The last time Ms Sherya Singhal approached the honourable Supreme Court with a PIL to squash Section 66A of ITA 2000/8, she was successful. The Supreme Court obliged her petition and scrapped Section 66A of the Act.
In the process, she exposed the vulnerabilities of the Court in its inability to understand certain aspects of technology particularly when the Attorney General was also not interested in making a fair argument.
It was interesting that the then CJI himself commented at the time of the admission of the case “We were wondering why no body had challenged this so far”, indicating that the Court had pre-determined to a certain extent on what to do.
She also exposed the vulnerability of the system that if a Police Constable makes a wrong interpretation of law, instead of challenging his mistake, the law itself may be removed. The only requirement was to some how link the mistake to Fundamental Rights in the Constitution so that the highest court of the land starts seeing the issue with blinkered vision.
Just to clarify, Section 66A addressed the harmful effect of an electronic message sent through a communication device (Say an E Mail or SMS or even the WhatsApp Message) which could cause annoyance to the recipient. But the Court got convinced that any “Publishing” such as Face Book, Twitter or even a website also came within the purview of the Section though ITA 2000/8 had provided different sections such as Sections 67/67A/67B to address the adverse effects of “Publishing” of obscene information and left out the Defamation issues through electronic documents to be handled by IPC.
The Police in Palghar Facebook case as well as other instances such as Karti Chidambaram’s Twitter related complaint and some cartoonist’s cases involving websites, had booked the FIRs under Section 66A by mistake and this mistaken inclusion of Section 66A became the reason for the litigation that Section 66A violated the Constitutional right of Freedom of speech which reached all the way to the Supreme Court .
In a bid to exhibit its commitment to “Freedom of Expression”, the Court interpreted the provisions of the section as causing a “Chilling Effect” and struck it down. The Court refused to read down the section and insisted that the section has to be removed though a large part of the section also addressed spamming, phishing, cyber bullying and cyber stalking.
Though later other benches of the same Court agreed that Section 66A should be re-introduced with changes, the Government did not make the move since it did not like to open up another debate on curbing of freedom of expression.
In the bargain, “Freedom to Abuse” became “Freedom of Expression”. This will in my opinion remain as one of the dark moments of Cyber Jurisprudence in India.
Now it is reported that Ms Shreya Singhal is likely to approach the Supreme Court this time with an objection to the recent Section 69 related order of the MHA and the Amendments to the Intermediary rules under Section 79.
It would be interesting to note that already two PILs have already been filed on the MHA order and this will be the third PIL. Considering that the last Section 66A Case started with the bench remarking that “We were waiting…” the comments that will come up now at the time of admission are worth watching.
New Intermediary Guidelines… Legitimate and Well within the rights of the Government:
Proactive technology tools to identify violation..new intermediary rules:
New Intermediary Guidelines.. Intermediaries need to have Indian Subsidiaries..:
Intermediary Guidelines.. Who is and who is not an intermediary?:
Draft Intermediary Guidelines 2018… Public Comments invited:
Copy of the guidelines:
P.S: The last date for submission of comments extended upto 31st January 2019. The comments would be put up on the website on 4th February and counter comments accepted upto 14th February 2019… http://meity.gov.in/writereaddata/files/Extention_Guidelines_2018.pdf