Here’s why the abolition of Section 66 A of the IT Act is a good thing

By Newsgram Staff Writer

Virtual world and social media are flooded with applauds for the Supreme Court's decision of quashing of the controversial Section 66 A of the IT Act. Here's what the verdict of court means for citizens of India.

To start with, let's examine the wording of the Section 66 A, which clearly states:

"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,
(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."

This particular Section of the IT Act was used and misused widely in the last few years by the government machinery to curb the constitutional rights of the citizens in the country.

Congress spokesman Manish Tewari said, the Supreme Court has done the "right and appropriate thing" by striking down the provision.

"It had become an instrument of oppression. It had put too much of power in the hands of law enforcement authorities to persecute and hound people who maybe innocuously or intentionally indulged in dissent," he told the media.

Section 66A contained legal recourse against a number of cyber crimes such as stalking, bullying, threatening through SMS and email, phishing and spamming, among others. These crimes, will now be left uncovered after the judgement of the apex court.

Legal experts believe that as far as genuine cases of defamation are concerned, there is a provision under Section 499 and 500 of the Indian Penal Code. Since Section 4 of the IT Act brings electronic information at par with physical documents, the same provision can be applied in the case.

Elaborating the grounds for holding the provision "unconstitutional", the court said terms like "annoying", "inconvenient" and "grossly offensive", used in the provision, are vague as it is difficult for the law enforcement agency and the offender to know the ingredients of the offence. The bench also referred to two judgments of UK courts which reached different conclusions on whether the material in question was offensive or grossly offensive.

"When judicially trained minds can reach on different conclusions" while going through the same content, then how is it possible for law enforcement agency and others to decide as to what is offensive and what is grossly offensive, the bench said, adding, "What may be offensive to a person may not be offensive to the other."

The bench rejected the assurance given by the NDA government during the hearing that certain procedures may be laid down to ensure that the law in question is not abused.

Additional solicitor general Tushar Mehta told the court that "there was a need for a mechanism to put checks and balances on this medium," because the Internet doesn't "operate in an institutional form."

"Considering the reach and impact of medium, leeway needs to be given to legislature to frame rules. On the Internet every individual is a director, producer and broadcaster and a person can send offensive material to millions of people at a same time in nanosecond just with a click of button." Mehta told the Court.

Mehta also said that the vague wording of Section 66A, which said 'grossly inoffensive' content could land someone in prison for three year, was not a good enough reason to get rid of the section.

In the earlier hearings, Mehta had given examples of how the Ministry of Defence and External Affairs, received emails that were designed to hack and steal information from the ministries, in an effort to convince the court that Section 66A was needed to prevent such activities.

"Governments come and go but section 66A will remain forever," the bench said, adding the present government cannot give an undertaking about its successor that they will not abuse the same.

Apart from raising objections to who could determine what constituted 'grossly offensive content', the court has also not been impressed with the government argument that the section was needed to protect government data from hackers, and had pointed out that this eventuality was already dealt with viruses and hacking for which Section 65 of the IT Act was relevant.