With the era of advancing technology, the electronic medium has omni-presence. Due to easy access and the ever-growing number of users, crimes relating to the same have also witnessed an exponential increase. There are legislations in place which regulate cybercrimes, but due to covered medium, more efficient regulations are required.
Previously, the Section 66A of the Information Technology Act, 2000 (hereinafter referred to as the “IT Act”) penalized the act of sending any offensive information through an electronic medium, which was struck down by the Supreme Court in the case of Shreya Singhal v. Union of India, AIR 2015 SC 1523, in order to protect the fundamental right to freedom and speech.
Section 499 of the Indian Penal Code, 1860 (hereinafter referred to as the “IPC”) defines that publishing of any defamatory sentence would amount to defamation, whereas, if the such sentence is published electronically, it would amount to cyber defamation. Both kinds of defamation are classified into two broad types- i. libel, which is when the statement is published in a written form, ii. slander, when the statement is made in a verbal form or orally.
This article specifically discusses the reasons for striking down the provision of Section 66A of the IT Act and the further recourse available in the case of defamatory sentences published on the electronic medium.
Shreya Singhal (herein referred as the “Petitioner”) and along with others challenged the constitutional validity of Section 66A, 69 and 79 of the IT Act through a writ petition under Article 32 of the Constitution of India, 1949 (hereinafter referred to as the “Indian Constitution”).
The Petitioner was of the view that Section 66A of the IT Act violates the fundamental right of freedom of speech and expression of the citizens of the country as enlisted under Article 19 of the Indian Constitution, and is vague and arbitrary and against the principles of penal offences.
ISSUES BEFORE THE SUPREME COURT
Whether Section 66A of the IT Act is arbitrary, vague and unconstitutional in nature?
DECISION AND FINDINGS
The Supreme Court observed that the definition of Section 66A of the IT Act is inclusive and the definition does not discuss the content that is published but only discusses the medium through which it is disseminated. Section 66A has a wide scope and does not distinguish about what may be annoying, inconvenient, or grossly offensive, or incitement that may be in violation of public order, security of the State etc. The Supreme Court observed that such a wide scope of Section 66A of the IT Act curbs the freedom of speech and expression on the Internet.
The Supreme Court further observed that the Section 66A of the IT Act does not pass the test of intelligible differentia and hence, it cannot be considered to be covered under the purview of reasonable restrictions due to the wide and inclusive nature of the provision.
The Supreme Court relied on the case of Dr. Ram Manohar Lohia v. State of Bihar & Ors. [ (1966) 1SCR 709] and held that the test of the relation between the publication under Section 66A of the IT Act and the tranquility to the public order cannot be established.
The Supreme Court discussed that there was no clear and present danger eminent or possess the tendency to create public disorder under Section 66A of the IT Act and hence, the essential ingredient is absent.
The Supreme Court noted that the concept of defamation is discussed under Section 499 of IPC and held that for defamation injury to reputation is the basic ingredient, However, on the contrary, Section 66A of the IT Act does not discuss about injury to reputation but covers any annoyance and hence, it can be said that it does not aim at defamatory sentences.
The Supreme Court also observed that for decency and morality also, Section 66A of the IT Act should have described certain offense which would have led to have been in contravention of public decency and morality. The Supreme Court noted that the language of Section 66A of the IT Act is vague and it does not describe any particular offenses to be included and as there is no definition of the offense under Section 66A of the IT Act, it cannot be penalized.
The Supreme Court affirmed that the provision of Section 66A of the IT Act is open-ended and undefined, which is contradicting to Section 66 of the IT Act, wherein every expression is defined.
The Supreme Court compared Section 66A of the IT Act with Section 268 of IPC which defines public nuisance and observed that all the ingredients of Section 268 of IPC are covered under Section 66A of the IT Act.
The Supreme Court noted that the expression “annoyance” has been specifically discussed in Section 294 of IPC which is caused by speaking and Section 510 of IPC defines annoyance caused in a public place due to intoxication, in contrast to Section 66A of the IT Act, where the expressions are used vaguely. Moreover, the expression “criminal intimidation” is neither defined in the IT Act nor refers to the definition of IPC.
The Supreme Court held that every expression has its nebulous meaning, an expression which is offensive in a manner cannot be offensive in another manner, and this demarcation is absent under Section 66A of the IT Act and hence it is unconstitutionally vague. The Supreme Court also asserted that due to the vagueness of the provision, a prospective offender or the Authority has no decided standard for its enforcement.
The Supreme Court relied on the case of Chintaman Rao v. The State of Madhya Pradesh [ (1950) SCR 759] and held that Section 66A arbitrarily, excessively, and disproportionately invades the right of speech and unbalances the right and reasonable restrictions.
The Supreme Court also observed that Section 66A of the IT Act suffers from procedural unreasonableness, because being a provision of penal nature, it does not provide procedural safeguards.
CURRENT RECOURSE AVAILABLE
After the striking down of Section 66A of the IT Act, cyber defamation is still considered a crime and is penalized under Section 500 of IPC. The complaint can be lodged with the Cyber Cell and would be dealt in accordance with the IPC.
In the case of SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, the Delhi High Court had for the first time taken cognizance of cyber defamation and had punished the offender for the defamation. The Orissa High Court in the case of Kalandi Charan Lenka v. State of Odisha [ BLAPL No. 7596 of 2016 decided on16.01.2017] held that publication of fake obscene images on social media will be covered under cyber defamation and the accused was punished under Section 500 of IPC. There are plethora of cases wherein the cognizance of cyber defamation is taken by the Courts and is prosecuted as per the provisions of IPC.
The Supreme Court has struck down the provision penalizing the offensive content published on the electronic medium, which causes a dilemma as to where the complaint has to be lodged. The Supreme Court has discussed the procedural flaws that are faced and the vagueness in the provision, which directs that whenever a particular provision is struck down like Section 66A of the IT Act, the future recourse would be available under Section 499 and Section 500 of IPC and other provisions that govern the offense in general.
One of the primary reasons that the Supreme Court has struck down the provision of the IT Act is due to the arbitrary and vague interpretation of the provision, which is as opposed to the principle of the penal statue, as the prospective offender is unaware whether a certain act will be an offense or not. Moreover, it does not define a particular offense and hence, if any such offense is committed it will be governed by a general penal statue in place.
Thus, in view of the present situation, it can be concluded that any cyber defamation will be dealt under the provisions of Section 499 and 500 of IPC in the absence of Section 66A of the IT Act.
-Team AMLEGALS, assisted by Ms. Prakhya Shah (Intern)
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