Was striking down of Section 66A Correct?

The decision  of the Supreme Court of India [Writ Petition(criminal) No 167 of 2012]  in scrapping Section 66A of Information Technology Act has received accolades from many. It is accepted that there is no debate as to whether  Freedom of Expression is required or not. It  is a right we all love and thrive from.  We endorse every bit of support that the judgement expresses for protecting the “Right to Freedom of Expression” under Article 19(1) of our constitution.

It was also great to see that the decision brought relief to persons like the Palghar girls, Cartoonist Aseem Trivedi, Professor Mahapatra, Ravi Srinivasan and others who were arrested by Police at different points of time for their political comments opposing politicians. They were wronged by the Police and Politicians with the help of Magistrates who did not apply their mid and committed them to custody initially without rhyme or reason.

But in providing  that relief , was it necessary to blame Section 66A and scrap it? Was it necessary? Was it Correct? … This is the debate of the day.

Was Scrapping of Section 66A necessary?

What did the striking down of Section 66A achieve?.  It has made all the cases filed against the petitioners to the Supreme Court case infructuous. Most of the petitioners by this time had already obtained relief and hence the decision was only of academic interest to them. But it can prevent similar harassment in future.

This effect could have also been achieved by the Supreme Court expressing that the action taken by the Police were blatantly wrong, indicated misuse of law and constituted violation of human rights. It could have ordered disciplinary action against all the police personnel who were responsible for the misuse.

This would have had a necessary chilling effect to prevent Police from indulging in similar excesses in future.

In our opinion therefore, the striking down of Section 66A was not essential to provide relief to the petitioners or to prevent similar happenings in future.

Was striking down of Section 66A Correct?

The majority of opinion expressed so far by the experts in law as well as members of the public have been that the action was correct. However we feel that the striking down of the section cannot be endorsed just because numbers are on that side. We need to debate whether the Court came to this decision for the right reasons.

Our point of view is that the striking down of the section was not based on correct reasons and that it has its own adverse impact on the responsible use of Cyber space.

Our main contention is that Section 66A was not enacted to address any of the issues that the petitioners brought before the Court and the section had been used by Police either by mistake or deliberately to fix the accused into an offence under which they could be arrested in the hope that Magistrates would not grant immediate relief. Hence while providing relief to them, ascribing injustice done to them to the presence of the section was wrong. The injustice should have been ascribed to the tendency of the Police to toe the line of the political bosses and harass common people, ignorance of the Police, Politicians, advocates and the Magistrates involved in these incidents.

We invite a debate on this issue across the Country and in the media.

I am happy to know that Cyber Society of India, (CySI)Chennai has contemplated organizing a seminar on this topic at Chennai probably on April 11, 2015.

Any body who wish to contribute papers in the seminar can contact the office bearers of CySI at www.cysi.in


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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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