Section 66A of the IT Act

• 13 Jul 2021

Why in News

The Supreme Court has issued a notice to the Centre on the use of Section 66A of the Information Technology Act, 2000 that was scrapped several years ago.

• The court struck down the provision as unconstitutional and a violation of free speech in 2015 in the Shreya Singhal Case.
• The IT Act, 2000 provides for legal recognition for transactions through electronic communication, also known as e-commerce. The Act also penalizes various forms of cyber crime.

Key Points

• About Section 66A:
  
  • It empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc.
  • It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.
• Issues with Section 66A:
  
  • Based on Undefined Actions:
    
    • The court observed that the weakness of Section 66A lay in the fact that it had created an offence on the basis of undefined actions: such as causing “inconvenience, danger, obstruction and insult”, which do not fall among the exceptions granted under Article 19 of the Constitution, which guarantees the freedom of speech.
  • Subjective Nature:
    
    • The court also observed that the challenge was to identify where to draw the line. Traditionally, it has been drawn at incitement while terms like obstruction and insult remain subjective.
  • No Procedural Safeguards:
    
    • In addition, the court had noted that Section 66A did not have procedural safeguards like other sections of the law with similar aims, such as the need to obtain the concurrence of the Centre before action can be taken.
      
      • Local authorities could proceed autonomously, literally on the whim of their political masters.
    • The Court did not strike down two other provisions- sections 69A and 79 of the IT Act – and said that they can remain enforced with certain restrictions.
      
      • Section 69A provides power to issue directions to block public access of any information through any computer resource and Sec 79 provides for exemption from liability of intermediary in certain cases.
  • Against the Fundamental Rights:
    
    • Section 66A was contrary to both Articles 19 (free speech) and 21 (right to life) of the Constitution.
      
      • Right to know is the species of the right to speech and expression provided by the Article 19(1) (a) of the constitution of India.

Way Forward

• There is a pressing need to move from a system where communication about judicial decisions is at the mercy of initiatives by scrupulous officers, to a method not contingent on human error to the greatest possible extent. The urgency cannot be overstated.
• Enforcing unconstitutional laws is sheer wastage of public money.
• But more importantly, until this basic flaw is addressed, certain persons will remain exposed to denial of their right to life and personal liberty in the worst possible way imaginable.
• They will suffer the indignity of lawless arrest and detention, for no reason other than their poverty and ignorance, and inability to demand their rights.

Source: TH