the freedom of speech and expression. This ground did not occur in the Constitution as framed in 1950. It was added by the Constitution (1st Amendment) Act, 1951[8] and so does the ground for incitement to an offence.

Although the Section was holding the freedom of speech and expression but the Article 19(1)(a) Freedom of Speech and Expression is not absolute, it has a reasonable restriction given under Article19(2).

The article read as:

“Article 19 (1). All citizens shall have the right:

  • To freedom of speech and expression (B)…….……………………………………..

(G)……………………………………………..

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause, in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”.

The zest of the Article 19 (1) (a) says that “Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to pursue, receive and promulgate information and ideas through any media and regardless of state boundaries, providing with some reasonable restrictions enunciated under Article19(2).

As per Section 66A is concerned, the petitioners were right holding that this Section is against the freedom of speech and expression, but it was with accordance to the eight subjects which are mentioned under Article 19(2) in terms of ‘public order’ and ‘incitement to an offence’.

In Ramji Lal Modi v. State of UP[9] and Virendra v. State of Punjab[10], held that “Not only such utterance as are directly intended to incite disorder but also those that have the tendency to lead to disorder. Thus, punishment made for the utterances made with the intention to hurt the religious feelings of any class of person is valid. It is so because it imposes a restriction on the right of free speech in the interest of public order.

Since petitioners in the case were mostly relied on the judgments passed by the Courts of United States of America, it was well said in Indian Express Newspapers (Bombay) Private Limited and Others v. Union of India and Others[11] that “While examining the Constitutionality of a law which is alleged to contravene Article 19(1)(a) of the Constitution, we can solely be guided by the decisions of the Supreme Court of the USA. The outline of Article 19(1)(a) and of Article 19(1)(g) of our Constitution is different from the pattern of the First Amendment to the American Constitution as it is absolute in its terms. The rights guaranteed under Article 19(1)(a) and Article 19(1)(g) of the Constitution are read along with clause (2) and (6) of Article 19 to carve out areas in respect of which valid legislation can be made.

In P. Lakshmi Devi[12] case, this Court has observed, “Even if two views are there possibly, one making the Statue Constitutional and the other making it Unconstitutional, the former must prevail and the Court must make efforts to uphold the Constitutional validity of a Statue, unlike a policy decision, where the executive decisions could be rendered invalid on the ground of malafide, unreasonableness and arbitrariness alone.”

In Mark Netto v. Government of Kerala and Others[13],  Supreme Court observed that “The Court must make every effort to sustain the Constitutional validity of the Statute, even if that requires giving the strained construction or narrowing down its scope.”

Section 66A of IT Act, 2000 was introduced in order to maintain public order by the legislature. In Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia[14], Apex Court held that restriction cannot be held within meaning of Article 19(2) if the restriction has no proximate relationship to the achievement of Public Order. The expression “Public Order” is identical to public peace, safety, and tranquillity[15]. Therefore, Section 66A was in view to prevent and maintain the public order and any other offences which are mentioned in the section thereof, and with reference from the judgment of Ram Manohar Lohia, Section 66A has a proximate relationship to the achievement of public order, and, therefore, Section 66A is Constitutional.

  • Internet media is a different platform from Print media

Romesh Thapar v. State of Madras [16] has affirmed that “Although Article 19(1)(a) does not specifically states the freedom of the press the judicial decisions have repeatedly affirmed that the Article is sufficiently wide to include the freedom of the press. However, the medium of speech being the internet differs from other mediums. They are stated as:

  1. Accessibility: Print media can only be access by literate people but as far as the internet is concerned, the access of the internet is for literate as well for illiterate people in the way of videos.
  2. Reach-ability: Print Media is limited to one state or area, but the reach-ability of the internet media is all across the world.
  3. Using advance way by morphing the pictures on the Internet is easy rather than of  print media
  4. Sexual harassment is easy on the Internet
  5. Maintaining anonymity is easy on internet, can be reveal only after thorough investigation.

All the above factors clear that there is a distinction between print media as opposed to the internet, therefore, the need for separate offences for free speech on the internet is very important especially during this internet age. However, the Supreme Court failed to recognize the importance of Section 66A, and the difference between both print media and the internet was neglected. [17]

  • Vagueness is not a ground to declare a Statute Unconstitutional.

If any statute or provision of an Act is ambiguous or broad, then it cannot be a ground to declare the provision Unconstitutional. There is a plethora of cases, where the Supreme Court held that “vagueness is not a ground to declare Statue or Provision Unconstitutional, but it should be construed by the court with the intention of the Legislature.”

In the Namit Sharma case[18], “Supreme Court observed that vague provision is to be amended by the legislature to avoid any ambiguity or impartibility and to make it in consonance with Constitutional mandate.”

In K. A Abbas v. Union of India and Another[19], this Court observed that “This brings us to the manner of the exercise of control and restriction by the directions. An argument is when most of the regulations are vague. They leave no scope for the exercise of creative genius in the field of art. This poses the first question of whether the ‘void for vagueness’ doctrine is applicable. Reliance in this connection is placed Municipal Committee Amritsar and Another v. State of Rajasthan[20], “in that case a Division Bench laid down that an Indian Act cannot be declared invalid on the ground that it violates the due process clause.”

In State of Madhya Pradesh and Another v. Baldeo Prasad[21], the Supreme Court observed that “If a law is vague or appears to be, the Court must try to interpret it. The language permitting, the construction sought to be placed, should be in accordance with the intention of the legislature. If the law is open to diverse construction, the construction which consensuses best with the intention of the legislature and advances the purpose of legislation should be preferred.

Illustrations
  1. Let’s say, A posted a remark saying that the Pakistan Government is way better than Indian Government, and Pakistani’s are smarter than Indians. A makes this comment just to disturb the public order and create disharmony in Nation through social media. Section 66A was formed to govern such situations where remarks are being made through the internet and social media. This aforesaid Section provides punishment for disturbing public order.
  2. A and B work together in a company where they both share a video and bad comments about Prime Minister of the Country and also disgrace the National Flag by tearing it apart. Eventually, the post created havoc and annoyance in society by just sharing it on social media.
Suggestions
  1. Enforce Section 66A by way of prospective overruling[22];
  2. Construct the provision which can be in consonance to the intent of legislature;
  3. Remove the ambiguity from the provision; and
  4. Make a distinction between the offences which should be dealt under and by way of Section66A.
Conclusion

Shreya Singhal Judgment was passed in the year 2015, where Section 66A was struck down by ignoring the objective, intention of the legislature, and various principles of Article 19(2). We can certainly say that the need for Section 66A is now more than ever. The use of the internet and social media has increased more than it used to be especially during this Covid-19 situation.

People tend to post or share videos, messages on the social platforms, sometimes the incidents happen, where people don’t give a thought about it and share or post things which could lead to disturbing public tranquility. Many incidents happen, where people post or send grossly offensive messages which could lead to annoyance in the society.

The need of the hour is to enforce Section 66A by the virtue of prospective overruling and construct the provision in consonance to Article 19(2).

Internet in India is governed through Information Technology Act, 2000, and removing a provision that could prevent social media offences is not appropriate and especially in this Internet era, where it is way easier to disturb public order and easier for someone to incite for an offence.


[1] Total internet users in India | Statista Statista, https://www.statista.com/statistics/255146/number-of-internet-users-in-india/ (last visited Aug 18, 2020).

[2]Shreya Singhal v. Union of India, AIR 2015 SC 1523.

[3] Section 69A says: 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 authorized 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.

  • 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.
  • 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.

[4]  Ibid 2

[5] Namit Sharma v. Union of India, 2013 (1) SCC 745.

[6] Ibid 2

[7] From Kesavananda Bharati cited in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534, 563.

[8] V.N Shukla, Constitution of India.

[9] Ramji Lal Modi v. State of UP, AIR 1957 SC 620.

[10] Virendra v. State of Punjab, AIR 1957 SC 896.

[11] Indian Express Newspapers (Bombay) Private Limited and Others v. Union of India and Other, (1985) 1 SCC 641.

[12] P. Lakshmi Devi, (2008) 4 SCC720.

[13] Mark Netto v. Government of Kerala and Others, AIR 1979 SC(83).

[14] Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, AIR 1960 SC633.

[15] Ibid 7

[16] Romesh Thapar v. State of Madras, AIR 1950 SC 124.

[17]Secretory Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal (1995) 2 SCC 161.

[18] Ibid 5

[19]  K. A Abbas v. Union of India and Another, (1971) 2 SCR 446.

[20] Municipal Committee Amritsar and Another v. State of Rajasthan, 1970 AIR 2182.

[21] State of Madhya Pradesh and Another v. Baldeo Prasad, 1961 (1) SCR 970.

[22] Golaknath v. State of Punjab, 1967 AIR 1643.

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