Clarity required on ‘infirmity’ in Section 66A, IT Act 2000

A bench of Justices J. Chelameswar and S.A. Bobde of the Apex Court, while hearing contention of Centre in a case of posting objectionable comments on social websites by some persons sought clarity on ‘infirmity’ in Section 66A of the Information Technology Act 2000 (IT Act). Court recognized that misuse of Section 66A in case of “unpalatable political activity” had to be checked and said for individuals in the public sphere, the ambit of the section had to be defined.

The substance of the proceedings before the apex court was, Whether Section 66A of the Information Technology Act, 2000 (IT Act), which provides punishment for sending offensive messages through a communication service a flawed law, or is it just being improperly implemented? The bench further observed that if the law was being abused, on a case to case basis, the same could be looked into instead of striking down the entire provision. Court further wanted to see the infirmity in the law.

Section 66A of the Information Technology Act, 2000 deals with punishment for sending offensive messages through communication service etc., under which any person who sends, by means of a computer resource or a communication device;

  1. Any information that is grossly offensive or has menacing character; or
  2. 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,
  3. 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.

For the purpose of Section 66A of the Information Technology Act, 2000 terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

Now the issue for debate is whether Section 66A of the Information Technology Act, 2000 is in violation of the fundamental right to freedom of speech and expression guaranteed under Article 19 (1) (a) of the Indian Constitution. At the same time, Article 19(2) prescribes reasonable restrictions on the right to freedom of speech and expression when the same is in the interests of public order, decency, morality, defamation, contempt of court, sovereignty and integrity of the country and security of India.

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