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In the case of Shreya Singhal Supreme Court struck down section 66A of Information Technology Act. The author has analyzed the said judgment and put forward his own views about the judgment. The author dissents with the judgment by Hon. Supreme Court and has its own explanations for the same. This critical review is only for academic purpose and debate and doesdoes not constitutes disrepute of the Highest legal institution of the land.

With humble submission and with due respect to Hon. Judges’ and entire judicial system, in my views, “The judgment has been pronounced almost two years ago and its impact is such that it’s still debated and discussed on many forums. When issue about protection of Fundamental rights of people in Cyberspace arises, this judgment is often at the center stage. The background matter of the case is that one girl put certain comments about an incident which according to her was not proper and this comment was liked by her friend. Some people felt irritated / annoyed by the comment and lodged a police complaint and hence FIR was registered against the girls under available provisions of I T Act. The matter was very hotly debated on media as well as social and huge media trial initiated before the commencement of the present litigation. In present litigation, which was filed by persons in public interest, the courts pronounced that section 66A is unconstitutional and should be struck down.  

Author feels as per his understanding and without intention to disrespect anyone and only with a view to critically analyze the impact of said decision that court failed to consider the backdrop or context of the comments and magnitude of the social media and its destructive capability. The court only saw whether there is present and imminent danger due to those comments but failed to foresight the consequences which might have happened if police have not acted in such manner and registering the offense. It is always mandatory to understand the ground realities and the intentions of the lawmakers for adding this provision while enactment. Taking into account the growing trends of social media and need to regulate and discipline the same these provisions of 66A were enacted. The statement of objects and reasons makes it clear that a rapid increase in use of computer and internet has given rise to new forms of crimes related to data, pornography, e-commerce activities and offensive messages through communication services and penal provisions are required to be included in I T Act to prevent such crimes. The ever growing social media was/is unregulated and presently anarchy is prevailing in it due to non availability of any disciplinary measures. Section 66A was the first attempt to regulate the same and this fair intention behind the drafting of 66A was totally ignored by the Hon Court. The pure technical issue like definition is not elaborated or words used are not properly defined shows pre-mediated and biased mindset. The judges rather than adopting open ended views kept their views very narrow and missed a golden opportunity to regulate and discipline the cyberspace. As observed by Hon. Judges that the most of the definitions are kept as open-ended, it must be understood that this law aimed at regulating an arena which is most dynamic and caters to most innovative and unimaginative happenings, which no lawmaker can think of in advance.

The functions of legal provisions are not only retaliatory but sometimes aimed as proactive and deterrent for the infringers. By the same logic by which the Section 66A was struck down, the drunk drivers tests carried out by the police authorities can also be challenged. A person is presumed to be innocent till he is pronounced guilty by the court makes it clear that unless courts pronounce their judgments, even if a person is accused of some offense he is treated to be at equal with others. By mere accusation nobody becomes a criminal and ultimately courts will decide whether accusations by police are substantiated by the evidences or not. But this logic doesn’t prohibit police from registering the offenses and initiate the initial investigation on the ground that in later stages courts will acquit the person. So by same logic by mere registration of offense under section 66A wherein terms were not adequately defined, court had this opportunity to define and elaborate those terms and in many cases courts have assumed those responsibilities on themselves like in Vishakha case. Rather than initiating a proactive measure of defining the terms to its common man’s understanding language courts opted for safest exit root by scrapping the entire provision and thereby defeating the whole intention of enactment of section 66A.

 The courts had cited, “The reasonableness of the restraint requires to be judged by the magnitude of the evil which it is the purpose of the restraint to curb or to eliminate.[1]” The court themselves were not clear about whether restraint needs to be followed in cyberspace which is used by all sections of society with all age groups, while posting anything on social media and what is magnitude and reach of social media. Courts were not able to judge the trans-border virtual reach of the social media posts. How emotions can be ignited by use of the same within fraction of seconds and what could be its damaging capacity. As the globe has rarely witnessed the mass destructive capacity of this weapon of mass destruction(wmd), the courts would have thought that this wmd concept is a myth and will never come in reality and hence social media needs clear understanding about which acts will be legal and which acts will not. So it was the responsibility of law to be ethical and reasonable for fighting unethical and unknown and unreasonable elements and enemies of the nation.

 Surprisingly court cited, “The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and the urgency of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at the time, should all enter into the judicial verdict.[2]” Court grossly failed to take notice of underlying purpose of the enactment that new forms of crimes are coming up and imminent need is to fight those crimes with penal provisions. The crimes modus operandi is innovative and fighting mechanism is not in place and in such situation best way is to have certain penal provisions which would act as deterrent to criminals. Courts failed to appreciate the urgency required and shown by government in enacting the section 66A to fight this evil and rather went on to discuss pure legal issue that words used were not properly defined. Court’s failed to understand the need of provisions under present scenario and its future consequences.

Also courts cited, “It may be noticed that clause (2) uses the words “in the interests of public order” and not “for the maintenance of public order”. A law may not be designed to directly maintain law and order yet it may be enacted in the “interests of public order”. Also, not only such utterances as are directly intended to incite disorder, but also those that have the tendency to lead to disorder fall within the expression.[3].” So even by going the citation even if the utterances are not directly intended to incite disorder but have tendency to lead to disorder, were termed as prohibitive. So here also court has taken a pragmatic view that words themselves may not be directly intended to do certain acts but might have tendency to incite those acts. So similarly the words may not been defined properly in definition sections but the intentions of those words were very clear and the person who used due diligence to read those words carefully will certainly understand that what those words were intended for. So while pronouncing the judgment, the over reliance of court on words are not defined and hence entire acts needs to be struck down does not go well with the researcher.  

On top of it Sec 66 A started with "Punishment for Sending offensive messages through communication services" This needs no more explanation. The intention of law makers was very clear in Title itself. There can not be no confusion in anyone's mind that what amounts to offensive message. But unfortunately this was never debated by defendants.

 The author thinks that the circumstances under which the legal provisions were enacted and the development of cyberspace there after was not properly brought before the notice of the court. The political developments in entire process of litigation also played crucial role in government’s defense policy. Those who were proactive and more vocal of scrapping section 66A suddenly were required to defend the constitutionality of the section and hence matter was not properly defended before the court. The author concludes that a golden opportunity to provide new dimensions to section 66A in the present scenario was missed by the court and also till date no new legislation is enacted to regulate messages through social media and this has resulted into anarchy in cyberspace.

Other dimension of the judgment was that there was a possibility of application of principle of severability for provision 66 A(c) and it could have been saved. 66A(c) read as: Any person who sends, by means of a 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 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. At least this provision should not have struck down as meanings were self explanatory and normal citizen would have understood it by plain reading. The retention of this provision would have acted as deterrent to perpetrators of spam mails or phishing scams or those who indulge in spoofing crimes.

[1] 1970 AIR 1453
[2] Ebrahim Vazir Vs St of Baombay 1954 AIR 229
[3] Ramji Lal Modi v. State of U.P., AIR 1957 SC 620

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Category Constitutional Law, Other Articles by - mahendra limaye