The Fall of 66A

As many of you must have heard by now, Section 66A of the IT Act has been struck down by the Supreme Court. This article is to try and explain to those less aware about it, the significance of this event, the history of the section, and why its demise is being widely celebrated.

The section makes criminally liable the act of sending information through a computer system which is “grossly offensive”, “false and meant for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”, or “meant to deceive or mislead the recipient about the origin of such messages”. Even at first reading, it strikes as odd that the standards set for a section imposing criminal liability are those such as ‘annoyance, inconvenience’, or ‘offensive’. The punishment seems disproportionate to the assessment of the harm caused. So much so that the Court decided that it was excessive to reasonable restrictions to the right to free speech as envisioned in Article 19(2) of the Constitution.

In the past this section has been used as a tool by the government (UPA as well as NDA) to oppose dissenting voices which used the internet as a medium of spreading their message. A few, but not all of these arrests were backed by a strong social sanction of a large number of people who, erm, ‘helped out’ with the law enforcement in these cases. This certainly includes the case of Kanwal Bharti of UP, who brought up the issue of the arrest of an IAS official and characterised it as a symptoms of Azam Khan’s corrupt network in the government, Khan being a minister of the state. Bharti was violently arrested under the authority of the IT Act. Another incident related to the same politician became one of the trending jokes on twitter to celebrate the death of 66A. A more famous case of the two girls arrested in Mumbai, one who put up a status questioning the strike for Bal Thackeray’s funeral and the other who ‘liked’ the same.

An arrest for a facebook like. Let it sink in for a moment that this has happened in the country. Consider the possibility that it was karma that did India in, not Kohli or the toss (or indeed Sharma). A longer list of such incidents has helpfully been put up over at the Hindustan Times.

Coming to the decision itself, the Court dealt with a number of issues apart from the constitutionality of 66A as well, which I won’t be going into here, but in a nutshell these included midway positions regarding online blocking and intermediary liability. Online blocking continues to be legitimate while requiring reasons for the same to be recorded in writing. Intermediary liability refers to the liability of the hosts of platforms such as Facebook, Google or WordPress for the content that they might include. The relevant section here, 79 of the IT Act, was read down to restrict the liability to cases where there exists a court-ordered takedown notice, or a governmental notification to the said effect.

Finally, the grounds for striking down 66A were three-fold. Firstly, the Court held that the Section failed to create a proximate connection between the restriction of speech and the preservation pf public order as mandated for exception as per Article 19(2). It held that the propagation of an idea remains legitimate, no matter how distasteful, as long as there is no clear and imminent danger or threat caused by the impugned speech. The second ground upheld by the Court was that of vagueness. The vagueness of Section 66A allowed it to be exploited by the authorities and use it in situations not conceived by the lawmakers. Further, this leads to the phenomenon of the ‘chilling effect’, wherein individuals censor their own speech to a greater extent than they normally would in fear of breaking the law and being liable. The final ground of unconstitutionality was over-breadth, which means that the law extended to restricting speech which it was not given permission to by the Constitutional mandate of Article 19(2), which is the Article from which the law originally derived its legitimacy and purpose.



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