|Court||Supreme Court of India|
|Citation||AIR 2015 SC 1523|
|Bench||Justices J. Chelameswar, Rohinton Fali Nariman|
|Legislation||Constitution of India|
Information Technology Act of 2000
Kerala Police Act of 2011
|Sections||Article 14, 21& 32 of Constitution of India |
Section 66A & 69A of IT Act 2000
|Respondent||Union of India|
The Information Technology Act of 2000 is legislation which provides legal recognition for any transactions by electronic medium. They establish the Act with the purpose of penalising cyber-crimes. They amended the Act in 2009 with the purpose to insert a new section i.e., Section 66A, which addressed the cases of cyber-crime. The years prior to this case, a few arrests made under Section 66A of the Information Technology Act, 2000. The arrests included some politicians. The people were arrested because the post which they posted were offensive.
The case was a bunch of writ petitions filed under Article 32 of the Indian Constitution. In 2012, two girls named Shaheen Dhada and Rinu Srinivasan were arrested by the police authorities in Mumbai. The girls arrested because of showing their displeasure at a bandh which declared after the death of Bal Thackeray, chief of Shiv Sena. The allegations made against the girls was that they were posting comments and their displeasure on the bandh, on Facebook. This came up to be viral and resulted in widespread protest.
The petitioners filed the Public Interest Litigation under Article 32 of the Constitution of India. The petition claimed that Section 66A of the Information Technology Act, 2000 is violating the right of freedom and expression of the individuals of the country.
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The petitioners contended that the Section 66A has given rise to a question of such crimes which can be dealt using Section 66A – 67C of the Indian Penal Code.
This section also infringes the Right of freedom of speech and expression which is a fundamental right under Article 19 (1) (a) and this section is nowhere under any of the restrictions under Article 19 (2) of the Constitution of India.
The petitioners pointed out that the words which cause – “annoyance”, “inconvenience”, “danger”, “obstruction”, “insult”, “injury”, “criminal intimation”, “enmity”, “hatred” or “ill will” are all outside the purview of Article 19 (2). The Article 19 (2) does not carry these words.
This Section is challenged to suffer from vice of vagueness because the aforementioned terms are never attempted to be defined. Therefore, due to absence of any definition of such terms, the innocent people are roped in this.
The argument was based on Article 14 and 21 of the Constitution of India. It was brought into the notice of the court that the Section 66A is violating the Article 14 and 21 because there is no intelligible differentia between the people who are using the communication medium to be internet and those who are speaking. This section can only be applied of then.
The learned counsel said that the legislature is in the best position to understand and appreciate the needs of the citizens of the country and this section does not violate the Fundamental Rights. The presumption of validity of a statute is the duty of the court and shall be decided by the Judiciary.
Petitioner & Respondent
Section 69A of the Information Technology Act,2000, is unconstitutional because there is no pre-decisional learning on this. Some argued when any authority shuts down any website, the right of being heard is not given to the other party.
The learned Counsel mentioned the applicability of such a practice worldwide.
1) Whether Sections 66-A, 69-A and 79 of the Information Technology Act,2000are constitutionally valid?
2) Whether Section 66A of Information Technology Act,2000 is violative of fundamental right of freedom of speech and expression?
- Section 66A of the Information Technology Act–
66A Punishment for sending offensive messages through communication service, etc. -Any person who sends, through 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.
Explanation. -For the purpose of this section, 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, image, audio, video and any other electronic record, which may be transmitted with the message.
This section penalises anyone who send any message or information thorough any of the online electronic communication medium (e.g. – Computer). For the purpose of this section, the content should be grossly effective or should have menacing character or which the person knows is false, but for the purpose of causing annoyance, obstruction, insult, injury, criminal intimation, enmity, hatred or ill will, is posted. This section penalises the offender for a term extendable for three years or with fine.
- Section 69 A of the Information Technology Act, 2000 –
69A Power to issue directions for blocking for public access of any information through any computer resource. –
(1) Where the Central Government or any of its officer specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above, it may subject to the provisions of sub-section (2) for reasons to be recorded in writing, by order, direct any agency of the Government or intermediary to block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.
(2) The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.
(3) The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and shall also be liable to fine.
This Section gives the power to the government to issue directions and power to instruct the blocking of any website.
The directions issued by the government under Section 69 A of the Information Technology Act,2009. Here, an officer will appoint, and the officer directs to shut down any website.
Romesh Thapper v. State of Madras 1950 AIR 124
Khushboo v. Kanniamal&Anr (2010) 5 SCC 600
Bennett Coleman & Co. V. Union of India &Ors  2 S.C.R. 1671
The Judgement said that: “Every Expression used is nebulous in meaning. What may be offensive to one may not be offensive to another.” Hence, interpretation is subjective in nature. Therefore, the Supreme Court held that the Section 66A of the Information Technology Act,2000 is violating the Freedom of Speech and Expression which is Article 19 (1) (a) and is not covered under any of the restrictions in Article 19 (2) consisting of reasonable restrictions.
The Supreme Court also held that the Section 69A of the Information Technology Act, 2000 and Information Technology (Procedure and safeguards for Blocking for Access of Information by Public) Rules, 2009 is constitutionally valid and blocking of information for public access is considerable.
The Doctrine of Severability is often known as the Doctrine of Separability. The doctrine allows to separate the inconsistent part of any provision, which is void on the account of repugnancy or inconsistency with the fundamental rights as mentioned in the Constitution of India.
In this case, using the above doctrine, the court of law had held the Section 66A as void entirely because it was violating Article 19 and Article 21 of the Constitution of India.
 https://www.prsindia.org/hi/theprsblog/background-section-66a-it-act-2000 (last visited on 30.08.2020)
 https://indiankanoon.org/doc/170483278/ (last visited 29.08.2020).
 https://indiankanoon.org/doc/10190353/ (last visited 29.08.2020)