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Scrapped But Not Gone: This Provision Is Still Curbing Freedom Of Speech

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In the present times, freedom of speech has come under attack to a great extent. In such grave circumstances, the incessant use of a scrapped provision that was meant to curb freedom of speech and expression further deteriorates the situation.

It is very imperative to note that the controversial Section 66A of IT Act, 2000 was struck down by the Supreme Court of India as unconstitutional on 24th March 2015, in Shreya Singhal v. Union of India. This Section criminalized speech over computers or communication devices if such communication was “grossly offensive or menacing”; and if the author is aware that the information is not true and meant for the purpose of causing inconveniences, insult, annoyance, danger, obstruction, injury, criminal intimidation, enmity hatred or meant to mislead or deceive the recipient about the origin of such messages, etc, shall be punishable with imprisonment up to three years and with fine.

However, the apex court struck down this provision as a consequence of petitions that were filed challenging the validity of certain sections of the cyber law.

While expounding the liberty of thought and expression as fundamental and cardinal, a bench of Justices J. Chelameswar and R.F. Nariman announced, “The public’s right to know is directly affected by section 66A of the Information Technology Act.”

The bench said, adding, “What may be offensive to a person may not be offensive to the other.”

It is to be noted that the terms such as ‘inconvenient’ and ‘grossly offensive’ used in the provision were not very much clearly described. This matter was rightly highlighted by the apex court in its verdict. Owing to the absence of any concrete explanation of such terms, the apex court posited that difficulty may arise for the law enforcement agency and the offenders to perceive the ingredients of the offence.

Moreover, the bench in the apex court posited that a difficulty may arise while deciding as to what is offensive and what is grossly offensive. The bench further said, adding, “What may be offensive to a person may not be offensive to the other.”

Nevertheless, the provision never became dead and people were continuously booked under such a provision.

On July 5, 2021 the apex court issued a notice to the Centre expressing its shock over discovering the judgement that scrapped Section 66A of the IT Act several years ago has not been implemented even now. The notice surfaced during the hearing of a plea filed by PUCL that raised the issue that even after seven years of the law being struck down, a total number of 745 cases, as of now, are still pending and active before the district courts in eleven states, wherein the accused persons are being prosecuted for offences under Section 66A of the IT Act.

Is such an irresponsible error on the part of the government a deliberate attempt to curb the freedom of expression and speech? If not, who is going to take the responsibility of causing such damage to the democratic fabric of our country?

We know that Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of speech and expression. Nonetheless, Article 19(2) allows the government to make a law that imposes reasonable constraints upon freedom, in the interests of specified categories such as: “public order”, “decency or morality”, “defamation”, and so on. However, the terms used in Section 66A –
“grossly offensive”, “menacing”, causing “annoyance” were so broad that they had much greater scope than the 19(2) categories such as public order or defamation.

It is to be noted that Section 66A has a history of putting people behind the bars for trivial matters.

For instance, two girls were arrested after one of them posted a comment against the shutdown in Mumbai following Shiv Shena leader Bal Thackeray’s demise. The other girl just ‘liked’ the comment.

Furthermore, in 2017, a youth from the state of Uttar Pradesh was booked under the provision of 66A for criticizing the state’s Chief Minister on Facebook.

Furthermore, in 2013 Kanwal Bharti, a poet and writer was arrested by police in Uttar Pradesh for posting a message on Facebook that criticized the Uttar Pradesh government for suspending an IAS officer who had cracked down on the sand mafia.

Such a provision has the prospect of being used for the political witch-hunt of the activists, academics, students, journalists who often express their dissent against the government on various social media platforms.

With the existence of such a draconian provision, a democratic state can easily transfigure into a dictatorship which was evident in the Soviet Union under Stalin’s regime. In fact, a democracy can thrive only in an environment where criticisms are widely welcome and tolerated. The flow of criticisms and opinions proffer various alternatives to deal with any economic, political and social crisis.

Therefore, the government must ensure that the use of draconian and scrapped provisions such as Section 66A of IT Act 2000 comes to an end and thus help to strengthen the democratic fabric of our country.

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