Options before Government.. after Section 66A being struck down

The two member bench of the Supreme Court of India consisting of honourable Justices J.Chelameswar and R.F.Nariman, struck down Section 66A of ITA 2000/8 on March 24, 2015, in their judgement in the batch of petitions lead by Shreya Singhal Vs Union of India on the grounds of it being anti constitutional.

Though this decision was hailed by many as a victory for free speech, Naavi.org considered that the decision represented a mistake on the part of the bench identifying that Section 66A was responsible for the arrest of some innocent persons in certain cases highlighted by different petitioners which were considered by the Court.

According to our perception, the arrests were made by ignorant, uninformed,unintelligent policemen under political pressure and the  Court was unable to call the bluff of the Policemen. They instead endorsed the correctness of their decision, found all the fault on the presence of the section in the statute and killed it.

The fact that the sudden removal of the section has been greeted  as a “Freedom to Abuse” has created a void in law and could have adverse consequences on India’s progress in the digital space has been well recognized.

We suppose even those who hailed the decision as “Victory for Freedom of Speech” will agree that it was unfortunate that offences such as Cyber stalking, Cyber bullying, Spamming and Phishing have been either removed from the books or have been made dependent on IPC.

I suppose even the honourable judges who gave the judgement should have realized by this time that their decision to refuse reading down and opting for striking down was an unwarranted use of excessive judicial force.

As an academician, I am  still unhappy that Supreme Court made a mistake and that has gone on record as a precedent and will haunt us in the days to come. Certain words which the judgement has said on the “Vice of vagueness”, “Judicially Trained minds coming to dramatically opposite conclusions” , and the debatable approach of the Court ignoring the “intent of a section” as expressed in the title and the words by arbitrary interpretations from the definitions clause will be ringing in the Courts in subsequent proceedings as “Precedents” until such time it is modified in a new Judgement. This will proliferate the effect of an erroneous decision for a long time.

Now the ball is before the Government which has to think of the next steps and determine how to respond to the situation they have been pushed into.

It has been reported that the Ministry of Home in the Union Government has taken the first steps to respond with the formation of an internal committee to consider re drafting the provisions.

See news report

Hopefully the Government will find a quick fix solution since the larger issue of comprehensively amending the ITA 2000/8 will take a long time.

In this connection it is possible that the Government may think of an ordinance to introduce a new Section 66A though the opposition as always may keep objecting for their political reasons.

Though the drafting of a new Section 66A through an ordinance will be an easy option for the Government, the Supreme Court taking up a self review and reading down the section would have been a better option to erase the impression that Supreme Court misread the section and came to a wrong decision which was corrected by the new legislation.

However, in the end, it is the goal attained which is important.. though the means to attain were less optimal….

….(With apologies to Mahatma Gandhi who held the “means” as important as the “goals”)

We therefore welcome the move of the Government and urge it to complete the re drafting of the new Section 66A which should address the concerns related to “Offences committed with Messages sent through internet, Communication devices etc”.

While redrafting, the following explanations can be added to the section

1. This section shall address to information which is sent from one person to another using the medium of  internet or any communication device and shall not include content posted on a website or a blog or social media vehicles.

2. “Information” used in this section shall mean only such information that has an effect to deprave and corrupt the minds of the recipient and incite him to contravene any law in force and not such information which are expressions of scientific, literary or such other matters pertaining to the betterment of society.

3.Nothing in this section shall affect the freedom of speech as guaranteed under the Article 19(1) of the Constitution.

4. Sending a “Grossly Offensive” or “Annoying” message in the context of this section means  intentionally sending any communication with words, silence or otherwise that is intended to cause mental anxiety, mental agony or mental disturbance to the recipient beyond a level of tolerance any ordinary prudent person under similar circumstances is considered capable of tolerating and thereby inciting him to commit an offence.

These explanations could also be presented as an addition to a “suggested new draft” which the Government may submit for a “Curative Petition” before the same bench or for a “Review” before a larger bench of the Supreme Court and if accepted, the need for an ordinance, Bill and its notification would be avoided. If required, the Court can “Read down” the section to incorporate these explanations into the section.

This may be the quick and most efficient solution for the problem that has now arisen.



Also Read : Section 66A of the IT Act likely to be back in softer avatar

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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