1Political Science

DR. RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW.

Subject: - Political Science

Project on: -

The Ambiguous Sections of the Information

Technology Act, 2008: Curbing freedom of
Speech
SUBMITTED TO: SUBMITTED BY:
Dr. Monika Srivastava Deepti Bajpai

Assistant Professor B.A. LL.B (2nd Semester)

(Political Science) ROLL NUMBER: 48

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Acknowledgement

I am thankful to Ma’am for letting me take this important issue as my

project and also for guiding my way through it. I am also thankful to her
for extending the submission date for me, and encouraging me to make
this with great zeal and enthusiasm.

I am also thankful to the library staff, and my college which has given
me such a good and useful library, which has helped me throughout the
making of this project.

I would also like to present my hearties gratitude to my friends and

classmates for their views and support throughout the time.

Deepti Bajpai
3Political Science

INDEX
SR NO CHAPTER
1.) INTRODUCTION TO THE SECTION 66A OF THE INFORMATION
TECHNOLOGY ACT , 2008
a. Section 66a from the IT Act, 2008
b. Explanation
2.) PROBLEMS WITH THE LAW
a. Vaguely worded
b. Power to the Police
c. Shoddy legislation
d. Unconstitutional curbs
e. Constitutional curbs
f. Alternative laws
g. Breach of Fundamental Rights
3.) SECTION 66A OF IT ACT VIOLATES THE CONSTITUTION OF INDIA
4.) THE VARIOUS CASES UNDER SECTION 66A
a. Asseem Trivedi , Cartoonist
b. Ambikesh Mahapatra and a Kochi businessman
c. Two women arrested for Facebook post on Mumbai shutdown then
granted bail.
d. Various fake Facebook profile cases.
5.) PIL ON THE LAW
6.) GOVERNMENTS STAND ON THE LAW
7.) OTHER CONTROVERSIAL SECTIONS OF THE ACT
a. Section 80 of Indian IT Act
b. Section 67 of Indian IT Act
8.) GUIDELINES ISSUED BY THE GOVERNMENT

CONCLUSION

BIBLIOGRAPHY
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5Political Science

INTRODUCTION TO THE SECTION 66A OF THE

INFORMATION TECHNOLOGY ACT , 2008
Section 66A of the Information Technology Act, which prescribes 'punishment for sending
offensive messages through communication service, etc.' is widely held by lawyers and legal
academics to be unconstitutional .

66A. Punishment for sending offensive messages through communication service, etc.In
February 2009 the IT Amendment Act, 2008 was hurriedly passed on December 22, 2008 by the
Lok Sabha, and a day after by the Rajya Sabha but before it was notified on October 27, 2009).

Any person who sends, by means of a computer resource or a communication device,

(a)    information that is grossly offensive or has menacing character; or

(b)    information which he knows to be false, but for the purpose of causing annoyance,
inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill
will, persistently makes by making use of such computer resource or a communication device,

(c)           any electronic mail or electronic mail message for the purpose of causing
annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the
origin of such messages

shall be punishable with imprisonment for a term which may extend to three years and with fine.
6Political Science

Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic Mail
Message" means a message or information created or transmitted or received on a computer,
computer system, computer resource or communication device including attachments in text,
image, audio, video and any other electronic record, which may be transmitted with the message.

 The present section 66 (A) was introduced by the 2008 amendments. It was criticized at that
stage as being vague and having wide interpretation, but the government failed to correct the
anomaly when it issued various clarificatory rules and guidelines under the IT Act 2008. The
result is before all of us today. There is more confusion than clarification and contextual terms in
section 66 such as ‘offensive’ and ‘menacing’ that are being widely interpreted to the wimps and
fantasies and convenience of local policemen.
7Political Science

PROBLEMS WITH THE LAW

While proving false message is relatively easy, but the real question is ‘What constitutes an
electronic message to be offensive or of menacing character?’ Indian law has not defined
anywhere the meaning of ‘offensive’ or ‘menacing’. As per the laws of general English, a person
receiving message should find that to be offensive to apply this provision, so its interpretation
becomes relative and differs from person to person.

Cyber crimes like, intentionally sending SPAM messages, phishing emails, threatening
messages, etc. can also be punished under this section. This section is also applied along with
Section 67 or 67B which is related to cyber and child pornography respectively.

Any content online if considered ‘grossly offensive’ or has ‘menacing character’, or electronic
mail for the purpose of causing annoyance or inconvenience’ can attract this non-bailable offence
punishable with imprisonment up to three years. This has a great potential to misuse. It provides
a weapon in the hands of authorities and ordinary persons who started exercising their choice in
visible social medium are made vulnerable and nips their free speech in the bud besides having
enough potential to extend this draconian long arm to reach ‘press’ and ‘electronic media’ also.

The case is not just that these terms such as “causing annoyance”, “causing inconvenience”,
“causing obstruction”, “causing ill will” are vague and ambiguous, and can be interpreted in
multiple ways by those in power, but why should anyone be jailed for saying such things. To
whom it should have caused annoyance to become a crime? If the complainant is minister, he
suffers any humiliation, annoyance because of some comment, should commentator be jailed? Is
that the meaning of ‘free speech’ in political democracy? All these expressions do not reflect any
criminality. Anger, insult, annoyance, satire which borders defamation, injury to pride, provoking
comments is general communications between friends and relatives also. They naturally happen
and they are part of natural free human conduct and shall happen every day in between rival
8Political Science

political parties in our representative democracy. They should happen.  For example,
Mr.ArvindKejriwal, who floated an AamAadmi Party, has already ‘annoyed’ Congress party,
caused ‘inconvenience’ to NitinGadkari, had been ‘grossly offensive’ to RoberVadra,
‘obstructed’ Ambanis etc. All his allegations appeared in all forms of media, including websites
of printed newspapers and magazines, which can be accessed through any search engine. In fact
Google links all those newsitems through its server with browsing netizens. Does it mean when
every time someone searched and accessed news of Kejriwal allegations, the Google operators
have to go to three years of jail? Does that also be the fate of every newspaper that carried the
news item and kept it in its website to be accessed through any search engine?

In fact, every day newspaper annoys someone with satire, criticism, sometimes even with
defamatory content or explains how a judgment of Supreme Court is wrong or questions
parliamentary practices.  They cannot be arrested and prosecuted. If Section 66A of Information
Technology Act, 2000 as amended in 2008, enables state to send citizens up to three year jail
term it is grossly offensive of Indian Constitution, highly inconvenient to freedom of speech,
absolutely cause annoyance to any democracy the state and center have to allocate thousands of
crores of rupees to build jails in every town and village to accommodate offenders as every man
and woman in street can be accused under S 66A.

Article 19(2) says state can impose reasonable restrictions on the exercise of freedom of speech
and expression in the interests of the sovereignty and integrity of India, the security of the state,
friendly relations with foreign States, public order, decency or morality or in relation to contempt
of court, defamation or incitement to an offence. The restrictions must be through legislation and
reasonable.
S 66A fulfilled one qualification of being a legal restriction, but certainly it is not ‘reasonable’.
However, it is for the judiciary to certify whether restrictions are reasonable or not.  The
expressions mentioned in S 66A, sends information to cause injury, criminal intimidation, enmity
can be certainly be penalized because they fall within the scope of ‘incitement to an offence’ a
ground prescribed by the Constitution under article 19(2). The words ‘for the purpose of causing
9Political Science

annoyance, inconvenience, danger, obstruction, insult’ do not fall within the scope of any ground
under Article 19(2).

Almost every comment, allegation, campaign, election speech, critical commentary and exposure
in media can squarely fall under criminal and critical ambit of S 66A.  Speech by leader of
opposition and by leader of the House against rival politicians can be certainly interpreted to
include in these criminalized expressions.

Article 19 of the Indian constitution guarantees the citizens freedom of speech and expression,
and was put to test by the recent arrests based on Facebook posts in accordance to Section 66A
of the IT Act.

The new government guideline is a positive step towards safeguarding one's freedom of
expression online. However, sub section A and C of Section 66A of the IT Act needs to be
amended otherwise the law of the land stands a chance of being misused again.

Vaguely worded

A large pool of the city’s legal fraternity describes this section of the IT Act as a “hidden tool” to
curtail free speech and expression in the guise of controlling electronic communication.

“Section 66A undoubtedly is not only vague, but also [strikes at] the very root of the Article 19
(1) (a) of the Constitution, which guarantees freedom of speech and expression to every citizen,”
says B.V. Acharya, former Advocate General and former member of Law Commission of India.

He wants these provisions to be immediately repealed or amended by Parliament to protect the

Constitutional right of free speech and expression and to ensure that misuse of power is avoided
or eliminated.

Power to the police

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The worst part of the Section 66A is that its subsection (a) does not spare anyone from the
offence even if their comments are found to be true.

Mr. Acharya says anyone disseminating information in electronic form — whether it is true or
false — faces the consequences once the complainant claims that comments are “grossly
offensive” or “of menacing character”.

However, terms such as these are “vague” and also not defined in the law, Mr. Acharya says and
points out that this gives unbridled power to the police to interpret them as they please.

Pointing out that punishment prescribed in a law should be proportionate to the gravity of the
offences, he says that offence under Section 66A is cognisable, non-bailable, and the police have
power to arrest without a warrant.

Besides, he says, imprisonment (up to three years) is an automatic result of a guilty verdict as the
courts have not been given the power of choosing imprisonment or fine as mode of punishment,
unlike under Section 500 of Indian Penal Code (IPC) related to defamation.

‘Shoddy legislation’

provisions of Section 66A “can be interpreted in any way” and is certainly a “hidden tool” to
restrict free speech in a democratic country.

Section 66A, no doubt, is the result of a shoddy piece of legislative work. At the same time it
reflects on the quality of debate that takes place on legislation in Parliament. One should find out
how much time Parliament spent to pass the IT (Amendment) Act 2008, which introduced
Section 66A.

Had Shakespeare been born five centuries later and tweeted a line he wrote in Henry VI, Part 2,
he could have been arrested and chargesheeted in India. Under Section 66A of the Information
11Political Science

Technology Act, 2000, the line, "Let's kill all the lawyers", could be construed as "causing
annoyance" to a class of people.

Constitutional Curbs: The founding fathers of the United States who agreed upon the First
Amendment, or their counterparts in India who drafted Article 19(1)(a) of Indian Constitution
never wanted to jail writers for commenting. They guaranteed freedom of speech and expression.
Threat to public order, defamation, incitement to offence, contravening decency and morality,
committing contempt of court, etc, are listed in Article 19(2) as grounds to limit freedom. Curbs
on speech cannot go beyond this.

Unconstitutional Curbs: If the police consider a tweet or blog 'grossly offensive' or 'of
menacing character', or causing 'inconvenience, annoyance, danger, obstruction or insult', they
can prosecute the netizen responsible under Section 66A of the IT Act, which carries a
maximum imprisonment of three years. This is certainly a breach of the fundamental right to
speech. The grounds provided are not rooted in those listed in Article 19(2). This section will not
be able to stand the scrutiny of the judiciary on whether it conforms to the Constitution. If an
expression is not criminal when it is made in the brick-and-mortar world, it cannot become one
in cyberspace. Justice Markandey Katju, Chairman, Press Council, wrote in The Hindu that the
Shiv Sena policy of favouring sons of the soil would lead to balkanization of the nation. Police
might think this article causes 'annoyance', 'inconvenience', or that it is 'grossly offensive' to the
Shiv Sena. Would it be constitutional to prosecute him for these comments as they are also
on The Hindu website?

Alternative Law: The Indian Penal Code and other provisions of the IT Act, especially after the
2008 amendment, provide enough safeguards against defamation, intentional insult leading to
breaking the peace, incitement to commit offence, etc. Political criticism always causes some
annoyance to someone. Ruling party and Opposition members routinely say unflattering things
about each other. Should they be chargesheeted, too? The basic idea behind freedom of speech is
to allow divergent critical views without looking into whether people are annoyed or
inconvenienced.
12Political Science

Breach of Fundamental Rights: Section 66A is absolutely draconian as it gives rulers a weapon

to misuse and deprive citizens of their personal liberty. Thus it not only violates Article 19(1)(a)
but also Article 21, the right to life and liberty. If Section 66A is used, it will foreclose debate
and discussion. Its chilling effect is already visible - the jailing of a professor in Kolkata, a
businessman in Tamil Nadu and two young women in Mumbai, for casual cyber writings, or
simply forwarding of received material. Today netizens are victims, but next journalists will be
threatened, as most of their writings are uploaded on the Net, too. This is a potential tool in the
hands of rulers to curtail the voice of opposition. It is fatal for the freedom of speech of netizens
in general and the press in particular. The executive should delete it from the IT Act or refrain
from using it.

SECTION 66A OF IT ACT VIOLATES THE CONSTITUTION OF

INDIA

Article 19(1A) of the Constitution of India declares that all citizens have the right to freedom of
speech and expression. Section 66A of the Information Technology Act violates that right. This
Section must be dumped.
The government's response after huge criticism over misuse of the Section peaked following the
arrest of two girls by the Maharashtra police over a Facebook post, has been to merely issue new
guidelines.

These dictate that only officers of the rank of deputy commissioner of police or higher, and in the
case of major cities, of the rank of inspector general, are authorised to register cases under this
Section. That will not resolve the problem. A faulty law cannot be implemented better by a
person of higher rank.
13Political Science

Given the fact that political discourse and influence, or even a surcharged atmosphere about
some issue, often dictates how the apparatus of the state behaves, Section 66A will continue to
be open to misuse.

At one level, the problem is that the wording of the Section makes it so vague as to be applicable
to virtually anything anyone might find "grossly" offensive or causing "annoyance or
inconvenience".

Clearly, tasked with framing a law for something as open, voluble, free, and even anonymous, as
the internet, the stunningly cunning draughtsman decided to make it potentially applicable to
anything said online. And hence draconian.

So, the danger, like with the many instances of the misapplication of charges of sedition, of it
being used both selectively and indiscriminately against individuals, groups, rights activists,
journalists, political dissenters et al. All of which goes against the notion of a vibrant democracy
in which a hundred thoughts contend and collide without fear of being muzzled by the state.

At the same time, Clause 2 of Article 19 of the Constitution makes it clear there are "reasonable
restrictions on the exercise of the right" granted by subclause A of the Article. The operative
word is 'reasonable'.

Clearly, something actively threatening the security of the state, or even an individual or group,
needs to be restricted. But that is a far cry from how Section 66A has been invoked.
14Political Science

THE VARIOUS CASES UNDER SECTION 66A

According to popular perception, Section 66A of the Information Technology (amendment) Act,
2008 is used by the government to curb voices of dissent. The spate of arrests under section 66A
last year — cartoonist Aseem Trivedi, Jhadavpur university professor Ambikesh Mahapatra and
Kochi businessman who commented on the wealth amassed by the then home minister’s son —
provides fuel for this belief.

But to say that only the government is misusing this law may be a wrong reading of the situation,
according to observers of varying trends of online freedom of speech and expression.

Many recent incidents point to the fact that citizens too, have been taking recourse to the vague
wording of section 66A, something which the government is accused of doing.

Based on a case filed by Zee News journalist Sudheer Chaudhary, a trial court in New Delhi
asked the Economic offences Wing (EoW) to file an FIR against unknown persons. Chaudhary
had complained that some of his ‘new’ followers on Twitter posted nasty tweets and created fake
profiles to defame him.
15Political Science

Chaudhary’s name figured in a sting operation allegedly done by Jindal Steel and Power Limited
which shows him demanding money to not air a story which shows the Jindals in a bad light.

In March last year, Hemanth Nimbalkar, deputy inspector general of police (internal security),
filed a complaint with Vidhana Soudha police against former Lokayukta Justice Santosh N
Hegde and former additional director general of police (ADGP) Rupak Kumar Dutta, according
to a Times of India report.

In 2009, the Lokayukta office alleged that Nimbalkar owned assets worth Rs 81 lakh, which was
disproportionate to his known sources of income. But three years later, the Lokayukta office filed
a report in the court saying there was no case against Nimbalkar. “Explaining the consequences
of the raids, the IPS officer pointed out that false allegations made by Justice Hegde and Dutta
made it to the web as they were carried by e-papers, websites and blogs and remain available to
this day,” says adds the report.

There is a spurt in police invoking section 66A in cases of fake Facebook profiles, as seen in
various states including Chennai, Mumbai and Punjab.
“There has been an increase in the number of complaints pertaining to fake profiles on social
networking sites. We have received more that 30 complaints this year,” Times of India quoted S
N Seshasai, joint commissioner of police, cyber crime branch, Chennai, as saying in November
2012.
As per Section 66A of the IT Act, causing annoyance or inconvenience electronically, is a
criminal offence, punishable with maximum of three years imprisonment. The arrest under this
section does not require a warrant. The primary problem with the Act is that it does not define
the term “offensive”.

Shehla Rashid, project officer with Internet Democracy project, an initiative for online freedom
of speech, underlines a pattern in the users of section 66A. “In many of the cases concerning
66A, we have seen some powerful entity — which could be the State or a mob or any powerful
individual – arm-twisting police into harassing dissidents. There have been many arrests under
16Political Science

this section. But how many convictions? Perhaps none! Thus, it works fine as a bullying tactic as
the accused gets arrested,” she says.

Despite its vague nature — making anything and everything online a criminal offence — section
66A fails to address many issues faced by netizens. Look at the confession pages which have
come up in various schools and colleges. You can be anonymous on a public platform and write
anything about any student or teacher on the campus. Many reports say that people are having
harrowing experience because of what has been written on these pages.Therefore, section 66 A is
meant to silence people and not to protect them.

Two women arrested for Facebook post on Mumbai shutdown then

granted bail
a 21-year-old Mumbai woman shared her views on the shutdown of the city as Shiv Sena chief
Bal Thackeray's funeral was being held. Her friend "liked" her post. At 10.30 am on Monday,
they were arrested, were ordered by a court to serve 14 days in jail and, hours later, were allowed
out on bail after paying two bonds of Rs. 15,000 each. 
The woman had posted, "Respect is earned, not given and definitely not forced. Today Mumbai
shuts down due to fear and not due to respect". A local Shiv Sena leader filed a police complaint
and the woman and her friend who liked her post were booked under Section 295 A of the Indian
Penal Code (IPC) for "deliberate and malicious acts, intended to outrage religious feelings or any
class by insulting its religion or religious beliefs."  

They were later also charged under Section 505 (2) of the IPC for making "statements creating or
promoting enmity, hatred or ill-will between classes", and the police added Section 66 (A) of the
17Political Science

Information Technology Act, which has been severely criticised for being authoritarian and
stifling freedom of expression. 

The maximum sentence under these sections is three years in jail 

Soon after the Shiv Sena leader made his police complaint, party activists allegedly vandalised
an orthopaedic clinic belonging to the uncle of one of the girls, breaking window panes and
flowerpots. There were two patients in the clinic at the time alleged Sainiks ransacked it. None of
those who ransacked the clinic has been arrested yet.

The women were arrested by the Palghar police; Palghar is about two and half hours of travel
from Mumbai. After widespread criticism and uproar, the Maharashtra Police has ordered an
inquiry to be led by Sukhwinder Singh, Special Inspector General of Konkan range, into whether
there is any merit in the case against the women. Sources said top cops at the police headquarters
in Mumbai were livid with the Palghar police. "We have ordered an inquiry...if any further action
needs to be taken the probe team will decide and send a report. On this report we will act,"
Deven Bharti, IG (Law and Order), Maharashtra Police said. 
 
The women have also found very vocal support from Press Council of India chief Markandey
Katju, who has demanded "immediate" action against the police personnel who arrested them. In
an e-mail to Maharashtra Chief Minister Prithviraj Chavan sent this afternoon, Mr Katju has
warned of "legal consequences" if the Chief Minister fails to act. "I will deem it that you as CM
are unable to run the state in a democratic manner as envisaged by the Constitution to which you
have taken oath and then legal consequences will follow," Justice Katju said.
About five hours later, having not got a response, he emailed Mr Chavan again, this time telling
him the "nation wants to know what action you have taken... Please realise that silence is not an
option for you

Rahul Narvekar, the head of Shiv Sena's legal cell, said, "It is for the state administration and
police department to investigate complaints that are lodged. I am not aware of any complaint
filed by any shakha pramukh of Shiv Sena. We will have to look into it. Uddhav Thackeray has
18Political Science

made an appeal to the cadre to maintain peace."

The Shiv Sena leader's death had brought the city to a virtual standstill for the weekend, with
shops and other establishments shutting and taxis going off the roads, amid fears of violence by
Mr Thackeray's supporters. The fears appeared unfounded, since there was no incident in
Mumbai.

PIL FOR THE LAW

Voicing concern over recent incidents of people being arrested for posting alleged offensive
messages on websites, the Supreme Court on Thursday agreed to hear a PIL seeking amendment
to the Information Technology Act.

A bench headed by Chief Justice Altamas Kabir said that it was considering to take suo motu
cognisance of recent incidents and wondered why nobody had so far challenged the particular
provision of the IT Act.

Taking the case on urgent basis, the bench agreed to hear the PIL filed by a Delhi student Shreya
Singhal later today.
19Political Science

Shreya has contended in her plea that "the phraseology of Section 66A of the IT Act, 2000 is so
wide and vague and incapable of being judged on objective standards, that it is susceptible to
wanton abuse and hence falls foul of Article 14, 19 (1)(a) and Article 21 of the Constitution."

She has submitted that "unless there is judicial sanction as a prerequisite to the setting into
motion the criminal law with respect to freedom of speech and expression, the law as it stands is
highly susceptible to abuse and for muzzling free speech in the country."

The arrests which have been referred to by Shreya in her petition include that of a 21-year-old
girl for questioning on Facebook the shutdown in Mumbai after Shiv Sena leader Bal
Thackeray's death, which was 'liked' and shared by her friend, who was also arrested.
Shreya has also referred to an April 2012 incident, when a professor of chemistry from Jadavpur
University in West Bengal, Ambikesh Mahapatra, was arrested for posting a cartoon concerning
a political figure on social networking sites.

She has also referred to the arrest of businessman Ravi Srinivasan in October 2012 by the
Puducherry Police for having made a allegation on twitter against a politician from Tamil Nadu
as well as the May 2012 arrests of two Air India employees, V Jaganatharao and Mayank
Sharma, by the Mumbai Police under the IT Act for posting content of Facebook and Orkut
against a trade union leader and some politicians.

Shreya in her plea has also sought issue of guidelines, by the apex court, to "reconcile section 41
and 156 (1) of the Criminal Procedure Code with Article 19 (1)(a) of the Constitution" and that
offences under the Indian penal Code and any other legislation if they involve the freedom of
speech and expression be treated as a non-cognizable offence for the purposes of Section 41 and
Section 156 (1).
Section 41 of the CrPC empowers the police to arrest any person without an order from the
magistrate and without a warrant in the event that the offence involved is a cognizable offence.
Section 156 (1) empowers the investigation by the police into a cognizable offence without an
order of a magistrate.
20Political Science

THE GOVERNMENTS STAND ON THE LAW:

Defending the controversial provision in the Information Technology Act used for arresting two
girls in Maharashtra for their Facebook posts, the Centre has told the Supreme Court that
highhandedness of certain authorities will not make the provision bad in law since it imposed
"reasonable restrictions" on the freedom of speech and expression.The Ministry of
Communication and Information Technology, in its affidavit, defended section 66A of the
Information Technology Act under which the two girls from Palghar were arrested by Thane
police.
21Political Science

"The alleged highhandedness of certain authorities does not mean that section 66A of the IT Act
is bad in law," it said in reply to a notice by the court on a PIL asking for a re-look at the
provision. The section states that any person who sends, by means of a computer resource or
communication device, any information that was grossly offensive or has a menacing character
could be punished with imprisonment for a maximum term of three years, besides imposing
appropriate fine.

The ministry said the provision does not curb freedom of expression and speech guaranteed
under Article 19(1) of the Constitution, as it does not provide absolute freedom but imposed
certain reasonable restrictions. It further said that the advisory issued by the Centre not to effect
arrest under Section 66A of the IT Act without prior permission from senior police officers
would rule out unnecessary detentions in future.

The Maharashtra Government, which was asked to explain the circumstances of arrest, admitted
that arrests of the girls for making comments on the shutdown of Mumbai for the funeral of Shiv
Sena Chief Bal Thackeray, were "unwarranted" and "hasty" and "cannot be justified". It said the
Thane police SP (Rural) has been suspended for arresting the two girls despite an instruction by
the IGP not to do so. The court had sought response from the Centre on the amendment and
misuse of section 66A of IT Act and had also directed the Maharashtra government to explain
the circumstances under which the two were arrested.

In her writ petition challenging the constitutional validity of Section 66 A of the Information
Technology Act, Shreya Singhal said recent events had had a chilling effect on her and crores of
other Internet users.

Section 66A says: “Any person who sends by means of a computer resource or a communication
device any information that is grossly offensive or has menacing character; or any information
which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger,
obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill-will, persistently makes by
making use of such computer resource or a communication device, any electronic mail or
electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or
22Political Science

to mislead the addressee or recipient about the origin of such messages shall be punishable with
imprisonment for a term which may extend to three years and with fine.”

The petitioner contended that the Section was so wide and vague and incapable of being judged
on objective standards that it was susceptible to wanton abuse. Contending that it was violative
of freedom of speech and expression guaranteed by Article 19 (1) (a) of the Constitution, she
wanted it declared unconstitutional, and an interim stay on its operation.

Earlier intervening, senior counsel Harish Salve said the issue had far-reaching consequences.

When Chief Justice Altamas Kabir wanted to know whether he was filing an intervention
application, Mr. Salve said he would file one.

Other controversial sections of the IT Act

Other than  the Section 66 (A), which is now the most debated and discussed section of the IT
Act, there are other Sections in the Act which  are open to interpretation and can be misused. 

Section 80 of Indian IT Act

This is a draconian law that gives immense power to the Police. The law grants power to every
police officer of the rank of Inspector  to enter, search and arrest (in a public place without
warrant) a person who has "either committed a cyber crime, committing a cyber crime or is about
to commit a cyber crime. "
This is first time in Indian jurisprudence  where an arrest can be made on the basis of intention to
23Political Science

commit a crime depending on the discretion of the police officer.

The tenure of punishment once booked under the section could range between 3 years and life
imprisonment, with a penalty of Rs 1-10 lakh.  This Section was a part of the initial IT Act of
2000.
The implementation of the Act once gave rise to "cyber hafta" wherein police officers started
charging hafta or protection money for not making arrests under the section.

Section 67 (B) Of Indian IT Act

This makes accessing or browsing child pornography as an offense under section 67 (B) liable
for 5 years of imprisonment and upto Rs 10 lakh fine.  This section makes mere accessing child
pornography as a punishable offense. 

In today's digital world , unaware netizens are often directed towards sites which may have child
pornography. By mere clicking on the site , a person can be liable for imprisonment and fine.

 Besides, in India the definition of a child is anyone below the age of 18 years, which makes it
very difficult to demarcate pornography from child pornography.

This is unparalleled in anywhere in the world. In the US, where the child pornography laws are
most stringent, a person is only booked for  transmitting or publishing child pornography in
digital form. This Section was introduced within the IT Act in 2008.
24Political Science

Guidelines Issued By The Government:

 The government will issue fresh guidelines that make approval of senior police officers
mandatory to carry out arrests under a contentious section of the Information Technology Act.
This section was recently in the news for being misused to arrest two young women for posting
messages on Facebook after the death of controversial politician Bal Thackeray.

These changes were decided at a meeting of the Cyber Regulation Advisory Committee (CRAC)

under the chairmanship of IT minister Kapil Sibal. The guidelines, to be issued soon, are meant
to bring in greater accountability among law enforcement officials implementing the Act.

The Centre issued new guidelines for arrests under a controversial provision of the IT Act even
as the Supreme Court Thursday questioned the reaction of the state and the "might" of the police
in the arrest of two Maharashtra women for a Facebook post. Such incidents "outraged the
conscience" of many citizens, the apex court said.
25Political Science

The new guidelines say approval from a police officer of IGP rank in metros and DCP rank in
other areas will have to be sought before registering complaints under section 66A of the Act.
Section 66A provides for a jail term of up to three years, and a case under it can be registered by
a police station in-charge or an inspector-rank officer.

The revised guidelines say "the concerned police officer or police station may not register any
complaints unless he or it has obtained prior approval at the level of an officer not below DCP
rank in urban and rural areas and IG level in metros", a source said. However, the source said
there were some "procedural difficulties", and the Centre would soon circulate the new
guidelines to all state governments.

In the Supreme Court, a bench headed by Chief Justice Altamas Kabir, while agreeing to admit
the PIL by a law student from Delhi seeking that Section 66A be declared unconstitutional, said
the matter required their "consideration", and asked for the assistance of Attorney General G E
Vahanvati to decide the legal issues involved.

"When were these girls arrested? As per media reports, they were arrested after sunset? Might of
the police, it seems, got activated only after sunset," the bench said after senior lawyer Mukul
Rohatgi mentioned the matter and called for its immediate intervention. He cited the arrest of
two girls for questioning on Facebook, Mumbai being shut down after Shiv Sena chief Bal
Thackeray's death.

Agreeing to examine the matter at length , the bench told Rohatgi that the court had also been
contemplating taking suo moto cognisance of the incident. "We were wondering why no one has
approached the Supreme Court over this and even thought of taking up the issue suo motu. We
were waiting to see what steps you take," it added.

"The way in which the state has reacted in this case and also the police action, we think this
matter requires some consideration from us," the bench said.

The court also took note of a similar incident in which a professor from Jadavpur University in
West Bengal was arrested for allegedly posting a cartoon online showing chief minister Mamata
Banerjee in poor light. This came after Rohatgi cited the incident to demand that section 66A of
26Political Science

the IT Act be dropped since it was "vague, undefined and was being used to curtail one's
freedom of speech and expression".

Posting the matter for Friday, the bench, however, turned down Rohatgi's plea to pass an interim
order restraining police from arresting anyone under the IT Act during pendency of the case
unless prior approval of an IGP is obtained.

In her PIL, law student Shreya Singhal contended that "the phraseology of section 66A of the IT
Act, 2000 is so wide and vague and incapable of being judged on objective standards, that it is
susceptible to wanton abuse and hence falls foul of Article 14, 19 (1)(a) and Article 21 of the
constitution".

Requesting the court to issue guidelines over arrest and investigation in such cases, her plea said
that "unless there is judicial sanction as a prerequisite to the setting into motion the criminal law
with respect to freedom of speech and expression, the law as it stands, is highly susceptible to
abuse and for muzzling free speech in the country".

COPS TO DROP PALGHAR CASE

Maharashtra Police decided to drop charges against the two young women who were arrested on
November 19 over a Facebook post disagreeing with the shutting down of Mumbai in the wake
of Bal Thackeray's death.

DGP Sanjeev Dayal said, "No chargesheet will be filed in the case of arrest of two girls from
Palghar. There will be a closure report." A closure report is filed when investigators conclude
that no case is made out against the accused.
27Political Science

CONCLUSION
The UPA government has itself to blame for being red-faced over Section 66A of the
Information Technology Act. Had it come down heavily on the law's repeated misuse, the
Supreme Court wouldn't have had to step in. Last week, the apex court issued notices to the
Centre and five states in connection with a PIL questioning the legal soundness of Section 66A.
It sought explanations for arrests made under this law, including Maharashtra police's
apprehending of two young women for an innocuous Facebook post.
Clearly, little has been done to check the law's abuse. The Union government has merely spoken
of educating law enforcers on the Section's judicious application. More recently, it's proposed
denying junior police the power to invoke the law. Officers not below the rank of inspector
general in cities, and of deputy commissioner in rural areas and non-metros, are to be the
28Political Science

deciding authorities. However, rampant political interference in law enforcement is itself a

burning issue. So, to argue that senior police officers will always resist mob pressure or political
diktats isn't persuasive.

Too many outrageous infringements on civil liberties have occurred for faith to be reposed in
discretionary invoking of Section 66A. Adding to public misgivings is high-handed police
action, evident in the cases involving the two women or, earlier, two Air India employees in
Maharashtra, or a professor in Kolkata. Instead of debating panaceas of doubtful efficacy, let's
see policemen accused of harassing citizens with arbitrary arrests probed and punished. That'll
have more deterrent value.
Let's also recognise Section 66A's misuse flows from its draconian nature and imprecise
terminology. People can face up to three years' jail for electronic communications that "grossly"
offend or cause "annoyance or inconvenience", or, in case of information known to be false,
cause "danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will".
Clubbed together, this amounts to gagging citizens in a day and age the internet's an
indispensable everyday platform for exchange of news and views. Surely living in a democracy
means being able to say things that others, however high and mighty, may not like. That's why
the government can't avoid doing one of two things. It can radically narrow Section 66A's scope,
removing all ambiguity about what constitutes crime. Or it can throw it out, since specific cyber
offences can be covered under existing laws which already deal with libel, defamation, threats
and intimidation. Doing neither isn't an option.
29Political Science

BIBLIOGRAPHY
PRIMARY SOURCES:

THE CONSTITUITION OF INDIA

SUPREME COURT CASES

INFORMATION TECHNOLOGY ACT, 2008

SECONDARY SOURCES:
30Political Science

BOOKS

1. Dr. L.M. Singhvi, Constitution of India (Volume 1, 2nd edn.,Modern Law Publications,
2006) [8]
2. Durga Das Basu, Constitution of India, (Wadhwa Publications, Nagpur, 8th edition [Y.V.
Chandrachud, S.S. Subramani, B.P. Banerjee(eds)], 1-2, 2007)
3. D D Basu, Commentary on the Constitution of India (4th edn., S.C. Sarkar & Sons ( pvt )
Ltd, 1961)

4. M P Jain, Indian Constitutional Law (volume 1, 5th edn., Wadhwa and company Nagpur,
2003) [5]

WEBSITES:

http://www.thehindu.com/news/national/tamil-nadu/validity-of-section-66a-of-it-act-challen
ged/article4116598.ece( Accessed on the 15 th February , 2013)

http://www.indianexpress.com/news/section-66a-of-it-act-not-bad-in-law-centre-to-sc/10581
28 ( Accessed on the 15th February , 2013)

http://www.indianexpress.com/news/pil-questions-constitutional-validity-of-it-act-section-6
6/1070000 ( Accessed on the 15th February , 2013)
31Political Science

http://www.lawzonline.com/bareacts/information-technology-act/section66A-information-te
chnology-act.htm ( Accessed on the 15th February , 2013)

http://articles.timesofindia.indiatimes.com/2012-11-29/india/35433946_1_cognizable-offenc
e-section-66a-shreya ( Accessed on the 15th February , 2013)

NEWSPAPERS:

The Times Of India, The Indian Express, The Hindu