Section 66A struck down

Finally Supreme Court has struck down Section 66A as “Unconstitutional”. At the same time it has upheld the validity of Section 69 and Section 79 (intermediary rules).

COPY OF SUPREME COURT JUDGEMENT

This has been hailed as a victory for the free speech. I do agree that in the case of those who were wrongly booked under Section 66A, it is a huge relief. This includes people like Aseem Trivedi, Ravi Srinivasan and others who were victimized for political reasons.

However the perception that Section 66A was draconian was a creation of the Police and Politicians and what has followed as a Supreme Court decision is a vindication of this perception.

It is unfortunate that the Supreme Court has not considered the section with due consideration to other aspects of the section such as Cyber Bullying, Cyber Stalking , Phishing etc which were also part of the section. The Government has also failed to put its views properly because there was no proper conviction behind their arguments.

While I fully endorse the free speech rights, what I oppose is the view that Section 66A was meant to curb free speech. This will create a wrong precedent that whenever Police donot understand a provision of law and mis apply it, there will be demand for removal of the law itself.

We shall debate the issue in greater detail once more information becomes available.

Naavi

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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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2 Responses to Section 66A struck down

  1. Naresh PC says:

    I disagree. If the law was intended to guard against cyber crimes, then it should have been scoped out as such. The language is the section is indeed vague and broad, which makes it ripe for misuse by the police or politicians. Let’s admit it. The Indian state does not seem to be strong and secure enough in exercising its discretion. Otherwise it wouldn’t be hauling up people for silly things like posts or worse, likes on facebook. Given that context, writing broadly-defined laws are hardly helpful. Lawmakers need to consider the effects of law in practice, not just on paper.

    In my opinion, doing away with section 66A (or whatever the legal term is), is wholly insufficient because it does not address the basic problem. That is, the “reasonable restrictions” or Article 19. Under the guise of reasonable restrictions, the state can justify virtually anything as long as the court is willing to play ball. The court, even the so-called Supreme Court, has shown time and again that it isn’t above playing politics or worse, sacrificing rational thinking and legal principles to justify its prejudiced notions.

    So good riddance to section 66A. And I hope that we will live to see the day when the reasonable restrictions clause is junked.

    • I thank you for posting your view. My response is as follows.
      Should we do away with “Reasonable Restrictions Clause”? is a bigger debate. In the days of Internet and Media being used for promotion of terrorism, it is difficult to support this idealistic thought despite misuse such as Snowden revelations. Sec 66A was also amenable for misuse and was without doubt misused time and again. There was definitely a need to prevent the misuse.
      But was there a need to scrap the section? My opinion is clear. It was not a correct decision to scrap the section. Supreme Court has adopted a surprisingly vindictive view on the section and singled it out to heap needless allegations and discredit the section.
      The so called “Vagueness” in basic legal provisions is unavoidable and we will be dishonest if we think that we will eliminate vagueness and make every section of any law precise. This is not mathematics. For example let’s take the word “Unauthorized Access”. Is it not vague enough to be misused?. Take a look at Section 66F particularly the Part B in which “Contempt of Court” is mentioned as part of “Cyber Terorism”. The Court did refer to this section but did not comment on the vagueness.
      Why this differentiated treatment?
      My contention is that the decision to scrap Section 66A was a populist move playing to the galleries. It ofcourse helps in projecting an image of “Indian Courts are Firmly behind democratic principles”. But behind this heroism it hides the inability of the Court to find a solution to the problem beyond throwing out the section.
      The more difficult task which the Court should have done and has deliberately avoided is to “read down” the section and set guidelines against misuse of law by Police-Politician nexus. I donot accept the argument that it was not possible to “read down”, “not possible to look at the section in parts and correct only objectionable parts”, “Not the Court’s duty to rewrite the law” etc…. Courts do this all the time particularly at the Supreme Court and it has conveniently chosen not to do so in this particular case.
      After the momentary glory wears off, we will have more cases where the Police-Politician nexus may book false cases under more stringent provisions such as Section 66F. Then this judgement will come to haunt us.
      Today may not be a good day for contrarians to express their views. Naavi.org has always stood behind the Aseem Trivedis and other victims. We also highly respect the highest Court of the land and the fact that it places value on democratic principles. But this does not mean that we will blindly support the means used.. to scrap Section 66A when it was sufficient to force addition of some clarifications.

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