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Section 66A of the IT Act: Unconstitutional provision that continues to be invoked

By Nevin Clinton

The Information Technology Act, 2000 (hereinafter referred to as IT Act) is among the most important pieces of legislation in India that is only growing in importance by the day. In today’s digital world, especially during the times of the COVID-19 pandemic, attachment to cyberspace or the internet has become part and parcel of life. Alongside the obvious positives that come with advancements in technology relating to cyberspace, there are several inherent dangers as well.

Freedom of online speech and Section 66A

In the context of social media, a key question that has been concerning lawmakers and courts for quite some time now is that of freedom of speech. When the IT Act was framed, there was a provision added to restrict sending ‘offensive messages’ online. This was given in Section 66A which stated that the following acts would be punished with imprisonment up to three years and fine:

  • Sending grossly offensive information or information having a menacing character
  • Sending false information with an intention to cause ill will, inconvenience, annoyance, danger etc. 
  • Sending emails that mislead, annoy or cause inconvenience to the receiver

The landmark Shreya Singhal case

Once Section 66A came into being, several cases were filed under it for violating its provisions. While the provisions did seem fair enough, cases of exploiting them in order to punish online speech that was either innocuous or satiric started to rise. This led to several lawyers and organizations questioning the validity of how the provisions of the section were being construed and implemented. 

A series of writ petitions were then filed by lawyer Shreya Singhal along with NGOs like PUCL, and companies like In a landmark judgment that changed the landscape of online speech, a two-judge bench deemed Section 66A to be unconstitutional as it violated the right to freedom of speech and struck it down. Despite arguments from the other side that the section would come under ‘reasonable restrictions’ to the right, the court ruled that the same would not apply. The section was deemed to be too vague and not narrow enough to constitute a reasonable restriction. The judgment received largely positive reception from journalists, lawyers and people alike. 

The situation post the Shreya Singhal judgment

Despite the fact that the Shreya Singhal judgment clearly deemed Section 66A to be unconstitutional, it continued to be invoked with more than 700 cases pending at present. The lack of communication to police officers and the lack of publicity about the exact section and its striking down led to the same. Apart from police officers, even lower courts and trial court judges were unaware of the ramifications of the Shreya Singhal judgment. This was brought to the attention of the Supreme Court in 2019 and the Court asked DGPs in all states to publicise and expressly convey to the entire police force that Section 66A was struck down. Despite this direction, there were still cases of the section being used. 

One of the key reasons for this situation arising was the fact that the section was not removed from the bare text of the IT Act. It was only mentioned in the footnotes that the Shreya Singhal judgment deemed it unconstitutional. This could have been prevented by either completely taking out the section or mentioning the unconstitutionality in the bare text itself (through brackets) instead of just the footnotes. 

The situation at present

Much like the SC direction in 2019, yet another direction has arrived now in July, 2021 wherein the Court has advised all states to not register cases under Section 66A. The issue was once again brought to the SC’s attention by PUCL which had also been one of the parties in the Shreya Singhal case and this time the Court has made it amply clear that there should strictly be no more invocation of Section 66A. Therefore, as of now, the section is not in force and there can be no cases registered under it. But it still remains to be seen if this direction will be strictly complied with and if a situation similar to the previous direction in 2019 doesn’t arise.