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The Sword of Damocles Hanging…By V.V.Hariprasad

The Information Technology Act 2000 is master piece legislation and a historic technical one which India has witnessed. One  can say that as the feeling of love is a great motivation to lead a successful and emotional life, coincidentally “ I LOVE YOU “ virus was also one of the motivating factors to enact IT Act 2000 legislation.. But sadly it took the infamous Bombay blast incident which shook the parliament for amending the said Act by bringing The “IT (Amendment)Act, 2008”.

Till September 2011 Delhi’s economic offences wing had received 151 complaints regarding misuse of social networking sites, fake profiles and cyber stalking – a jump  of 100 per cent over the 75 complaints they have got over the entire 2010.

More than 29.9 million people in India are estimated to have fallen victims to cybercrime in 2010 resulting in direct financial losses to the tune of US dollar 4 billion and an additional USD 3.6 billion was spent in resolving the crime. However globally the cash cost of cybercrime was estimated at USD 114 billion. This was revealed in the annual Symantec – Norton Cybercrime report for 2011 about a decade back.

What is section 66A of IT ACT?

Section 66A of the IT act reads: “Any person who sends by any means of a computer resource any information that is grossly offensive or has a menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult shall be punishable with imprisonment for a term which may extend to three years and with fine.”

How this section was made applicable

  • In September 2012, a freelance cartoonist Aseem Trivedi was arrested under the Section 66A of the IT Act, Section 2 of Prevention of Insults to National Honor Act, 1971 and for sedition under the Section 124 of the Indian Penal Code. His cartoons depicting widespread corruption in India were considered offensive.
  • On 12thApril 2012, a Chemistry professor from Jadavpur University, Ambikesh Mahapatra, was arrested for sharing a cartoon of West Bengal Chief Minister Mamata Banerjee and then Railway Minister Mukul Roy. The email was sent from the email address of a housing society. Subrata Sengupta, the secretary of the housing society, was also arrested. They were charged under Section 66 A and B of the IT Act, for defamation under Sections 500, for obscene gesture to a woman under Section 509, and abetting a crime under Section 114 of the Indian Penal Code.
  • On 30thOctober 2012, a Puducherry businessman Ravi Srinivasan was arrested under Section 66A. He had sent tweet accusing Karti Chidambaram, son of the then Finance Minister, Chidambaram of Corruption. Karti Chidambaram had complained to the police.

Petitions challenging constitutionality

In November 2012, IPS officer Amitabh Thakur and his wife social activist Nutan Thakur filed a petition in the Lucknow bench of the Allahabad High Court claiming that the Section 66A of IT Act violated the freedom of speech guaranteed in the Article 19(1) (a) of the Constitution of India. They said that the section was vague and frequently misused.

In August 2014, the Supreme Court asked the central government to respond to petitions filed by the Internet and Mobile Association of India (IAMAI) which claimed that the IT Act gave the government power to arbitrarily remove user-generated content

Posts in the past

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 after one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death and the other ‘liked’ it. She argued that the Section 66A was vaguely phrased, as result it violated Article 14, 19 (1)(a) and Article 21 of the Constitution. The PIL was accepted on 29 November 2012.

In the wake of numerous complaints of harassment and arrests, the apex court had on May 16, 2013 issued 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.

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 SC in this regard alleging that its advisory was violated after which the apex court asked UP police to explain the circumstances leading to the arrest of the boy.

Revocation by the Supreme Court

On 24 March 2015, the Supreme Court of India gave the verdict that Section 66A is unconstitutional in its entirety. The court said that Section 66A of IT Act 2000 is “arbitrarily, excessively and disproportionately invades the right of free speech” provided under Article 19(1) of the Constitution of India. But the Court turned down a plea to strike down sections 69A and 79 of the Act. Section 69A provides power to issue directions to block public access of any information through any computer resource and 79 provides for exemption from liability of intermediary in certain cases

The apex court has struck down the provision in the cyber law which provides police power to arrest a person for posting “offensive” content online and provides for a three-year jail term. It pronounced its verdict on a batch of petitions challenging constitutional validity of certain sections of the cyber law.

Here are five points observed by the SC in its verdict:

1. Describing liberty of thought and expression as “cardinal”, a bench of justice J Chelameswar and Justice RF Nariman said, “The public’s right to know is directly affected by section 66A of the Information Technology Act.”

Nariman, who pronounced the verdict in a packed court room, said that the provision “clearly affects” the fundamental right to freedom of speech and expression enshrined in the Constitution.

2. Elaborating the grounds for holding the provision “unconstitutional”, the court 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 judgments of UK courts which reached different conclusions on whether the material in question was offensive or grossly offensive.

3. “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.”

Midle of the post

The bench rejected the assurance given by the 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.

4. “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.

Subsequent changes

On 2ndApril 2015, the Chief Minister of Maharashtra, Devendra Fadnavis revealed to the state assembly that a new law was being framed to replace the repealed Section 66A. Fadnavis was replying to a query Shiv Sena leader Neelam Gorhe. Gorhe had said that repeal of the law would encourage online miscreants and asked whether the state government would frame a law in this regard. Fadnavis said that the previous law had resulted in no convictions, so the law would be framed such that it would be strong and result in convictions.

Social media

Social media are interactive technologies that allow the creation or sharing/exchange of information, ideas, interests, and other forms of expression via virtual communities and networks.

Misuse of Social media

Some misuses that are associated with the social media are:

Defamation: The most affected people through social media are politicians and celebrities

False and unreliable information:

Apart from defamation, there is increasing misuse of the social networking sites for providing false and un reliable information.

Sexual hunters:

The biggest issue with social media networking sites is sexual predation associated with loss of privacy. There are many students who upload outrageous pictures as profiles and they do not think before posting. Youngsters also enter personal information that may have a phone number or can be obtained by chatting.

Sexual predators make use of this information for many reasons. It is important to understand that social networking is anonymous and anybody can develop a fake profile. There are many surveys that conclude that about 25% agreed that they have fake profiles. With such fake profiles, sexual predators can get related or convince youngsters.

 Cyber bullying:

By making use of the internet or some other technology when individuals abuse others it is termed as cyber bullying. The base platform is social media networking for such issues. The main reason to blame social media is that it’s simple and fast to initiate a nasty rumor, comment, upload embarrassing photos, or send an intimate message.

A recent survey about British teenagers has mentioned that about 37% of youngsters have a profile just to prank peers. They can hack others personal life and also send abusive messages too.

Section 66 A of Information technology Act was a sword of Damocles hanging over the heads of those who were misusing the social media .As the section was revoked  by the Apex court the following change was contemplated by Government of India.

Contemplated Change by Government of India

On 13 April 2015, it was announced that the Ministry of Home Affairs would form a committee of officials from the Intelligence Bureau, Central Bureau of Investigation, National Investigation Agency, Delhi Police and ministry itself to produce a new legal framework. This step was reportedly taken after complaints from intelligence agencies that, they were no longer able to counter online posts that involved national security matter or incite people to commit an offence, such as online recruitment for ISIS. Former Minister of State with the Ministry of Information Technology, Milind Deora has supported a new “unambiguous section to replace section 66A. of IT Act.

conclusion: There is an imperative need for the Central govt. to take necessary steps to replace section 66 A of IT Act with an unambiguous section at the earliest so that those who misuse the social media are not allowed to get off scot free.

  • (The writer of the article a retired Dy.C.F is presently an Advocate who teaches Cyber laws and IPR in the Central University, Hyderabad as a guest faculty.).








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