The Supreme Court asked the States to respond to a petition that stated citizens continued to get booked and prosecuted under Section 66A of the Information Technology Act for expressing themselves freely on social media.
Background
Section 66A of the Information Technology Act, 2000 was struck down 6 years ago.
The Centre has now written to states, asking them not to register cases under the repealed provision and withdraw any such case that may have been filed.
“The Union Ministry of Home A airs (MHA) has requested States and Union Territories (UTs) to direct all police stations under their jurisdiction not to register cases under the repealed Section 66A of the Information Technology Act, 2000.
bout Section 66A
Introduced by the UPA government in 2008, the amendment to the IT Act, 2000, gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.
Section 66A 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.
The section came to the notice of supreme court after the first petition came up in the court following the arrest of two girls in Maharashtra by Thane Police in November 2012 over a Facebook 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.
Criticism
The problem was with the vagueness about what is “offensive”.
The word having a very wide connotation, was open to distinctive, varied interpretations.
It was seen as subjective, and what might have been innocuous for one person, could lead to a complaint from someone else and, consequently, an arrest under Section 66A if the police prima facie accepted the latter person’s view.
While the objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media, the petitioners argued that Section 66A came with extremely wide parameters, which allowed whimsical interpretations by law enforcement agencies.
Most of the terms used in the section had not been specifically defined under the Act, and the petitions argued that the law was a potential tool to gag legitimate free speech online, and to curtail freedom of speech and expression guaranteed under the Constitution, going far beyond the ambit of “reasonable restrictions” on that freedom.
Supreme court intervention
Justices J. Chelameswar and R.F. Nariman ruled in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).”
Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.
Section 66A of the Information Technology Act is unconstitutional in its entirety, the Supreme Court ruled while striking down a “draconian” provision that had led to the arrests of many people for posting content deemed to be “allegedly objectionable” on the Internet.
According to the Supreme Court, the definition of offences under the provision was
“open-ended and undefined”, and thus prone to be misused by the law enforcement agencies.
The decision was considered a landmark judicial pushback against state encroachment on the freedom of speech and expression. “Section 66A is cast so widely that virtually any opinion on any subject would be covered by it …and if it is to withstand the test of constitutionality, the chilling e ect on free speech would be total,” the court said.
The bench also read down Section 79– now at the centre of the ongoing
“intermediary liability” battle between the Centre and micro-blogging platform Twitter– defining key rules for the relationship between governments and commercial internet platforms.
Section 79 says that any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.
Section 66A is clearly violative of Articles 19 (free speech) and 21 (right to life) of the Constitution.
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