New Delhi, March 24: The Supreme Court today struck down the validity of Section 66 A of the Information Technology (IT) Act terming it as unconstitutional.
The act which was termed as draconian in nature was grossly misused by the law enforcement agencies to carry out arrests for posting objectionable material on the internet.
The order was passed while hearing a batch of petition challenging the validity of Section 66A of the Information Technology Act.
It was argued that that the Section interferes with free speech.
The Centre defended the provision, saying the possibility of its potential abuse cannot be a ground for declaring it unconstitutional.
The court upheld the contentions of the petitioners who had termed the law as unconstitutional and had said that it was being used to harass people.
In an era of free speech the act comes as across as outdated, opposed to the Constitution of India and draconian is what was contended.
What is Section 66 A of the IT Act?
Section 66 A of the Information Technology Act prohibits posting of offensive content.
The section empowers the police to arrest people who post objectionable content online and prescribes a three year jail term.
Several arguments were advanced by the Supreme Court regarding this section.
It was stated that when one looks at the Constitution and article 19 (1) it becomes clear that every person has a fundamental right to freedom and expression of speech.
However, under 19(2) the Constitution also states that while there is a right to freedom of expression and speech it is not an absolute right and can be subject to reasonable restrictions.
In this context Section 66A of the IT act is a loose cannon and tends to override the Indian Constitution.
Section 66A was passed by the Parliament in 2008 imposes restriction on internet freedom of speech causing which is annoying of menacing in character.
It is the complainant who determines what is offensive or menacing in character.
Like the anti dowry law even Section 66A is grossly misused in the digital realm.
The problem with Section 66A:
Pavan Duggal, an expert on cyber laws tells Oneindia that the problem with Section 66A is that it criminalises the sending of information from a computer or mobile.
It means that the intention of the person sending out such information has no consequence what so ever.
Unlike in criminal jurisprudence where two elements are critical-intent and action, 66A makes a substantial departure from criminal jurisprudence.
Section 81 of the IT Act says that this is a special law and prevails over anything that is consistent therewith.
In such a scenario 66A assumes far more dangerous ramifications because you may post anything on social media with any intention, but intention is disregarded by 66A then your content or information can be viewed by different perspectives by different individuals.
66A basically has become a classic handle for misuse both in the hands of the complainant and police.
Those who were booked under Section 66 A of the IT Act:
In April 2012, Jadavpur university professor Ambikesh Mahapatra and his neighbour Subrata Sengupta were arrested by the police after they had circulated a cartoon poking fun at West Bengal Chief Minister, Mamata Banerjee.
While these arrests had caused outrage, Mamata had said that if one commits an offence then he or she has to face arrest.
However, the case went up before the Calcutta High Court which directed payment of Rs 50000 compensation to the duo.
Aseem Trivedi a free speech campaigner was arrested in Mumbai after he posted cartoons mocking parliament.
Shaheedn Dhada and Renu Srinivasan were arrested when a post on their facebook page questioned the shutting down of Mumbai for the funeral of Bal Thackerey. However, all charges against them were quashed in court.
In May 2012 Mayank Mohan and K V Rao, two Air India employees were arrested for posting jokes about the Prime Minister. Charges against them were however dropped a few months later.
Kanwal Bharti of Uttar Pradesh was arrested in August 2013 after posting messages on facebook criticizing the Uttar Pradesh government for suspending Durga Shakti Nagpal, the IAS officer who had cracked down on the sand mafia.
In August 2014, Rajesh Kumar from Kerala was arrested for posting abusive content against the Prime Minister.