REVISION OF SECTION 66 A OF IT ACT WHICH ALLOWED INTEREST ON ONLINE CONTENT

ABSTRACT

If one ever thinks about the rights guarantying freedom, the first right which hits the mind is the right to freedom of speech and expression probably due to the reason that the right lies at the very core of a Democracy and reflects the power of no one but the “people”. However, like any other right, this one also comes with certain restrictions which are often misused at the hands of the Government. The article will put a glance on the right to free speech with respect to S. 66 A of the IT Act and will highlight the loopholes (if any) in the provision. Furthermore, leading cases relating to the issue will be discussed with special focus upon the judgment in Shreya Singhal v. Union of India where the apex court decided the fate of the provision followed by conclusion.

INTRODUCTION

In order to achieve uniformity in laws of different countries the United Nations Commission on International Trade Law (UNCITRAL) adopted the model law on e-commerce in 1996 followed by the General Assembly’s recommendation to all the countries to consider this model before enacting or attempting to bring a change in their domestic laws.[1] It was after this that India enabled the cyber laws by passing the Information Technology Act in the year 2000 with an objective to provide legal recognition for transactions carried out by means of electronic data.[2]

However, the Act has been the subject of intense debate over the last few year due to S. 66 A,[3] a provision which was not a part of the Act originally but was inserted later through an Amendment.[4] The provision penalised the speech over computers or communication devices which is of offensive or menacing nature and prescribed a punishment of three years with fine. Thus, conferring a power upon the State which was allegedly misused by the ruling governments in order to curb political dissent.

FREEEDOM OF SPEECH- INDIAN AND INTERNATIONAL SCENARIO

Constitutional Aspect in India

Freedom of speech is the bulwark of democratic government and is essential for the proper functioning of the democratic process.[5] In India this right is guaranteed under Part III of the Constitution.[6] However, it is subject to certain restrictions which are laid down under A. 19(2)[7] which includes Interests of Sovereignty and Integrity of India, Security the State, Friendly relations with foreign States, Public order, Decency or Morality, Contempt of court, Defamation or Incitement to an offence. [8]

Although in its terminology, A. 19 (1) (a) appears to be limited in safeguarding free speech and expression. However, through interpretation in various case laws several rights have been read into the provision some of which include the freedom of Press,[9] right to receive information,[10] right to broadcast[11] and right to Commercial Speech,[12] Moreover, as the expression through internet has gained contemporary relevance, the freedom of speech and expression through the medium of internet has also been held to be integral part of Art. 19 (1) (a).[13]

Further, the right to criticize the Government in India is reserved in the terminologies of S. 124A of IPC which allows disapprobation and penalises disaffection. Apart from this there are various statutory enactments regarding freedom of speech in India such as the Press Councils Act,[14] the Delivery of Books and Newspapers (Public Libraries) Act,[15] 1954 and the Right to Information Act, 2005.[16]

International Perspective

Various international declarations and conventions recognise the freedom of expression which includes freedom to hold opinions and to receive and impart information and ideas. Some of these are the Universal Declaration of Human Rights, 1948,[17] International Covenant of Civil and political Rights, 1966,[18] European Convention on Human Rights, 1950,[19] and the American Convention on Human Rights,[20]

The principles laid down in the above conventions have been applied by courts in various jurisdictions across the globe including the American and the English courts in the development of their domestic laws.

MISUSE OF S. 66A – THE CASES WHICH IGNITED THE DEBATE

For its poor drafting, vague terminology, and its misuse on the part of the government, the provision had often been the center of debate when it came to encroachment upon the fundamental freedoms. The fact that “grossly offensive” or “menacing” could be subject to any interpretation, not necessarily reasonable, clearly violates the reasonable restrictions imposed on freedom of expression under Article 19(2) of the Constitution. [21]

Be it the arrest of cartoonist Aseem Trivedi for displaying cartoons that mocked the Parliament on his website and Facebook page or the arrest of India against corruption volunteer Ravi Srinivasan for his remark against the then Finance Minister’s son or charging a professor for sharing cartoons of the then chief minister of West Bengal via email, the law due to these instances appears to be in very poor light.

Constitutionality of S. 66 A

The provision again came into limelight in 2015 through the case Shreya Singhal v. Union of India when the same was challenged on the ground that it violates the right of free speech and expression.[22] The petition was filed by a law student who along with her friend was arrested for posting allegedly offensive and objectionable comments on Facebook about the shutdown in the city of Mumbai after the death of a political leader. It was argued by the petitioner that it lies outside the purview of Article 19(2) and was unconstitutionally vague as it fails to specifically define its prohibitions. It was also contended that it has a “chilling effect” on the right to freedom of expression.

The Supreme Court through Justices Chelameswar and Justice Nariman held that the provision is capable of limiting all forms of internet communications as it makes no distinction “between mere discussion and advocacy of a particular viewpoint which may be annoying or inconvenient or grossly offensive.” It was further found by the court that the law fails to establish a clear proximate relation to the protection of public order as does not make distinction between mass dissemination and dissemination to only one person.

Furthermore, following the U.S. precedent the court held that “where no reasonable standards are laid down to define guilt in a provision which creates an offense and which is vague must be struck down as being arbitrary and unreasonable.” The Court found that Section 66A leaves many terms open-ended and undefined, thereby making the statute void for vagueness. [23]

CONCLUSION

After a brief study of S. 66 A of the Information Technology Act with respect to its constitutionality in light of A. 19 of the Constitution of India, it is hereby concluded that a country which aspires to be a democracy should not come up with such draconian laws as it is the essential nature of the rule of law in all democratic countries that men in public positions, even though officials, can claim no immunity from criticism.[24]

The same has also been emphasised upon by the European Court of Human Rights that the actions or omissions of the Government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the press and public opinion.[25]  Thus, political dissent or criticism of the one who are serving the public must be allowed for ensuring a check upon the actions of the government and preventing the arbitrary use of power.

Moreover, as laws in this regard already existed, there was no need of such a law and that too with vaguely defined terms which shows nothing but the ill intent of the government behind its enactment. Also, owing to its misuse at various instances as discussed above further makes it unsuccessful in achieving its objective. Thus, in all the above respects it was liable to be held unconstitutional.

  • REFERENCES
  • Books
  • K I Vibhutee, PSA Pillia, 1054 (14th ed. 2019).
  • M P Jain The Indian Constitutional Law 1058 (8th ed. 2018).
  • Statutes
  • The Constitution of India, 1950.
  • Press Council of India Act, 1978.
  • Information Technology Act, Preamble, 2000.
  • The Delivery of Books and Newspapers (Public Libraries) Act, (1954).
  • International Conventions
  • Universal Declaration of Human Rights, A. 19, 1948.
  • International Covenant of Civil and political Rights, A. 19, 1966.
  • European Convention on Human Rights, A. 10, 1950.
  • American Convention on Human Rights, A. 13, 1969.
  • Cases (Indian)
  • Odyessy Communication Ltd. V. Lokvidayan Sanghatana, 1988 SCR Supl. (1) 486.
  • Tata Press Ltd. V. Mahanagar Telephone Nigam Ltd., (1995) 2 SCC 161.
  • Anradha Bhasin v. Union of India & Ors. WP No. 1031 of 2019 and Ghulam Nabi Azad v. Union of India & Anr  WP No. 1164 of 2019.
  • Shreya Singhal v. Union of India, AIR 2015 SC 1523.
  • Cases (Foreign)
  • Castells v. Spain, (1992) Application no. 11798/85, Series A no. 236.
  • Online Journals
  • We Do Not ‘Like’: Section 66A of the IT Act is an unconstitutional weapon that is being used for political vendetta. (2012). Economic and Political Weekly, 47(49), 8-8.
  • Freedom of speech and expression under Indian Constitution with special reference to electronic media, Chapter 2, shodhganga.inflibnet.ac.in. last retrieved on 03/05/2020.
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  • http://www.legalservicesindia.com, Last Retrieved on 03/05/2020.

[1] Information Technology Act, Preamble, (2000).

[2] Id.

[3] Information Technology Act, Preamble, S. 66 A (2000).

[4] Information Technology Amendment Act, (2008).

[5] Justice Jasti Chelameswar, Justice Dama Seshadri Naidu, M P Jain The Indian Constitutional Law 1058 (8th ed. 2018).

[6] The Constitution of India, A. 19 (1) (a), (1950).

[7] The Constitution of India, A. 19 (2), (1950).

[8] The Constitution of India, A. 19 (2), (1950).

[9] LIC v. Manubhai D Shah, (1992) 3 SCC 637.

[10] Union of India v. Association for Democratic Reforms, (2002) 5 SCR 294.

[11] Odyessy Communication Ltd. V. Lokvidayan Sanghatana, 1988 SCR Supl. (1) 486.

[12] Tata Press Ltd. V. Mahanagar Telephone Nigam Ltd., (1995) 2 SCC 161.

[13] Anradha Bhasin v. Union of India & Ors. WP No. 1031 of 2019 and Ghulam Nabi Azad v. Union of India & Anr  WP No. 1164 of 2019.

[14] Press Council of India Act, (1978).

[15] The Delivery of Books and Newspapers (Public Libraries) Act, (1954).

[16] Freedom of speech and expression under Indian Constitution with special reference to electronic media, Chapter 2, shodhganga.inflibnet.ac.in. last retrieved on 03/05/2020.

[17] Universal Declaration of Human Rights, A. 19, (1948).

[18] International Covenant of Civil and political Rights, A. 19, (1966).

[19] European Convention on Human Rights, A. 10 (1950).

[20] American Convention on Human Rights, A. 13, (1969).

[21] We Do Not ‘Like’: Section 66A of the IT Act is an unconstitutional weapon that is being used for political vendetta. (2012). Economic and Political Weekly, 47(49), 8-8.

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

[23] Id.

[24] K I Vibhutee, PSA Pillia, 1054 (14th ed. 2019).

[25] Castells v. Spain, (1992) Application no. 11798/85, Series A no. 236.