By Ravi Boolchandani, Amity Law School, Delhi.
The common presumption for Section 66A is that, it is grossly negative in nature. Many people including learned legal professionals and people from various other professions argue that Section 66A was the murderer of the fundamental right to speech and expression while others say that it acted as an authority to curb unlawful harassing activities.
Just like every coin has two sides, Section 66A is no exception. The first being its darker side, that it invaded a citizen’s right to free speech and expression , its vague nature. Almost everyone is aware of its darker side. The other side being the brighter side that it provided legal recourse against bullying, stalking, threatening through SMS, e-mail, spamming. Very low percentage of people is aware of its brighter side.
The majority of people think that Section 66A was curbing individual’s right to free speech and expression. Many incidents which happened in the past serve as a testimony to the draconian nature of this law.
A businessman in Puducherry was arrested for comments made on twitter against then finance minister P. Chidambaram’s son Karti Chidambaram. The most boiling issue was the arrest of two girls. One of the girls posted a status on Facebook against the closure of the city (Mumbai) on the demise of the Shiv Sena leader Bal Thakrey, the other girl just liked the status and she was arrested too under Section 66A. Most recently, a school student in UP was arrested for making a comment about politician and MP Azam Khan. There are other cases too albeit fewer in number but more than enough to prove the arbitrary nature of this section.
The Darker Side of this section was the main reason for its annulment. The darker side was that the section was very nebulous. It was also very subjective, what I find gravely offensive, some people might not find the same as offensive. Similarly what some people might find threatening or bullying, I might not find those activities as bullying or threatening.
The section was open-ended, it had no demarcation between what is offensive and what is not offensive. Its open-ended nature increased the power of police authorities substantially.
When a bench of Justices J. Chelameshwar and Rohinton F. Nariman was giving this decision it said that Section 66A curbs the “fundamental right to free speech and expression”, also that Section 66A upsets the balance between Right to free speech and expression and the reasonable restrictions that can be imposed on it. There is a very thin demarcation between Right to free speech and expression and its reasonable restrictions. That demarcation should be maintained, individuals must exercise their right to free speech and expression in a reasonable manner. You may discuss or advocate any particular cause as per your own opinion, no matter how good or bad it is but if that discussion or advocacy reaches to the level of incitement then the right can be curbed on the grounds of causing public disorder. Under Section 66a some cases were registered in which the police authorities made bloopers by arresting some persons without any just cause, it was wrong. Due to the vague and open-ended nature of this section, it was difficult to identify what was offensive and what wasn’t offensive. The gamut of this section was greatly undefined. The Supreme Court also said that Section 66A is not definitive in nature and there is no good in using a law of such a nature which doesn’t even defines what offences it includes and what it doesn’t.
On considering these facts in toto, Section 66A was repealed as a result of a petition filed by a Mumbai law student, Shreya Singhal. She filed it at the age of 21 in 2012 after the two young women were arrested for posting comments critical of the total shutdown in Mumbai after the death of Bal Thakrey.
The other side of the Section 66A, its brighter side was unknown to most. It is a noteworthy fact that Section 66A provided legal recourse to threatening, bullying, offending or stalking someone via emails, SMS, online messages, spamming, etc.
There are other laws also which somehow provide legal recourse to these offences and help in blocking the content which is bullying, stalking or threatening someone but the only problem of Section 66A was that it had a provision of arrest (Imprisonment up to 3 years or fine up to 2 lakhs or both). In laws which facilitate arrest, the major responsibility is of the enforcement agencies (Police, etc.) because it’s up to the enforcement agencies that, how meticulously they look upon the incidents, how accurately they identify whether a particular incident comes under Section 66A or not because if they determine it wrongly then it may lead to wrongful arrest of an innocent person and then the basic concept of justice given by Blackstone will collapse per se, i.e. “It is better that ten guilty persons escape than that one innocent suffer”. So if the problem was the enforcement, then perhaps that’s what the court should have focused on.
Some legal experts argue that India’s IT act is weak and static. It is not changing with time but the world is changing at a rapid pace with new types of cyber-crimes emerging every now and then. The people are becoming more and more tech-savvy. The IT act of India doesn’t encompass the new types of ever increasing cyber-crimes. But somehow Section 66A’s open-ended nature left an option open for including such new type of cyber-crimes under the purview of IT act.
For cases of defamation, Section 499 and Section 500 of IPC provide action for defamation in the physical world. Section 4 of IT act says that, physical documents can be treated as electronic information. In simple terms, laws of non-internet world can be applied on internet world. But is it really pragmatic to apply laws of non-internet world on cyber-crimes like bullying, threatening, annoying, offending, stalking someone or hacking into someone’s private account? Cyber-crimes are easily facilitated by the nature of internet. It may be very difficult to apply provisions of non-internet world on internet world. So after the annulment of Section 66a of IT Act, there are almost no provisions left by which cyber-crimes like stalking, bullying, threatening can be treated with severity. The Supreme Court should have acted upon the brighter side too and should have reprimanded the enforcement agencies for the same. One more pertinent point on which many people argued was that the section was grossly misused. But is this the only law which is misused? Many laws are misused particularly Section 498A and Section 375 of IPC. The people, the enforcement agencies misuse it. If any law is being misused, then an alarming question arises, i.e. is the law wrong or its enforcement is poor? The problem is certainly somewhere with its enforcement. Some people argue that lawyers also misuse it but this does not holds true as lawyers just interpret the law differently which is not tantamount to misusing it.
Jeremy Bentham once said, “The power of the lawyer is in the uncertainty of the law”. Indeed yes, the power of every lawyer is in the uncertainty of law and also in how good and different they are in interpreting the law.
The ruling will only mean several steps backward for the government and the country in this aspect.
In conclusion, Section 66A contained both the brighter side and the darker side but for majority of people, the darker side overweighed its brighter side and that was the major reason for which it was repealed. It was grossly misused because it was much undefined. Due to its poor enforcement, vague and subjective nature, it curbed the individual’s right to free speech and expression.
To put it in a nutshell, “the law was not wrong but its enforcement was wrong”.