Striking down Sec 66A: Unintended consequences as baby thrown out with bath water

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Section 66 A of the Information Technology Act was struck down last week by the Supreme Court and it was hailed as a landmark verdict. There were several aspects of Section 66A which ran contrary to the Indian Constitution dealing with freedom of speech and expression and there is no doubt that the section could not continue as it was.

However has the Supreme Court thrown the baby out with the bath water? As important as it was to deal with Section 66A, the same could have still been watered down instead of being struck down all together.

Sec 66A should not have been struck down

Pavan Duggal, an expert on cyber laws speaks with OneIndia about the unintended consequences of the verdict. While it was necessary to deal firmly with the verdict, I still feel it could have been watered down by the Supreme Court instead of throwing it out all together especially in this age of the internet where cyber crime and cyber bullying are so rampant.

Firstly can you share your thoughts on the verdict?

I think first and foremost the Supreme Court has supreme powers to strike down any law or legislation. If the Supreme Court is of the opinion that a law or legislation runs contrary to the Constitution, it can strike it down.

The Supreme Court held that Section 66A is contrary to Article 19(2) of the Indian constitution which deals with reasonable restrictions on freedom of speech and expression.

To that extent SC has taken a correct line. No amount of restriction which is beyond and above Article 19(2) can be imposed. In this case the judgment looked at what are the reasonable restrictions and came to the opinion that since restrictions do not envisage the restrictions under Section 66a it has to go.

What are the unintended consequences that could arise from this verdict?

The fact remains that striking down Section 66A we have now begun to see a lot consequences. The euphoria which this verdict created was justified to an extent since it held that freedom of speech is sacrosanct.

However it has given an impression to the people that there is an unlimited charter to do whatever they want to do. These persons are having a field day. Cyber bullies are having a field day. Cyber bullying is victimizing schools and educational system.

Till such time the government does not come up with another legislation, cyber bullying will get a boost. Also this particular judgment has given people a feeling with Section 66 A gone none can touch them.

What provisions can a victim rely on now?

Both the IT act and the Indian Penal Code can be applied now. One of the relative provisions would be Section 67 of the IT Act which basically criminalises the sending and publishing information which tends to deprave and corrupt the minds of those who are likely to see read or hear the same.

This provision can now be more ingeniously utilized. Other provisions under IPC which deals with defamation can be used.

Section 66 A (c) deals with spam. This has gone too with this verdict. What are your thoughts on this?

The direct remedies that were available to tackle cyber bullying and cyber nuisance stands evaporated.The Supreme Court had a historic opportunity to water down the Section and issue guidelines instead of striking it down as a whole.

What has happened with this judgment is that Section 66A which had clause B and C too have been struck down. I am particularly concerned about Clause C which deals with spam and provides imprisonment of up to 3 years.. India is the largest producer of spam and with this clause too gone, there are no checks and balances and spammers will have a field day.

Clause C was clearly not violative of the Constitution of India and hence could have been retained.
By declaring Section 66 A as completely unconstitutional, SC has also put an end whatever limited legal provision India had to deal with the menace of spam. Moreover clause B which mandates punishment for sending out information knowing it is false has also gone as a result of this verdict.

Has the Supreme Court thrown the baby out with the bath water?

Yes it is the case here. There are so many unintended consequences of this verdict. The court should have restrained components which were not in violation of the Constitution.

In the absence of another direct provision in this world of increasing cyber crime striking down Section 66A has its own challenges for the security agencies and also the people of the country.

What should the government do now?

Now government must come up with provisions to deal with these challenges. IT Act has already has a poor record and was passed without discussion. It was also amended without discussion.

We have seen a sea change in technological advancements. Government now gets a further boost to amend the IT act and make it topical. Focus is back on the government and it has the duty to protect the victims of cyber crime and bullying.

The CBSE has issued guidelines to prevent cyber bullying in schools. However in the absence of legislative support and provisions to issue these guidelines they are likely to digress.

The judgment also speaks about intermediary liability. Can you explain that to us?

The judgment points towards the fact that and intermediary will not be liable to any party data, communication link made available or hosted by him without certain mandatory compliances under the law.
Now those who are affected by content posted will have only two options to get the intermediaries remove that content. They will need to either obtain a government or court order.

Does this mean the defamatory content remains until an order is passed?

Yes that is what it exactly means. Those affected cannot issue a notice to the intermediary and have the content removed till the case is pending. This would mean until the government or the court issues an order the defamatory content remains on the site.

The Supreme Court should have taken into account the agony potential victims would have before getting a court order. A court order will be challenging since not all courts are aware of the nuances and are well equipped to pass such orders.

Intermediaries will be happy because they wont have to act. They will only act if court or government order. This locks out any hopes for acts or real justice. This has far reaching ramifications and will make intermediaries recklessly insensitive to any request for removal of content.  This judgment only mandates them to act on court or government orders.

This would also lead to increase in litigation. Earlier a notice could be issued to an intermediary, but now an unwilling litigant must approach the court. The troubles for a genuine litigant only increases in the absence of special courts to deal with the IT act.

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