AN UNDEAD LAW : SECTION 66A OF INFORMATION TECHNOLOGY ACT, 2000

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ABSTRACT :

In the previous decade,  the Information Technology sector has witnessed an overwhelming enlargement in India. Criminals additionally give rise to evolved to work the internet as an aptitude mode for committing a crime. The information Technology Act play in is one of the nearly all crucial acts passed by the legislative council in direction to safety test the crimes in perspective of exhaust of internet. The original Act passed in 2000 and its later amendments introduced a mixture of provisions to arrangement with new categories of offences. Since the ratification of the Act, nearby has been a bawl about its shortcomings and exploitation by the authorities. The section 66A, which was arguably the largely changed section, was quashed by the Supreme court of India on March 24, 2015 to shelter the Right to freedom of speech and expression after a PIL was filed by Shreya Singhal[1] questioning the constitutionality of the section. The Supreme court found that, even after 6 years, cases are being filed by the police under section 66A. This paper will explore the explanation of why after 6 year, cases are filed. This article also concluded about sec. 66A of Information Technology Act, 2000.

INTRODUCTION :

The Government of India formed an initial draft of the legislation and was defined as the “E Commerce Act of 1998”. afterwards, due to other innovations in the field, the Ministry of Information and Technology was presumed who took up the deed of completing the bill. The new document was known as the Information Technology Act 1999. The draft bill was located for discussion in Parliament in December 1999 and was passed in May 2000. The act was notified after the permission of the President on June 9, 2000. The Act of 2000 focused mainly upon electronic commerce. It dealt with questions like digital signatures, electronic filings, security of electronic data, etc. The objective was to make online trade transparent and secure. The law was also put in place to assure that the data available in electronic form is not misused.

When the Act was enlightened in 2000, the IT sector was just opening its wings in India. No one could have forecasted the boom that it saw within 5 years wrapping towns, villages, and cities all across India. No admiration the topic of cybercrime was not thought of in downward in the 2000 Act. Only passing contexts to cybercrime was made. After a great cry on this flaw of the Act, a vital amendment was made in 2008 which enveloped a broad and diverse array of cybercrimes. However, it must be well-known that this amendment of 2008 was declared as a knee jerk reaction to the terrorist attack in Mumbai on November 26, 2008. The rules in the amendment were neither well thought, nor well debated, to say the least. The provisions associated in the act had opacities over implementation and interpretation. Experts also say that the act is not capable enough to fight cybercrime per se.

After the amendment, Section 66A was the vastly debated and criticized section of the IT Act for its vague wording and misuse. Some terms like ‘grossly offensive, ‘insult’, etc. were loosely practiced in the Section. Laws are made to safeguard the general public from culprits and give justice if any act opposite the law is committed. But in case of this section the number of cases filled were more from the side of the government opposite to critical comments made on its policies or decisions. The right to free speech was harshly challenged. The number of cases filed under this section on wrong grounds increased strongly. This is when the apex Court stepped in to examine the constitutional validity of the law. Considering the argument that Section 66A was indeed rejecting the constitutional right to free speech, the supreme court struck down the rule on 24th March, 2015.

WHY THE SECTION 66A IN THE LIMELIGHT?

When the Supreme Court in March 2015, declared invalid Section 66A of Information Technology Act, 2000, it has been considered as the end of what was called a ‘draconian’ rule. Six years down the line, the Supreme Court discovered that the law was still being put into effect by police in what it called ‘a shocking state of affair’. The Supreme Court’s led the Centre to bid all states and union territories not to register case under the cancelled section 66A of the Information Technology Act. The union home ministry asked state government and union territories administration to roll back such cases instantly if registered under the cancelled act.

This problem came in light, after non-government organization, the People’s Union for Civil Liberties[2] approached the Supreme Court with grievance the Section 66A was still enforced by the police and in some trial court. The petitioner said almost 745 cases were still effectual or under-trial before district courts in 11 states. In all these cases, the accused person are being litigated for offences under a law that was declared unconstitutional six years ago.

Incidentally, a identical warning had been advised by the central government two years before the disputable Section 66A was declared unconstitutional. The law had come under strong excoriation by civil society and also parliamentarians.

Back then the government had advised “due diligence and care” in evoking Section 66A “while dealing with cases arising of the alleged illegal use of cyberspace”.

SECTION 66A OF INFORMATION TECHNOLOGY ACT,2000:

Introduced by the UPA command in 2008, the amendment to the IT Act, 2000, gave the authority prerogative to arrest and imprison an characteristic for allegedly “offensive and menacing” online posts, and was conceded without passed in Parliament.

Section 66A made, delivering of derogatory message using a laptop/computer/ mobile or any communication device, a crime. The law police had to settle on whether an in details sent in the message eligible as derogatory/offensive or not.

To be booked under section 66A, the details in the message had to be:

  • Enormously offensive / derogatory ;
  • False and destined for the point of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or cruelly will ;
  • Meant to mislead or give the wrong impression about the recipient about the derivation of such messages.

The crime was punishable with three-year imprisonment and fine.

WHY WAS IT STUCK DOWN?

One of the PILs was filed by Shreya Singhal, so therefore a 21-year-old rule law student in Delhi. She challenged section 66A in conflict that it confined freedom of speech and expression and infringed fundamental rights provided under Articles 14, 19 and 21 of the Constitution.

Shreya Singhal vs Union of India[3]

Facts : In 2012, two girls named as Rinu Srinivasan and Shaheen Dhada, was arrested by the Mumbai police. The arrest was prepared for expressing their disapproval at a bandh which was called in by the people of Shiv Sena people in Maharashtra for the confrontation of Shiv Sena chief Bal Thackery’s death. The accusation prepared against the petitioners was that they were complex in posting their comments on the Facebook and liking the comments at the identical time which resulted in extensive broadcast protest. The petitioners by the method of public Interest, filed the writ petition under Article-32 of the Constitution asserting that section 66A of IT Act 2000 infringes of Right of freedom of speech and expression of an individual.

Judgment : The court held that the rule of section 66A of IT Act is offensive to the Article 19(1)(a) and all thing recognized it is a unpredictable rule which un roots the privilege of country to have the right to speech and expression of their potential on web. All things recognized the arrangement respective is unavoidably invalid and accordingly struck down totally.

The apex Court early this month issued a notice to the Centre on the use of Section 66A of the IT Act and said that it was shocking that the judgment striking down the law has not been implemented even now.

IS THIS JUDGEMENT EFFECTIVE OR NOT?

It has been 6 year since this section was stuck down, but the police in different states still arresting people under this section. In the present time, when information spread like a fire, the Indian police still appear to have no information that section 66A does not exist in the law book and that is illegal to arrest people under this non-existing law.

In march 2017, two year after the verdict, one Zakir Ali Tyagi[4], an 18 year old from Muzaffarnagar , Uttar Pradesh was arrested under section 66A of information technology Act, 2000 for posting a comment on Uttar Pradesh CM Yogi Adityanath.

A Chemistry professor of Jadavpur University, Prof. Ambikesh Mahapatra,[5] was arrested under Section 66 A of IT Act in 2012. The trial in his case is yet going on under Section 66 A of the IT Act, while liabilities under all other provisions have been dropped. 

Three years down the line since the verdict, in October 2018, one Veeramreddy Suman Reddy was arrested under Section 66A in Guntur, Andhra Pradesh. 

In May 2019, BJP worker Priyanka Sharma was arrested and remanded to judicial custody. The charges against her cover one under Section 66A. The Supreme Court had to get involve in this matter as well to ensure her instant release.

In January, 2019, People’s Union for Civil Liberties, one of the real petitioners in the Shreya Singhal Case, reached the Supreme Court highlighting the study and applying for directions to ascertain implementation of the Court’s original verdict.

In a counter-affidavit, the Union of India comprehensive steps it had taken to make awareness on Section 66A. This included a letter the Government wrote on 11th January, 2019 and then a remembrancer on 14th January, 2019 to different state governments asking them to present data on Section 66A cases and also asking them to close them. Some states answered.

The petitioners said even the trial courts were not actively executing the judgment indicating that even the judges of the lower courts were not alert about the landmark Supreme Court verdict.

The NGO has request the supreme court to direct the government, via the National Crime Records Bureau or any other agency, to gather all the data/information with regard to FIRs/investigations under Section 66A and under trial cases in district and High Courts.

 The recent review note of the Supreme Court came on the very same petition that the PUCL filed. The Centre afterward sent a reminder to all states and Union Territories asking them to bury the law that died six years ago.

For illustration, Kerala described that there were 19 cases that were filed after section 66A was held to be unconstitutional and they would be closing all of them. The Court by verdict dated February 15, 2019, not only indicated  that all pending cases under section 66A be closed but also that no fresh charges may be registered. The SC furthermore directed that  the Shreya Singhal verdict be sent to all courts in the country, to senior administrative officers and director generals of police.

EFFECT OF CASES TO BE REGISTERED UNDER UNCONSTITUTIONAL SECTIONS :

Effect on government :

  • Unnecessary burden on the court and waste of time;
  • All this brings disrepute to the judicial system;
  • On coming to the notice of the NGO, files a petition in the court so that the time and menpower of the court and the NGO is unnecessarily wasted;
  • financial burden on the state.

Effect on Aggrieved party :

  • Social image would be defamed which has a negative effect on him and his entire family;
  • The expenses incurred for fighting the case are very high, which hurts the financial condition of the person;
  • cause physical harm;
  • It may have a negative impact on the life of the aggrieved person so that the condition of his life and that of his family may change.
  •  

WHAT SHOULD BE DO? :

The following objective needs to be acquired to put things in order:

(i) The Ministry of Home Affairs, UOI must issue compulsory advisories with instant effect to all States/ UTs and through them to all police stations.

(ii) Wide dissemination of the advisory be done so that the public at large is also aware of the steps taken by the governments.

(iii) Instant action must be taken against the blundering police personnel and such action must also be extensively publicized.

(iv) The government must take all important steps to assure that the public at large does not live in fear.

CONCLUSION :

I surprise why it’s so hard for our police to know and follow the law laid down by the supreme court of the india, or for that matter any court. Is it a case of juridical illiteracy, where unless they are not make aware of judgments of the courts by official communications, they can’t take notice of the same?

It is again a matter of serious matter if no official notice is issued by the Central Government and circulated to all police stations immediately after the judgment. How would the police hold law and order if they themselves aren’t aware of the same? Why should a common man who is guaranteed various fundamental rights including the Right of Freedom of Speech suffer captivity in a police station even for a moment simply because our police is ill-informed or least become disconcerted with the change of juridical position?

Do the governments need a specific notice by the courts to circulate the order? Isn’t it the obligation of the government to assure compliance of the law laid down by the court in letter and spirit? It is high time that the issue is deliberated upon and requisite steps are taken to assure that no one suffers any police action under Section 66A of the IT Act, which was declared unconstitutional some six years back. 

The law has been broadly  to infest netizens who make Innocuous on different social media in utilize of their freedom of speech. Hardly any government escape the stigma misusing the law to set up scores with political competitor and dissenter.

Section 66A of the IT Act and other unconstitutional sections of IPC can be disabled in the Crime Criminal Tracking Network System (CCTNS). So that the FIR is not registered under these sections in the system. Government of India has implemented CCTNS Project in many states in the last several years. States can re-enroll in CCTNS  in online mode or offline mode. The CCTNS also handy when Supreme Court ordered to upload FIR on official site within 24-72 hours. In Chhattisgarh, these unconstitutional streams have been disabled in the system itself. Other states can also follow this.

It has to be ensured that the fee is not registered under the unconstitutional section And no one should be in trouble because of the states or officials.


[1] Shreya singhal  v. Union of India

[2] People’s Union for Civil Liberties v. Union of India

[3] AIR 2015 SC 1523

[4] Zakir Ali Tyagi v. State of up

[5] Ambikesh mahapatra &Anr vs State of west Bengal &Ors.

Author: Shneha Singh

Editor: Kanishka VaishSenior Editor, LexLife India.

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