Section 66A: Why this Judgement is not a “Landmark Judgement” as hailed

The former Law Minister and Karnataka Governor Mr H R Bharadwaj has confirmed what everybody knew that Section 66A was misused wantonly by UPA.

However, the Supreme Court which gave its judgement scrapping the section did not even give a hint that the arrests of the petitioners who had brought the case on constitutionality of the section was caused not by the content of the section but by the mis-interpretation of the content.

In the end the judgement appeared an indictment of the current BJP led Government since they had submitted the latest affidavit trying to save the section. The media which is only interested in stoking up the controversies also was happy that the current Government which they dislike for other reasons was shown in bad light.

The truth however is that Section 66A was drafted to cover offences committed with the use of E Mails and SMS messages which was not clearly covered under ITA 2000. The standing committee which cleared ITA Amendment Bill 2008 had no idea that the section would be misused by politicians and heap blame on the drafting team. In fact the persons who drafted the section had actually lifted the clause from the UK statute where it has even been tested in the Courts.

The famous Paul Chambers case in which UK Police had launched action on a person who had expressed his frustration on the closure of the airport because of weather with the words ” “Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together, otherwise I’m blowing the airport sky high!!”, examined in detail the interpretation of the words such as “Offensive” vs “Grossly offensive” etc.

Refer Paul Chamber Judgement details here

 It also concluded that words such as “Menacing” should be seen in the relative context of the impact it causes on the audience. The final verdict on this case was delivered after two appeals and finally the Court quashed the conviction and brought not only justice but also clarity to law. Similar provisions which require the law to be interpreted based on the facts and circumstances of the case and not merely on the literal meaning of the words are there in both ITA 2000/8 under Section 67 and also Section 292 of IPC. If Indian law is capable of interpreting such vagueness as available under other sections, it is strange that the Court came to a conclusion that only Section 66A is not to be allowed to exist because it is “Vague”.

The honourable Judiciary in India must note that definitely the content of law on the basis of which the Paul Chamber case was decided was in fact as vague as what our Courts were confronted with in the Shreya Singhal petition but the interpretation given by a competent court after due consideration of all circumstances including the words used in the statute and the practice of the community brought clarity to law.

Though the facts of this case appear to have been brought to the notice of the Court, the Court decided to reject the argument and proceed with its decision to scrap the section.

The Paul Chamber  is the real land mark judgement which all of us had to refer to in the case of the Section 66A. Even the Judges should have given due credit to the findings of this case.

The current judgement which has been hailed by many as a “Land Mark Judgement protecting the democratic principles” is actually a judgement that reflects a lack of desire by the judiciary to discharge its responsibility to read down a new law. Yes it would be considered as a precedent for some time. Hopefully there will be other occasions when this case law would be over turned.


Also Refer: The following article tries to capture how law is evolving in UK because of a series of Court decisions. : Refer: Twitter Users: A Guide to the Law”

Also See: Experts stress need to relook…. 

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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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