Author: Sudipto Halder, 4th Year student at KIIT School of Law.
We all are well aware of our fundamental right of freedom of speech and expression under the Indian Constitution where freedom of speech and expression is an absolute right. Various discussions have shown that the issue of restrictions on freedom of speech and opinion is extremely controversial. Constitutional experts from different constitutional courts set a period of time to define a limit. Beyond this limit, this freedom is prohibited by law and must be strictly questioned. The expression of the consequences and the procedures for resolving these issues are in the IPC or CrPC. Nowadays in this era of social media, it is very common for people to spread hate messages on some trending topics or something that can trigger communal hatred, increase in violence and endangering minorities around the world. To counteract such issues, the government has implemented many laws to restrict people from doing so, but at the same time it also contradicts the right to speech and expression of every individual. These laws were made to eliminate hatred from any platform but at the same time it violates an individual’s fundamental rights i.e. right to speech and expression. The Supreme Court in one of the most historic decisions to protect the right to freedom of speech in the case of Shreya Singhal and Ors. v. The Union of India quashed section 66A of the IT Act. The decision was praised by ordinary people and legal celebrities, who believed that the Internet law regulations were due to restrictions that violated the rights of Indian citizens to freedom of speech, were open, ambiguous, and unconstitutional. But recently in July, 2021 the Supreme Court while reviewing a petition was surprised to find out that cases were still being registered under section 66A of the IT Act in today’s time. In this article we will discuss what was this section 66A which has now been decriminalised and why this section is invoked now by authorities and misused against innocent people.
What is this Section 66A of IT Act?
The Section 66A of the Information Technology Act authorizes the police to make arrests that the police consider to be “offensive” or “threatening” or intended to cause anger, anger, etc. in subjective judgment. It provides for penalties for sending messages via computers or other communication devices (such as mobile phones or tablets), and convictions can result in up to three years of imprisonment.
Decriminalising Section 66A
On March 24, 2015, the Supreme Court of India quashed section 66A of the Information Technology Act of 2000 in the Shreya Singhal v Union of India case, and held that it was unconstitutional. According to the Supreme Court, the freedom of speech and expression was being violated under this provision of the IT Act. The wide powers of the section were frequently used to stifle political dissent. The Supreme Court found that this provision was vague and too broad, and therefore violated free speech protected by the Constitution. Based on international and national standards, the court found that this clause arbitrarily and disproportionately affected the right to freedom of speech. In particular, the court found that the clause is indivisible and that no part of the clause can be saved by reading, and therefore held that the clause generally violated Article 19, paragraph 1 (a) and Article 21 of the the Constitution of India. By repealing section 66A in the Shreya Singhal case, the Supreme Court has not only injected new vitality into India’s freedom of expression, but also played its role as the Constitutional Court for Indians. The various provisions of the IPC and Sections 66B and 67C of the TI Act are sufficient to combat all of these crimes, and it is wrong to believe that Section 66A has led to new forms of crime. For many reasons, the Shreya Singhal ruling is of great significance in the history of the Supreme Court, in rare cases the Supreme Court took extreme measures and declared the parliamentary review law completely illegal. Freedom of speech, and the state can restrict the limited space of this freedom only under special circumstances. Judge Nariman while delivering the judgement emphasized that freedom of thought and speech is not just an ideal. The Supreme Court agreed with the complainant that none of the reasons contained in Article 19, paragraph 2 can be used as a legal defense for the validity of Section 66A. Information Technology Act. “Any law designed to restrict freedom of speech can only be passed,” Judge Nariman wrote, “if it is directly related to one of the eight issues listed in section 19 (2).” Possibility of incitement to hatred section Section 66A failed these tests because the position in which the individual was imprisoned did not incite public hatred or disrupt public order.
Analysis of the Decriminalised Law
Not only the case of Shreya Singhal but many other judgments have very generously explained the basic right of freedom of speech, while imposing appropriate restrictions on this basic right. Abuse may lead to incitement to hatred. This is an internationally recognized human right, and a number of principles have been formulated to maintain its validity within the framework of international human rights law. International human rights law recognizes the right to freedom of speech and the state’s obligation to prohibit expression of hatred. For example, in 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights. Freedom of speech and opinion is a fundamental right in the broader constitution, it is protected by Article 19 (1) (a) of the Constitution of India, which grants all citizens the right to freedom of speech and expression. However, Article 19 (2) of the Indian Constitution provides for appropriate restrictions, in which the word “appropriate” must strike a balance between the use and abuse of that freedom. In most cases, section 66A of the Information Technology Act of 2000 has been misunderstood and abused. In every democratic country, freedom of speech plays an important role in the legal system. Our country should not be another example like North Korea, where citizens of their country are afraid to speak and share their views and opinions. I totally agree that defamation and sedition are two examples of freedom of speech immunity, which makes perfect sense but in the recent cases which are reported regarding section 66A is baseless for a law which has already been struck down by the Supreme Court. If citizens of a democratic country do not even have the right to question something related to their welfare, what democratic country do we live in? The Supreme Court was astonished to see that the police were still registering cases under Section 66A in 2021 which has already been decriminalized in 2015.
Abuse of Section 66A
In July, 2021 after the Supreme Court heard PUCL’s motion against persons suspected of involved in registering FIRs related to this law despite the fact that this law has been decriminalised, the three judges of the High Court, led by Justice Rohinton Fali Nariman, expressed serious dissatisfaction and stated that a grave injustice is taking place by booking innocent people unlawfully under this section. To the response of this, the lower court said that it will review such matters and issue notice to the concerned authorities. A few days after the Supreme Court filed a complaint about the continued application of Section 66A of the Information Technology Act of 2000, the central government urged states not to file lawsuits under the repealed statutes and withdraw cases that may have been filed. The Union Ministry of the Home Affairs (MHA) has requested all federal states and territories to instruct all police stations within their jurisdiction not to file a lawsuit under section 66A of the repealed Information Technology Act of 2000. It also requested each state and union territories must place law enforcement agencies to ensure that such cases are withdrawn.
It is very difficult to prove in today’s time what amounts to sedition and what does not. After the Supreme Court’s decision on section 66A of IT Act, the problem of hate speech on social media platforms has also escalated, as the spread of misinformation between online platforms is now commonplace, social media applications such as WhatsApp, Facebook and Twitter have become the most common tools for spreading hate speech. They have also become another big problem for social media sites. Troll posts inflammatory or abusive comments on social media designed to defame the government may come under the ambit of section124 of IPC but it still leaves a grey area in the matter of talking about a person whether it amounts to defamation or just someone’s personal views?
 Abhay Nevagi, Section 66a: Its repeal and its after-effects, Legally India (Apr. 24, 2015), https://www.legallyindia.com/views/entry/section-66a-its-repeal-and-its-after-effects.
 Shreya Singhal v. Union of India, (2013) 12 S.C.C. 73
 Sanjana Srikumar, Revisiting Section 66A: An Afterword to A Concluded Tale, GFE Columbia University (Feb. 27, 2019), https://globalfreedomofexpression.columbia.edu/updates/2019/02/revisiting-section-66a-an-afterword-to-a-concluded-tale/.
 Aditi Dutta, Shreya Singhal v U.O.I. – The case that Assured Independent Online Speech, Aishwariya Sandeep (Jun. 14, 2021), https://aishwaryasandeep.com/2021/07/14/shreya-singhal-v-u-o-i-the-case-that-assured-independent-online-speech/.
 Nishit Aggarwal, Know The Relevancy of Section 124 A of IPC in Democratic India, ABC Live (Mar. 1, 2020), https://abclive.in/section-124a-of-ipc/#.
 Rukhman Singh, Analysing the law on freedom of speech and expression through a recent and important case, http://www.legalservicesindia.com/article/2473/Shreya-Singhal-v-U.O.I.html.
 Business Standards, Registration of FIR under Section 66A of IT Act, terrible and shocking: SC, (Jul. 13, 2021, 1:37 p.m.), https://www.business-standard.com/article/current-affairs/registration-of-fir-under-section-66a-of-it-act-terrible-and-shocking-sc-121070500427_1.html.
 Devesh. K. Pandey, Drop cases filed under Section 66A: Centre, Hindustan Times (Jul. 14, 2021 19:13 p.m.), https://www.thehindu.com/news/national/immediately-withdraw-cases-registered-under-repealed-section-66a-mha-to-states-uts/article35324426.ece.
 Deeptiman Tiwary, Stop filing cases under scrapped section of IT Act: Centre to states, Indian Express (Jul. 15, 2021 5:57 a.m.), https://indianexpress.com/article/india/dont-lodge-cases-under-66a-it-act-mha-7404829/.
 Rachit Garg, Hate Speech in India, Ipleaders (Mar. 30, 2021), https://blog.ipleaders.in/hate-speech-india/