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Section 66A of IT Act, 2000: What has changed two years on?

LiveMint logoLiveMint 24-03-2017 Shreeja Sen

New Delhi: Two years ago, on 24 March 2015, online speech or communication got a boost as the Supreme Court declared a draconian provision—Section 66A of the Information Technology Act, 2000—unconstitutional.

It was group of petitions, but the first was filed by then law student Shreya Singhal, granddaughter of late judge Sunanda Bhandare, in light of the arrest of Shaheen Dhada and Rinu Srinivasan. They were arrested under Section 66A for criticizing the shut down of Mumbai after the death of Shiv Sena leader Bal Thackerey on social networking website Facebook.

The case came to be known as Shreya Singhal versus Union of India, now in the annals of history as a landmark decision in the free speech regime.

The court struck down Section 66A of the IT Act for being “open ended, undefined, and vague” and the words used in the text of the provision being “nebulous in meaning”.

The provision was titled “punishment for sending offensive messages through communication service” and included information shared via a “computer resource or a communication device” known to be “false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”.

The wide net cast by the section did not go unnoticed by the apex court which said, “Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net.”

The ruling also read down the ambit of intermediary liability while constitutional validity of Section 69A (power of Central government to block information through any computer resource for public access) and Section 79 (intermediary liability) of the IT Act and the rules made under it.

Two years have passed since the Shreya Singhal decision. The Supreme Court’s history with civil rights (like free speech) was called “chequered and inconsistent” by lawyer Gautam Bhatia, who writes on these issues, in a recent Mint column.

Last year also saw the court upholding the sections from the Indian Penal Code which punish defamation with up to two years imprisonment.

“In Section 66A, there was immediate relief to a lot of people because it was struck down. Also the ruling with respect to intermediary rules has been immensely beneficial for free speech. However, there are points of concern given that the Supreme Court itself is applying the ruling inconsistently and not expanding or following the course set by it,” said lawyer Apar Gupta, who also represented the non-profit People’s Union for Civil Liberties, a petitioner in the batch of cases with the Shreya Singhal case.

As an example, Gupta referred to a recent interim order by the apex court directing intermediaries to have an in-house mechanism for screening of search results. “It seems to conflict with the Shreya Singhal case,” he said.

The manner in which courts have handled issues of free speech and access to information does not augur well. Gupta said, “At the very least it shows inconsistency by the court and otherwise it shows that Shreya Singhal may be a case in isolation. It undermines the significance of the case.”

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