Supreme Court seeks clarity on ‘infirmity’ in Section 66A

Apex court says misuse of the section under IT Act in case of ‘unpalatable political activity’ has to be checked


The court 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. Photo: Mint
The court 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. Photo: Mint

New Delhi: Is 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?

That was the substance of the proceedings in the Supreme Court on Tuesday as the apex court sought to understand the “infirmity” in the provisions of the IT Act being challenged before it through several petitions. Petitioners Shreya Singhal and non-profit Common Cause, who concluded their arguments on Tuesday, have challenged the constitutionality of the section.

A bench of justices J. Chelameswar and S.A. Bobde 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 court 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. “(we) want to see the infirmity in the law,” the court said.

Singhal, who was represented by senior lawyer Soli Sorabjee, argued that Section 66A was unconstitutional because it violated the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Indian constitution. Further, the provision penalises speech and expression on grounds outside the purview of the reasonable restrictions contained in Article 19(2) of the Indian constitution.

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. Section 66A penalizes speech and expression on ground that it causes “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”, which Sorabjee said was “vague” and could be subjectively interpreted.

Lawyer Prashant Bhushan, appearing for Common Cause, argued Sections 66A, 69A (power to issue directions for blocking for public access of any information through any computer resource) and 80 (power of police officer and other officers to enter, search) of the IT Act were “capable of easy abuse”.

Non-governmental organization People’s Union for Civil Liberties on Tuesday argued nothing was clearly defined in Section 66A. The court will continue hearing the case on Wednesday.

Challenges raised to the intermediary rules will be heard after the arguments on the provisions of the IT Act.

Singhal’s challenge came in 2012 in light of the arrest of Mumbai-based Shaheen Dhada for criticizing on social media the city’s shutdown after Shiv Sena chief Bal Thackeray’s death.

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