SC Strikes Down Section 66A of IT Act, Says It's Unconstitutional
NEW DELHI | MAR 24, 2015
In a landmark judgement upholding freedom of
expression, the Supreme Court today struck down a provision in the cyber law
which provides power to arrest a person for posting allegedly
"offensive" content on websites.
Terming liberty of thought and expression as
"cardinal", a bench of justices J Chelameswar and R F Nariman said,
"The public's right to know is directly affected by section 66A of the
Information Technology Act."
Justice Nariman, who pronounced the verdict in
a packed court room, also said that the provision "clearly affects"
the fundamental right to freedom of speech and expression enshrined under the
Constitution.
Elaborating the grounds for holding the
provision as "unconstitutional", it said terms like
"annoying", "inconvenient" and "grossly
offensive", used in the provision are vague as it is difficult for the law
enforcement agency and the offender to know the ingredients of the offence.
The bench also referred to two judgements of
separate UK courts which reached different conclusions as to whether the
material in question was offensive or grossly offensive.
"When judicially trained minds can reach
on different conclusions" while going through the same content, then how
is it possible for law enforcement agency and others to decide as to what is
offensive and what is grossly offensive, the bench said, adding, "What may
be offensive to a person may not be offensive to the other."
The bench also rejected the assurance given by
NDA government during the hearing that certain procedures may be laid down to
ensure that the law in question is not abused.
The government had also said that it will not
misuse the provision.
"Governments come and go but section 66A
will remain forever," the bench said, adding the present government cannot
give an undertaking about its successor that they will not abuse the same.
The bench, however, did not strike down two
other provisions- sections 69A and 79 of the IT Act- and said that they can
remain enforced with certain restrictions.
Section 69A provides power to issue directions
to block public access of any information through any computer resource and 79
provides for exemptions.
The apex court pronounced its verdict on a
batch of petitions challenging constitutional validity of certain sections of
the cyber law.
The first PIL on the issue was filed in 2012 by
law student Shreya Singhal, who sought amendment in Section 66A of the Act,
after two girls -- Shaheen Dhada and Rinu Shrinivasan -- were arrested in
Palghar in Thane district as one of them posted a comment against the shutdown
in Mumbai following Shiv Sena leader Bal Thackeray's death and the other
'liked' it.
In the wake of numerous complaints of
harassment and arrests, the apex court had on May 16, 2013, come out with an advisory
that a person, accused of posting objectionable comments on social networking
sites, cannot be arrested without police getting permission from senior
officers like IG or DCP.
After the apex court had reserved its judgement
in the matter on February 26 this year, another controversial case hogged the
limelight for alleged misuse of section 66A, in which a boy was arrested on
March 18 for allegedly posting on Facebook objectionable comments against
senior Samajwadi Party leader Azam Khan.
A petition was filed before the Supreme Court
in this regard alleging that its advisory was violated after which the apex
court had asked UP police to explain the circumstances leading to the arrest of
the boy.
Section 66A: Seven instances of alleged abuse on social media
By: Express News Service | Updated: March 24,
2015 12:01 pm
Supreme Court of India on Tuesday scrapped
Section 66A of the Information Technology Act. Here are some of the incidents
in the past where Section 66A was slapped against those who “posted” offensive
messages on social media platforms:
Youth held for ‘objectionable’ FB post against
Azam Khan
azam-khanAzam Khan
A Class XI student from Bareilly was arrested
by Rampur police for sharing an “objectionable” post on Facebook against senior
Samajwadi party leader and state Urban Development Minister Azam Khan. A team
of crime branch sleuths picked him up from his house Monday and he had been
remanded in judicial custody for 14 days.
FIR filed against Owaisi over Delhi hate speech
MIM president Asaduddin OwaisiMIM president
Asaduddin Owaisi
An FIR has been lodged against All-India Majlis
Ittehadul Muslimin (AIMIM) leader and MP Asaduddin Owaisi by Delhi police on
the directions by a city court for his alleged “hate speech” in June last year.
The FIR includes charges under Section 153 A (promoting enmity between groups),
504 (intentional insult with intent to provoke breach of peace) and 120B
(criminal conspiracy ) as well as sections 66A, 66F and 67 of the IT Act that
relate to “objectionable” speech and cyber terrorism.
FIR against author Taslima Nasreen on cleric’s
complaint
taslimaTaslima Nasreen
An FIR has been lodged against controversial
Bangladeshi writer Taslima Nasree for allegedly hurting religious sentiments
(on Twitter) following a complaint by a prominet Muslim cleric in Bareilly
district of Uttar Pradesh.
Two girls arrested for Facebook post
questioning ‘Bal Thackeray shutdown’ of Mumbai, get bail
Two girls were arrested over their Facebook
post questioning the shutdown in the city for Shiv Sena patriarch Bal
Thackeray’s funeral with the comment also leading to an attack on the clinic of
an uncle of one of them by Sena activists.
Cartoonist Aseem Trivedi charged with sedition
ready to surrender
Charged with sedition and insulting national
emblems in his cartoons, Aseem Trivedi — a political cartoonist based in Kanpur
— claims he will travel to Mumbai and surrender to the police in a couple of
days. The Mumbai Police’s cyber wing had blocked Trivedi’’s website,
http://www.cartoonsagainstcorruption.com,last December, sparking a debate on
freedom of expression in India.
Kerala youth arrested for posting abusive
Facebook comments against Modi
A Kerala youth was arrested on charges of
posting abusive comments and photos on Facebook against Prime Minister Narendra
Modi. The case was registered against Rajeesh at Anchal police limits in Kollam
district on Tuesday after he had posted three abusive posts on Facebook. An RSS
worker had complained against Rajeesh – a local CPI (M) worker.
Two arrested for e-mail showing Pinarayi’s
‘mansion’
The Kerala Police cyber cell on Sunday arrested
two youths on charges of circulating an e-mail, which contained a picture of a
palatial mansion, wrongly attributed to CPM Politburo member and state
secretary Pinarayi Vijayan.
No case in hand, cops asked JU professors
neighbours if cartoon ‘disturbed’ them
Senior Kolkata Police officers are learnt to
have called up as many as 62 members of the New Garia Housing Society to find
out if they were “disturbed” after receiving an e-mail carrying a cartoon of
Chief Minister Mamata Banerjee sent by the residential society’s Jadavpur
University professor Ambikesh Mahapatra.
Supreme Court and The IT Act
By SFLC_ADMIN | FEBRUARY 20, 2014
Since its introduction back in October 2000, the Information Technology Act has proved to be a highly controversial piece of legislation. In its thirteen-odd years of operation, the Act has managed to draw considerable criticism from the legal community and the general public. It is alleged to contain a whole spectrum of flaws, shortcomings and pitfalls ranging from being inefficient in tackling cyber crimes to placing unfair curbs on the civil liberties of citizens.
Making matters worse, a 2008 Amendment introduced to the Act the now-infamous Section 66A, which reads:
Any person who sends, by means of a computer resource or a communication device:
a) any information that is grossly offensive or has menacing character; or
b) 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 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.
The offence under 66A being cognizable, police authorities were initially empowered to arrest or investigate without warrants, based on charges brought under the Section. This resulted in a string of highly publicized arrests of citizens for posting objectionable content online, where the ‘objectionable’ contents were more often than not, dissenting political opinions. Some relief against this was granted in the form of an advisory issued by the Central Government in January 2013, which said no arrests under 66A were to be made without prior approval of an officer not below the rank of Inspector General of Police. However, the advisory was mostly ignored by authorities since it was issued by the Central Government while law and order is for the State Governments to administer.
Apart from Section 66A, the Information Technology (Intermediaries Guidelines) Rules, 2011 have also seen their fair share of criticism. While Section 79 exempts intermediaries from liability in certain cases, the Rules water down these exemptions and force intermediaries to screen content and exercise on-line censorship. Additionally, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 provide for blocking of web pages without proper publication or notice to public containing the reasons for blocking. The process of blocking is undisclosed and fails to meet Constitutional safeguards of natural justice.
Matters have now come to a head before the Apex Court, where a series of cases have been scheduled to be taken up together, all challenging various aspects of the IT Act and associated Rules, among which Section 66A features with much prominence.
Shreya Singhal v. Union of India – Concerned by the recurring arrests made under Section 66A, this petition was filed in public interest before the Supreme Court challenging the constitutionality of 66A. The petitioner argues that the impugned Section is too broad in its sweep and contains several undefined words/terms, making it susceptible to wanton abuse. This creates a ‘chilling effect’ where citizens are severely disincentivized from exercising their constitutionally protected right to free speech for fear of frivolous prosecution. Thus, Section 66A is violative of Articles 14, 19 and 21 of the Constitution of India that guarantee citizens the Fundamental Rights to equality, free speech and life respectively. In addition to declaring Section 66A as unconstitutional, the petitioner urges the Court to issue a guideline stipulating the treatment of all offences involving free speech concerns as non-cognizable. [Read more]
In the course of proceedings, the Supreme Court through an interim order directed the State Governments to ensure compliance with the Central advisory issued in January 2013, thereby ensuring that no arrests under Section 66A are made without prior approval.
Rajeev Chandrashekhar v. Union of India – Filed by a serving Member of Parliament, Rajeev Chandrashekhar, this public interest petition seeks to declare Section 66A and certain provisions of the Information Technology (Intermediaries Guidelines) Rules, 2011 as unconstitutional. The petitioner points out that Section 66A is ambiguous in its phraseology and imposes statutory limits on the exercise of internet freedom. Further, the Intermediaries Guidelines Rules are similarly ambiguous and require private intermediaries to subjectively assess objectionable content. They actively water down the exemptions from liability granted to intermediaries by Section 79 of the IT Act, and prescribe unfeasibly minuscule time-frames for the removal of objectionable content. Section 66A of the Act, and the Rules are thus violative of Articles 14, 19 and 21 of the Constitution and the petitioner prays that they be declared as such. [Read more]
Common Cause v. Union of India – Spurred by the 66A arrests, this petition was filed in public interest before the Supreme Court challenging the constitutionality of Sections 66A, 69A and 80 of the IT Act. It is argued that the grounds for incrimination under 66A are beyond the scope of reasonable restrictions on Fundamental Rights allowed by Article 19(2) of the Constitution. In addition, the vagueness of language invites blatant transgressions of Fundamental Rights. Section 69A, which effectively enables State-censorship of the internet, neither provides for a redressal mechanism on censorship, nor does it contain provisions with respect to unblocking of blocked content. Further, Section 80 of the Act grants unbridled powers to the police to arrest or investigate without warrant, any person suspected of having committed an offence under the Act. The petitioner argues that these provisions stand in violation of Articles 14, 19 and 21 of the Constitution, and are thus liable to be set aside. [Read more]
Dilipkumar Tulsidas v. Union of India – This petition was filed before the Supreme Court in public interest, based on the lack of a regulatory framework for the effective investigation of cyber crimes, coupled with a lack of awareness regarding cyber crimes on the part of police authorities. In the absence of proper procedures for investigation and safeguards, citizens are vulnerable to police harassment. There is also no uniformity in cyber security control and enforcement practices. While the IT Act has provided that any police officer of the rank of sub-inspector can investigate cyber offences, there are no provisions for training or knowledge for such officers in order to properly equip them to handle cyber crimes. The petitioner thus prays that the Supreme Court formulate, and also direct the respondents to formulate an appropriate regulatory framework of Rules, regulations and guidelines for the effective investigation of cyber crimes, keeping in mind the Fundamental Rights of citizens. He also prays that the Court direct the respondents to carry out awareness campaigns particularly for investigating agencies, intermediaries and the judiciary regarding the various forms of cyber crimes sought to be penalized. [Read more]
People’s Union for Civil Liberties v. Union of India – This writ petition was filed in public interest before the Supreme Court as there are instances of complaints under Section 66A of the IT Act as well as misuse of the Rules framed under the Act all over the country despite the SC directing compliance with the Central Advisory in Shreya Singhal v. UoI. Due to the vague and undefined purported offences contained within 66A, the power to punish speakers and writers through arrest and threat of criminal trial is at the first instance granted to complainants with offended sentiments and police officials.
A significant proportion of the offences in Section 66A do not even fall within the permissible categories of restriction in Article 19(2) of the Constitution. Further, the Intermediaries Guidelines Rules provide for vague and undefined categories that require legal determinations and effective censorship by private online service providers. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 provide for blocking of web pages without proper publication or notice to public containing the reasons for blocking. The process of blocking is entirely secret and ex facie fail to meet constitutional safeguards of natural justice. The petitioner argues that these provisions violate Articles 14, 19 and 21 of the Constitution and requests their suspension. In the alternative, the petitioner requests the notification of certain guidelines towards ensuring their fair operation. [Read more]
MouthShut.com (India) Pvt. Ltd. v. Union of India – This petition was filed in before the Supreme Court towards quashing the Intermediaries Guidelines Rules. They force intermediaries to screen content and exercise on-line censorship. While a private party may allege that certain content is defamatory or infringes copyright, such determinations are usually made by judges and involve factual inquiry and careful balancing of competing interests and factors, which the intermediaries are not equipped to make. Thus, it is argued that the Rules liable to be set aside as they contain arbitrary provisions which place unreasonable restrictions on the exercise of free speech and expression, as well as the freedom to practise any profession, or to carry out any occupation, trade or business as guaranteed by Articles 19(1)(a) and 19(1)(g) of the Constitution. They are also liable to be struck down because of their failure to conform to the Statute under which they are made and exceeding the limits of authority conferred by the enabling IT Act. [Read more]
Taslima Nasrin v. State of UP – This petition was filed by Bangladeshi author Taslima Nasrin, seeking to quash an FIR filed against her under Section 66A, on the basis of certain tweets made by her against an Islamic leader and reported in a Hindi newspaper. It is argued that the wide language used in Section 66A, coupled with the use of vague/undefined terms, makes it susceptible to abuse and thus, the Section falls foul of Articles 14 and 21 of the Constitution. It is also accused of placing unreasonable restrictions on free speech. For these reasons, and since the FIR in question was filed without conducting the appropriate preliminary inquiries, the petitioner prays that the FIR be quashed and police authorities directed to take no further coercive action in the matter. [Read more]
Manoj Oswal v. Union of India – The petitioner is a social activist and Unit Head of animal rights’ organization, ‘People for Animals’, and seeks to declare Section 66A of the IT Act as unconstitutional and violative of Article 14, 19(1)(a) and 21 of the Constitution of India. The petitioner argues that Section 66A is vague and ambiguous, does not pass the test of ‘reasonable restriction’ under Article 19(2), and is inconsistent with the object of IT Act. He further submits that Section 66A goes against the settled criminal jurisprudence by prescribing the same punishment for a minor offence as well as for a major offence without having the severity of the offence as a basis for the punishment to be proposed. The petitioner also argues that the fact that a person is amenable to be booked under two different statutes (i.e. the IT Act and other penal acts such as IPC) prescribing two different punishments for the same offence is violative of Article 21 of the Constitution of India. [Read more]
Internet & Mobile Association of India v. Union of India – This petition has been filed by IAMAI – an industry association – challenging the constitutionality of Section 79(3)(b) of the Information Technology Act, 2000 and sub-Rules (2)(b), 4 and 7 of Rule 3 of the Information Technology (Intermediary Guidelines) Rules, 2011. The petitioner alleges that these provisions are violative of Article 14, 19 and 21 of the Constitution and thereby unconstitutional.
The petitioner argues that while under the Copyright Act, an intermediary has to refrain access to content only for 21 days upon receiving a complaint after which the complainant has to secure a court order to support his claim, default of which the content will be accessible again to public at large, no such protection has been offered to intermediaries under Section 79(3)(b) of the IT Act. The lack of protection given to intermediaries under Copyright Act makes Section 79(3)(b) arbitrary and discriminatory and thereby violative of Article 14. Also, the content sought to be restricted under Section 79(3)(b) is violative of Article 19(1)(a) as it has a ‘chilling effect’ over user’s speech. The user is not given any notice of takedown of content or an opportunity to give an explanation and such a restriction goes beyond state’s power to regulate speech under Article 19(2). Rule 2(b) has been alleged to be excessively vague for using terms for which no codified definition exists, and violative of Article 19(1)(a) for making unreasonable restrictions on free speech. Rule 3(4) has been argued to be ultra vires to parent statute as it imposes a proactive duty on intermediaries to monitor user data while no such obligation exists upon intermediaries under Section 79(3)(b). Rule 3(7) has been argued to be violative of the users’ right to privacy recognized as being part of Article 21. The petitioner accordingly has sought from the court that Section 79(3)(b) of IT Act and sub-Rules (2)(b), 4 and 7 of Rule 3 Intermediary Guidelines be declared unconstitutional and violative of Article 14,19,and 21. [Read more]
Supreme Court and The IT Act
By SFLC_ADMIN | FEBRUARY 20, 2014
Since its introduction back in October 2000, the Information Technology Act has proved to be a highly controversial piece of legislation. In its thirteen-odd years of operation, the Act has managed to draw considerable criticism from the legal community and the general public. It is alleged to contain a whole spectrum of flaws, shortcomings and pitfalls ranging from being inefficient in tackling cyber crimes to placing unfair curbs on the civil liberties of citizens.
Making matters worse, a 2008 Amendment introduced to the Act the now-infamous Section 66A, which reads:
Any person who sends, by means of a computer resource or a communication device:
a) any information that is grossly offensive or has menacing character; or
b) 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 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.
The offence under 66A being cognizable, police authorities were initially empowered to arrest or investigate without warrants, based on charges brought under the Section. This resulted in a string of highly publicized arrests of citizens for posting objectionable content online, where the ‘objectionable’ contents were more often than not, dissenting political opinions. Some relief against this was granted in the form of an advisory issued by the Central Government in January 2013, which said no arrests under 66A were to be made without prior approval of an officer not below the rank of Inspector General of Police. However, the advisory was mostly ignored by authorities since it was issued by the Central Government while law and order is for the State Governments to administer.
Apart from Section 66A, the Information Technology (Intermediaries Guidelines) Rules, 2011 have also seen their fair share of criticism. While Section 79 exempts intermediaries from liability in certain cases, the Rules water down these exemptions and force intermediaries to screen content and exercise on-line censorship. Additionally, the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 provide for blocking of web pages without proper publication or notice to public containing the reasons for blocking. The process of blocking is undisclosed and fails to meet Constitutional safeguards of natural justice.
Matters have now come to a head before the Apex Court, where a series of cases have been scheduled to be taken up together, all challenging various aspects of the IT Act and associated Rules, among which Section 66A features with much prominence.
Shreya Singhal v. Union of India – Concerned by the recurring arrests made under Section 66A, this petition was filed in public interest before the Supreme Court challenging the constitutionality of 66A. The petitioner argues that the impugned Section is too broad in its sweep and contains several undefined words/terms, making it susceptible to wanton abuse. This creates a ‘chilling effect’ where citizens are severely disincentivized from exercising their constitutionally protected right to free speech for fear of frivolous prosecution. Thus, Section 66A is violative of Articles 14, 19 and 21 of the Constitution of India that guarantee citizens the Fundamental Rights to equality, free speech and life respectively. In addition to declaring Section 66A as unconstitutional, the petitioner urges the Court to issue a guideline stipulating the treatment of all offences involving free speech concerns as non-cognizable. [Read more]
In the course of proceedings, the Supreme Court through an interim order directed the State Governments to ensure compliance with the Central advisory issued in January 2013, thereby ensuring that no arrests under Section 66A are made without prior approval.
Rajeev Chandrashekhar v. Union of India – Filed by a serving Member of Parliament, Rajeev Chandrashekhar, this public interest petition seeks to declare Section 66A and certain provisions of the Information Technology (Intermediaries Guidelines) Rules, 2011 as unconstitutional. The petitioner points out that Section 66A is ambiguous in its phraseology and imposes statutory limits on the exercise of internet freedom. Further, the Intermediaries Guidelines Rules are similarly ambiguous and require private intermediaries to subjectively assess objectionable content. They actively water down the exemptions from liability granted to intermediaries by Section 79 of the IT Act, and prescribe unfeasibly minuscule time-frames for the removal of objectionable content. Section 66A of the Act, and the Rules are thus violative of Articles 14, 19 and 21 of the Constitution and the petitioner prays that they be declared as such. [Read more]
Common Cause v. Union of India – Spurred by the 66A arrests, this petition was filed in public interest before the Supreme Court challenging the constitutionality of Sections 66A, 69A and 80 of the IT Act. It is argued that the grounds for incrimination under 66A are beyond the scope of reasonable restrictions on Fundamental Rights allowed by Article 19(2) of the Constitution. In addition, the vagueness of language invites blatant transgressions of Fundamental Rights. Section 69A, which effectively enables State-censorship of the internet, neither provides for a redressal mechanism on censorship, nor does it contain provisions with respect to unblocking of blocked content. Further, Section 80 of the Act grants unbridled powers to the police to arrest or investigate without warrant, any person suspected of having committed an offence under the Act. The petitioner argues that these provisions stand in violation of Articles 14, 19 and 21 of the Constitution, and are thus liable to be set aside. [Read more]
Dilipkumar Tulsidas v. Union of India – This petition was filed before the Supreme Court in public interest, based on the lack of a regulatory framework for the effective investigation of cyber crimes, coupled with a lack of awareness regarding cyber crimes on the part of police authorities. In the absence of proper procedures for investigation and safeguards, citizens are vulnerable to police harassment. There is also no uniformity in cyber security control and enforcement practices. While the IT Act has provided that any police officer of the rank of sub-inspector can investigate cyber offences, there are no provisions for training or knowledge for such officers in order to properly equip them to handle cyber crimes. The petitioner thus prays that the Supreme Court formulate, and also direct the respondents to formulate an appropriate regulatory framework of Rules, regulations and guidelines for the effective investigation of cyber crimes, keeping in mind the Fundamental Rights of citizens. He also prays that the Court direct the respondents to carry out awareness campaigns particularly for investigating agencies, intermediaries and the judiciary regarding the various forms of cyber crimes sought to be penalized. [Read more]
People’s Union for Civil Liberties v. Union of India – This writ petition was filed in public interest before the Supreme Court as there are instances of complaints under Section 66A of the IT Act as well as misuse of the Rules framed under the Act all over the country despite the SC directing compliance with the Central Advisory in Shreya Singhal v. UoI. Due to the vague and undefined purported offences contained within 66A, the power to punish speakers and writers through arrest and threat of criminal trial is at the first instance granted to complainants with offended sentiments and police officials.
A significant proportion of the offences in Section 66A do not even fall within the permissible categories of restriction in Article 19(2) of the Constitution. Further, the Intermediaries Guidelines Rules provide for vague and undefined categories that require legal determinations and effective censorship by private online service providers. The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 provide for blocking of web pages without proper publication or notice to public containing the reasons for blocking. The process of blocking is entirely secret and ex facie fail to meet constitutional safeguards of natural justice. The petitioner argues that these provisions violate Articles 14, 19 and 21 of the Constitution and requests their suspension. In the alternative, the petitioner requests the notification of certain guidelines towards ensuring their fair operation. [Read more]
MouthShut.com (India) Pvt. Ltd. v. Union of India – This petition was filed in before the Supreme Court towards quashing the Intermediaries Guidelines Rules. They force intermediaries to screen content and exercise on-line censorship. While a private party may allege that certain content is defamatory or infringes copyright, such determinations are usually made by judges and involve factual inquiry and careful balancing of competing interests and factors, which the intermediaries are not equipped to make. Thus, it is argued that the Rules liable to be set aside as they contain arbitrary provisions which place unreasonable restrictions on the exercise of free speech and expression, as well as the freedom to practise any profession, or to carry out any occupation, trade or business as guaranteed by Articles 19(1)(a) and 19(1)(g) of the Constitution. They are also liable to be struck down because of their failure to conform to the Statute under which they are made and exceeding the limits of authority conferred by the enabling IT Act. [Read more]
Taslima Nasrin v. State of UP – This petition was filed by Bangladeshi author Taslima Nasrin, seeking to quash an FIR filed against her under Section 66A, on the basis of certain tweets made by her against an Islamic leader and reported in a Hindi newspaper. It is argued that the wide language used in Section 66A, coupled with the use of vague/undefined terms, makes it susceptible to abuse and thus, the Section falls foul of Articles 14 and 21 of the Constitution. It is also accused of placing unreasonable restrictions on free speech. For these reasons, and since the FIR in question was filed without conducting the appropriate preliminary inquiries, the petitioner prays that the FIR be quashed and police authorities directed to take no further coercive action in the matter. [Read more]
Manoj Oswal v. Union of India – The petitioner is a social activist and Unit Head of animal rights’ organization, ‘People for Animals’, and seeks to declare Section 66A of the IT Act as unconstitutional and violative of Article 14, 19(1)(a) and 21 of the Constitution of India. The petitioner argues that Section 66A is vague and ambiguous, does not pass the test of ‘reasonable restriction’ under Article 19(2), and is inconsistent with the object of IT Act. He further submits that Section 66A goes against the settled criminal jurisprudence by prescribing the same punishment for a minor offence as well as for a major offence without having the severity of the offence as a basis for the punishment to be proposed. The petitioner also argues that the fact that a person is amenable to be booked under two different statutes (i.e. the IT Act and other penal acts such as IPC) prescribing two different punishments for the same offence is violative of Article 21 of the Constitution of India. [Read more]
Internet & Mobile Association of India v. Union of India – This petition has been filed by IAMAI – an industry association – challenging the constitutionality of Section 79(3)(b) of the Information Technology Act, 2000 and sub-Rules (2)(b), 4 and 7 of Rule 3 of the Information Technology (Intermediary Guidelines) Rules, 2011. The petitioner alleges that these provisions are violative of Article 14, 19 and 21 of the Constitution and thereby unconstitutional.
The petitioner argues that while under the Copyright Act, an intermediary has to refrain access to content only for 21 days upon receiving a complaint after which the complainant has to secure a court order to support his claim, default of which the content will be accessible again to public at large, no such protection has been offered to intermediaries under Section 79(3)(b) of the IT Act. The lack of protection given to intermediaries under Copyright Act makes Section 79(3)(b) arbitrary and discriminatory and thereby violative of Article 14. Also, the content sought to be restricted under Section 79(3)(b) is violative of Article 19(1)(a) as it has a ‘chilling effect’ over user’s speech. The user is not given any notice of takedown of content or an opportunity to give an explanation and such a restriction goes beyond state’s power to regulate speech under Article 19(2). Rule 2(b) has been alleged to be excessively vague for using terms for which no codified definition exists, and violative of Article 19(1)(a) for making unreasonable restrictions on free speech. Rule 3(4) has been argued to be ultra vires to parent statute as it imposes a proactive duty on intermediaries to monitor user data while no such obligation exists upon intermediaries under Section 79(3)(b). Rule 3(7) has been argued to be violative of the users’ right to privacy recognized as being part of Article 21. The petitioner accordingly has sought from the court that Section 79(3)(b) of IT Act and sub-Rules (2)(b), 4 and 7 of Rule 3 Intermediary Guidelines be declared unconstitutional and violative of Article 14,19,and 21. [Read more]
The Supreme Court has directed that
the above-mentioned cases will be heard ‘on merit’ and no direction on the next
date of hearing has been issued. The scheduled hearing will be interesting, to
say the least, since several substantial questions of law have been raised in
the collective, the answers to which will have far-reaching implications on
Indian technology law and the civil liberties of its citizens. It is now time
to cross our metaphorical fingers and wait for the Apex Court of the country to
deliver what will hopefully be a landmark decision that carefully balances the
interests of all stakeholders involved in India’s technology regulatory
framework.
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