SEC 66(A), IT Act

The Information Technology (IT) passed in 2000 to provide the legal validity to the transactions in electronic form. This act also helps in reducing the modern phenomena of cyber-crime. After working for nearly nine years legislature amended the act and inserted the section 66(A). This amendment was considered necessary to overcome the challenges of technology and internet. Section 66(A) of the Act criminalizes the sending of offensive messages through a computer or other communication devices. Under this section any person who sends the message in electronic form through communication device is committing a criminal offence if the message is:

• grossly offensive;

• false and meant for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will;

• meant to deceive or mislead the recipient about the origin of such messages, etc, shall be punishable with imprisonment up to three years and with fine.

• Since its insertion this section has attracted many cases related to offensive messages using social media. Frequent use of this section has led to the debate of where the section is valid or not. In the recent past, a few arrests were made under Section 66(A) on the basis of social media posts directed at notable personalities, including politicians. Lot of changes has happened in the working of the section since its insertion in 2009. Central government in a guideline mentioned that prior approval of the Deputy Commissioner or Inspector General of Police was required before a police officer or police station could register a complaint under Section 66(A). Supreme court also said that said provision of prior approval is necessary for proper functioning of this section. Most of the offences that Section 66(A) dealt with were already covered by the Indian Penal Code (IPC), 1860. Also there was inconsistensies between the two laws with respect to the ammount of punishment, for example same offence of threatening someone with injury through email attracts imprisonment of two years under the IPC and three years under the IT Act.

• Present case started with filling of a PIL by Shreya Singhal in November 2012, after the arrest of two Maharastra girls for posting on social media. Various reports have termed punishment under this section as highly disproportionate to the level of offence. Public Interest Litigation (PIL) challenged the section 66(A) on grounds of unconstitutionality. In judgement of present case bench of Justices J. Chelameswar and Rohinton F. Nariman held that “It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.” Bench of Justices J. Chelameswar and Rohinton F. Nariman held that the definition of offences under the provision was “open-ended and undefined”. However SC did no strike down sections 69A and 79 of Information Technology Act, these sections provide for the procedure and safeguards to block certain websites and they also provide liabilities for the intermediaries of content like youtube, facebook etc. While giving the judgement court observed following issues:

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