Issue related to section 66A of IT Act 2000 and other provisions of IT Act 2000

Introduction

The Information Technology Act, of 2000 (IT Act) is the primary legislation that regulates the use of computers, electronic devices and communication networks in India. The IT Act aims to provide legal recognition for electronic transactions, digital signatures, electronic governance, cyber security and cyber crimes. The IT Act has extra-territorial jurisdiction, i.e., it applies to cyber offences committed outside India if a system or a network from India is involved in the said crime, irrespective of the offender’s nationality.

Section 66A of IT Act 2000

Section 66A of the IT Act was introduced by an amendment in 2009. It made it a punishable offence for any person to send offensive messages through communication devices and computers. The section defined offensive messages as those that are:

• Grossly offensive or have a menacing character
• False or misleading and meant to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will
• Meant to deceive or mislead the recipient about the origin of such messages

The punishment for violating this section was imprisonment for up to three years and a fine.

Controversies and Criticisms of Section 66A

Section 66A of the IT Act faced severe criticism from various quarters for being vague, overbroad and violative of the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. The section was challenged in several cases before the courts for its arbitrary and unreasonable application. Some of the instances where Section 66A was invoked are:

• In 2012, two girls were arrested in Maharashtra for posting and liking a Facebook comment criticising the shutdown of Mumbai after the death of Shiv Sena leader Bal Thackeray.
• In 2013, a professor was arrested in West Bengal for forwarding a cartoon on Chief Minister Mamata Banerjee.
• In 2014, a student was arrested in Uttar Pradesh for posting a comment on Facebook against senior Samajwadi Party leader Azam Khan.
• In 2015, a class XI student was arrested in Uttar Pradesh for posting an allegedly objectionable comment on Facebook against senior BJP leader L.K. Advani.

These and many other cases raised serious concerns about the misuse and abuse of Section 66A by the authorities and the chilling effect it had on the online free speech of citizens.

Supreme Court Judgement on Section 66A

In 2015, the Supreme Court of India delivered a landmark judgement in Shreya Singhal v. Union of India case. The case was filed as a public interest litigation (PIL) by Shreya Singhal, a law student, challenging the constitutionality of Section 66A of the IT Act. The Supreme Court struck down Section 66A as unconstitutional and void on the following grounds:

• The section violated Article 19(1)(a) of the Constitution as it imposed unreasonable restrictions on the freedom of speech and expression online.
• The section violated Article 14 of the Constitution as it created an arbitrary distinction between online and offline speech and did not have any intelligible differentia or rational nexus with the object sought to be achieved.
• The section violated Article 21 of the Constitution as it did not have any procedural safeguards to prevent its misuse and abuse by the authorities.
• The section used vague and undefined terms such as “grossly offensive”, “menacing”, “annoyance”, “inconvenience” etc. which gave wide discretion to the authorities to interpret them subjectively and arbitrarily.
• The section did not have any nexus with public order, decency or morality as it criminalised even private communications between individuals that did not affect any third party.

The Supreme Court held that Section 66A was not saved by any of the reasonable restrictions under Article 19(2) of the Constitution such as sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality or about contempt of court, defamation or incitement to an offence. The Supreme Court also observed that Section 66A had a chilling effect on the legitimate exercise of online free speech by citizens as they feared prosecution under this section.

The Supreme Court also clarified that other provisions of the IT Act such as Section 69A (power to block access to information), Section 79 (intermediary liability) and Section 69 (power to intercept, monitor or decrypt information) were valid and constitutional subject to certain guidelines and safeguards.

Other Provisions of IT Act 2000

Apart from Section 66A, the IT Act 2000 contains several other provisions that deal with various aspects of information technology and cyber law. Some of the important provisions are:

Section	Description
3	Authentication of electronic records by digital signatures
3A	Electronic signature as a mode of authentication
4	Legal recognition of electronic records
5	Legal recognition of electronic signatures
6	Use of electronic records and electronic signatures in government and its agencies
7	Retention of electronic records
8	Publication of rules, regulations, etc., in the electronic gazette
10A	Validity of contracts formed through electronic means
11	Attribution of electronic records
12	Acknowledgement of receipt of electronic record
13	Time and place of despatch and receipt of electronic record
14	Secure electronic record
15	Secure electronic signature
16	Security procedures and practices
17-34	Regulation of certifying authorities for issuing digital signature certificates and electronic signature certificates
35-39	Electronic signature certificates and their issuance, suspension and revocation
40-42	Duties of subscribers of digital signature certificates and electronic signature certificates
43-47	Penalties, compensation and adjudication for damage to the computer, computer system, etc. and failure to protect data or furnish information, etc.
48-64B	Establishment, powers and functions of Cyber Appellate Tribunal and appeal to High Court
65-67C	Offences relating to tampering with computer source documents, hacking, publishing or transmitting obscene material or sexually explicit material or material depicting children in sexually explicit acts in electronic form, etc.
68-69B	Powers of Controller, Central Government and authorised officers to issue directions, access information, monitor or decrypt information, block access to information, etc. in the interest of the sovereignty, integrity, security, defence or friendly relations of India or for preventing incitement to the commission of an offence or investigation of an offence
70-70B	Protected systems, critical information infrastructure, National Critical Information Infrastructure Protection Centre (NCIIPC) and their protection and security measures
71-72A	Penalties for misrepresentation, breach of confidentiality and privacy, disclosure of information in breach of lawful contract, etc.
73-74	Digital signature certificates to be evidence and presumption as to digital signatures and electronic signatures
75-78	Extra-territorial jurisdiction, offences by companies, investigation of offences and power to search or arrest without warrant

Conclusion

The IT Act 2000 is comprehensive legislation that covers various aspects of information technology and cyber law in India. It aims to provide legal recognition and security for electronic transactions, digital signatures, electronic governance, cyber security and cyber crimes. However, some provisions of the IT Act such as Section 66A have been challenged and struck down by the Supreme Court for being unconstitutional and violative of the fundamental rights. The IT Act needs to be periodically reviewed and amended to keep pace with the changing technology and emerging challenges in cyberspace.