Look closer at Sec 66A judgement- There’s a fine-print too

Pavan Duggal

NEW DELHI, INDIA: Section 66A symbolized the tyranny of ambiguous vague terms over the purity of legitimate free speech. It represented a tool for suppressing bonafide free speech, which was extensively misused. Sec 66A was your foe than your friend. In scrapping sec 66A, Supreme Court has done a great service to the cause of free speech of vibrant digital Indians. Digital free speech in India owes a great deal to the yeoman service done by SC in rendering the present judgment.

This judgment will help restore the confidence of the people that their valuable freedom of speech and expression on the Internet is governed by the Constitution and not dictated by arbitrary vague Legal provisions.

The fear psychosis perpetuated by Section 66A has vanished. This judgment ushers in a new era of free, fearless exchange of ideas in the digital ecosystem marketplace of ideas.

The Supreme Court has scrapped Section 66A in its entirety on the ground of being violative of Article 19 (1) of the Constitution of India and not saved by Section 19 (2) of the Constitution.

From the victims’ perspective, the said judgment takes away from them a legal remedy. Cyber stalking, cyber nuisance, cyber harassment and cyber defamation are extremely prevalent in our country. The advent of the Mobile web and Over The Top Applications like Whatsapp have further provided a fertile ground for cybercriminals to perpetuate their illegal and criminal designs. In such a scenario, the remedy under Section 66A, which was providing some relief, is now gone.

Cybercriminals and vested elements would now also be happy that such a notorious section like Section 66A shall no longer be on their head as a Damocles sword.

The provision pertaining to regulating spam as part of Section 66A (c) also stands scrapped. This has to be seen in the light of the fact that India is one of the top spam-producing nations in the world and that India does not have any spam law.

Ten Learnings Emerging from the Supreme Court Landmark Judgement are as follows:

1. Freedom of speech and expression on the Internet is sacrosanct and only subject to the Constitutional reasonable restrictions given under Article 19(2) of the Constitution of India.

2. No arbitrary, vague governmental legislative provisions can create shackles for the enjoyment of freedom of speech and expression.

3. Any element of vagueness in legal provisions, which render them amenable for misuse, would not be upheld under the law.

4. The people’s right to know is important and cannot be subjugated to statutory handles for gagging free speech with chilling effect.

5. Difficulties will mount for law enforcement agencies, while dealing with cases of Cyber stalking, cyber nuisance, cyber harassment and cyber defamation, spam, with Section 66A gone off the law book.

6. Judgment comes in as a breath of fresh air for all being prosecuted under Section 66A of the IT Act.

7. Whatever limited deterrence was there in a toothless law for people engaging in targeted ‘below the belt’ attacks in the digital ecosystem, stands evaporated.

8. Judgment a wakeup call for the government not to make any laws, which go against the basic structure of the principles enshrined in the Constitution of India.

9. Principles of Intermediary Liability under the IT Act, 2000 have been upheld and hence all intermediaries in India need to wake up to their statutory liability and ensure statutory compliances.

10. Focus now back on the government to amend the IT Act to make it more topical and relevant with the needs of the time, given the advancements in technology.

Pavan Duggal is Advocate, Supreme Court of India, President Cyberlaws.Net and cyber law expert.

(The views expressed here are solely of the author and CyberMedia does not necessarily subscribe to the same)