The Supreme Court on July 5, 2021 heard a plea filed by Peoples Union for Civil Liberties (PUCL), a human rights body, that highlighted the continued use of Section 66A of the Information Technology Act 2000 despite it being scrapped by the top court in 2015.

The SC had termed the provision, which criminalised the sending of "offensive" or "menacing" messages online, as "open-ended and unconstitutionally vague" in its judgement six years ago. But the PUCL highlighted, in its Public Interest Litigation (PIL), that since it was struck down on March 24, 2015, 1,307 cases had been registered under the Section across the country.

The apex court bench, headed by Justice RF Nariman, called this continued use by law enforcement agencies a "shocking state of affairs" and asked the Centre to file a counter affidavit.

But what is Section 66A and why was there a need to scrap it? FactChecker delved deeper into the history of the provision and also spoke to two experts: advocate Shreya Singhal, on whose petition the section was struck down in 2015, and Tanmay Singh, Associate Litigation Counsel, Internet Freedom Foundation (IFF), a not-for-profit that conducts advocacy on digital rights and liberties.

How did Section 66A come in to being?

The IT Act provided legal recognition to e-commerce in 2000 when the IT sector had just started to flourish in the country. It dealt with issues like digital signatures, electronic filings, security of electronic data, etc to make online trade transparent and safe. The advent of technology and internet gave way to cybercrime and the Act only made a passing reference to cybercrime.

In 2005, an expert committee was set up to review the Act and address the need for regulating cyber forensics and cybercrime. The Act was then amended to deal with various forms of cybercrime in 2009 like sending offensive emails and multimedia messages, child pornography, cyber terrorism, publishing sexually explicit materials in electronic form, video voyeurism, e-commerce frauds like cheating by personation (phishing), identity theft, etc.

"The provision was aimed to deal with cybercrimes against women, especially to punish those sending 'vulgar mobile phone SMSes to women'," said Singh.

It was through this amendment that Section 66A was integrated into the Act and came in to effect from October 25, 2009. "The 2009 amendment was passed by Lok Sabha without any debate and in 6 minutes," Singhal told FactChecker.

In a 2016 article published in Bharati Law Review journal, Dipa Dube, Professor at Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology, Kharagpur, and Sumedh Mool, a data scientist and alumnus of the institute, called the amendment "a knee jerk reaction to the terrorist attack in Mumbai on November 26, 2008". "The provisions in the amendment were neither well thought, nor well debated, to say the least," read the article.

What did Section 66A entail?

The Section was included to criminalise sending "offensive" messages through a computer or other communication devices. According to the IT Act, any person who sends, by means of a computer resource or a communication device-

(a) any information that is grossly offensive or has menacing character; or

(b) 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; or

(c) 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.

The genealogy of this Section may be traced back to Section 10(2)(a) of the UK Post Office (Amendment) Act, 1935, which made it an offence to send any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character. "The same (verbatim) Section in the UK (which the Indian Government adopted verbatim) was removed years before the challenge in 2015," said Singhal.

According to the 50th Standing Committee Report on Information Technology 2007-08, the Secretary of the Department of Information Technology had said that the punishments under the law had been rationalised to help in the growth of the IT industry and check undue harassment of ignorant citizens unaware of the nuances of cyber laws.

Major developments under Section 66A

Section 66A of the IT Act, "a draconian law" according to Singhal, was found to be vaguely worded and owing to the lack of guidelines for proper implementation, many cases with no criminal ingredient were registered.

"Section 66A was violative of people's fundamental right to freedom of speech and expression; and contained subjective and vague terminology such as "grossly offensive or has menacing character" which permitted law enforcement agencies to mould its definition at their desire and willingness to interpret it," said Singh.

Arrests were also made on the basis of social media posts directed at notable personalities, including politicians. Some of the cases which made headlines are:

In October 2012, 45-year-old Ravi, a small-scale industrialist in Puducherry, was arrested after he tweeted allegedly "offensive" content against the then Union Finance Minister P Chidambaram's son Karti Chidambaram. Ravi had allegedly posted that Karti Chidambaram had amassed more wealth than businessman Rober Vadra.

In November 2012, after the death of Shiv Sena patriarch Bal Thackeray, Mumbai was in a state of shutdown since many people had taken to the streets to pay homage to the leader. Two girls from Thane district criticised the bandh. One of them had posted the allegedly illegal content, while another simply 'liked' it. Within hours of the post and subsequent 'like', the two were arrested and charged under Section 295A of the Indian Penal Code and Section 66A of the IT Act.

"Since the insertion of Section 66A, wide powers of the section were frequently used to stifle political dissent. Although the girls were released later and the criminal charges against them were dropped, it evoked severe criticism all over the country," said Singh from IFF, which is supporting PUCL with research and execution in the current SC case.

On March 16, 2015, a Class 11 student in Bareilly was arrested after he shared a comment on Facebook that was attributed to Samajwadi Party MP Azam Khan. The boy was arrested after Khan's aide filed a complaint claiming that the post of "controversial and inflammatory". Subsequently, Khan wrote on social media, "Law is enforced strictly... And you've all seen how he was arrested in 24 hours. I know exactly what goes on in Facebook. Things like this have happened in the past as well."

Union Minister of Communications and Information Technology Ravi Shankar Prasad had tweeted in support of the boy saying, "I'm deeply distressed over arrest of young boy on sharing a Facebook comment."

"Section 66A suffered from manifest arbitrariness, was vague, overbroad and caused a chilling effect on free speech. Its language was broad enough to cover all manner of speech that would be otherwise completely legitimate, such as political dissent," said Singh.

Actions taken or initiated

On January 9, 2013, the Centre issued an advisory prohibiting any arrest pursuant to Section 66A without prior approval of the Deputy Commissioner or Inspector General of Police. In May 2013, the Supreme Court (in relation to Shreya Singhal's PIL) also ordered that such approval was necessary.

In the same year, a Bill and a resolution poking holes in the law were introduced and later withdrawn. MP Jay Panda moved a Private Member Bill in Lok Sabha in 2013 to amend Section 66(A). The Statement of Objects and Reasons of the Bill stated that most of the offences that Section 66(A) dealt with were already covered by the IPC. This had resulted in dual penalties for the same offence. The Bill was eventually withdrawn.

According to PRS Legislative Research, a Private Members resolution was also moved in Parliament in 2013. The resolution proposed to bring Section 66(A) in line with the Fundamental Rights of the Constitution, restrict the application of the provision to communication between two persons, precisely define the offence covered and reduce the penalty and make the offence a non-cognizable one. But, this was also later withdrawn.

In July 2014, MP Rajeev Chandrashekhar in the Rajya Sabha asked the government if it considered amending Section 66A due to concerns of misuse. Prasad answered that the provisions were considered to be in line with the fundamental constitutional provisions.

He then said detailed discussions were held by the Cyber Regulation Advisory Committee with stakeholders including industry associations, intermediaries, civil society actors and users on the effect of Section 66A.

"It was unanimously agreed that the law as such is quite appropriate but care need to be taken to prevent the possibilities of its misuse and all concerned would work together to minimize the unintended consequences and evolve the processes and guidelines to prevent misinterpretation of the provisions of the Act," said Prasad in response.

The 2015 Judgement

In 2012, Advocate Shreya Singhal filed a PIL in the Supreme Court challenging this provision of the IT Act on grounds of unconstitutionality. The petitioners contended that the law infringes upon the fundamental right to free speech and expression and is not saved by any of the eight subjects covered in Article 19(2) of the Constitution.

"My challenge to Section 66A was based on the fact that it was violative of our fundamental rights to free speech, equality under Articles 19(1)(a), 14 and 21 of the Constitution of India. My challenge was to the ambiguity and subjectiveness of the words used to describe a crime i.e. "annoying" "of menacing character"," Singhal told FactChecker.

In March 2015, an SC bench comprising Justices J Chelameswar and RF Nariman struck down the Section. The court held that Section 66A is capable of limiting all forms of internet communications as it makes no distinction "between mere discussion or advocacy of a particular point of view, which may be annoying or inconvenient or grossly offensive to some and incitement by which such words lead to an imminent causal connection with public disorder, security of State etc."

Now, in the footnote of Page 24 of the Act mentions that it was struck down. But, "the police are not going to look at the footnote," said Justice Nariman on July 5, 2021 while hearing the PUCL plea.

Experts believe Chapter XXII of the Indian Penal Code, which deals with offences related to prohibited speech can handle cases of cybercrime while staying within the limit of the Constitution. "Chapter XXII of the IPC is restricted only to speech that can be reasonably restricted under Article 19(2) of the Constitution of India, whereas Section 66A covered all manner of lawful and unlawful speech," said Singh.

The SC has posted the PUCL matter for hearing after two weeks.