Section 66A of Information Technology (Amendment) Act, 2008

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On January 30th, 1997 United Nations General Assembly has passed a resolution adopting the Model Law on Electronic Commerce drafted by the UN Commission on International Trade Law. The resolution recommended that all the member states should enact their laws or revise their existing laws in view of the need for maintaining the uniformity of the laws applicable to alternatives to paper-based methods of communication and storage of information. With effect to this United Nations resolution, the Parliament of India has enacted the Information Technology Act, 2000 to promote efficient delivery of government services by means of reliable electronic records. It was to make electronic transactions easier, provide local recognition for e commerce, facilitate e governance, prevent computer based crimes and ensure security practices in the usage of Information Technology all over the world.

The Information Technology Act, 2000 was amended in 2008. The amended Act which received the assent of the President on February 5th, 2009, contains section 66A.

Section 66A of IT Act provides as under:

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; or

(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.

The section defines the punishment for sending “offensive” messages through computer or any other communication device like a mobile phone or a tablet. A conviction can fetch a maximum of three years in jail and a fine. The objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media, Section 66A comes with extremely wide parameters, which allow various interpretations by law enforcement agencies.

Most of the terms used in the section have not been specifically defined under the Act. This goes against the cardinal principle of Criminal law, which requires each and every term or expression used in a law to be well-defined, leaving no scope for misinterpretation and possible misuse. It was for this reason that in the entire Indian Penal Code, Lord Macaulay used numerous explanations and illustrations to clarify penal provisions and defined almost all expressions used in the Indian Penal Code.

Section 66A of the Information Technology Act appears to violate the fundamental right to freedom of speech and expression which is guaranteed under Article 19(1)(a) of the Indian Constitution. And the restrictions it seeks to impose cannot be said to be reasonable as required under Article 19(2) of the Constitution. On various petitions files before the Supreme Court, by admitting some of them the Supreme Court has observed that-

 “Section 66A does not give any specific guidance on when to invoke it, unlike the provisions in the Indian Penal Code (IPC). It appears that nobody has to even say anything hateful or meaning ill will, annoyance of someone could be used to invoke it” said a bench of Justices J Chelameswar and S Bobde”.

The first petition came up in the court following the arrest of the two girls in Maharashtra by Thane police in November 2012 over a Facebook post. The girls had made comments on the shutdown of Mumbai for the funeral of Shiv Sena Chief Bal Thackeray. The arrests triggered outrage from all quarters over the manner in which the cyber law was used. Some other instances reported may include arrest of Ambikesh Mahapatra, Jadavpur University Professor who has forwarded caricatures on Trinamool Congress Chief Mamata Banerjee on Facebook. Activist Aseem Trivedi was arrested for drawing cartoons lampooning Parliament and the Constitution to depict their ineffectiveness. Mayak Sharma, an Air India employee and K V Rao were arrested for allegedly posting offensive comments against politicians on their Facebook group. Businessman Ravi Srinivasan was arrested by Puducherry police for an allegedly offensive tweet against the son of a former cabinet minister.

Petitions were filed after the incidents of arrests of the two girls in Thane, Maharashtra in 2012 after the death of the Shiv Sena Chief. These petitions were filed by a law student, Shreya Singhal and other NGOs for quashing the provision as it is misused and they have also challenged the validity of the Act under the provisions of the Indian Constitution. When the petition was hears initially in 2014, the centre defended themselves by contending that such arrests can be made only after obtaining permission from the superior police officials and abuse of law is not a ground for quashing it. However the Court reserves its Judgment in the present case, the Government in the meanwhile instead of defending the validity of the Act can radically narrow Section 66A’s scope, removing all ambiguity about what constitutes crime. Or it can throw it out, since specific cyber offences can be covered under existing laws which already deal with Libel, Defamation, Threats and Intimidation and doing nothing is not an option for the resolution of the current issue.

About the Author

Surya SriSurya Sri is a final year student of NBM Law College, Visakhapatnam. She is determined to serve the nation and has an inclination towards Civil Services and is currently preparing for the same. She has pursued studies related to Human Rights and Criminology. She has keen interest in the fields of Public Policy and International affairs. She enjoys public speaking on social issues. Her other interests range from debating and researching on new aspects to interacting with people and being actively involved in community development. Her hobbies include listening to music, travelling and photography.

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