"The Demise of Section 66A: A Victory for Free Expression"

"The Demise of Section 66A: A Victory for Free Expression"

Author :- KAPIL A. FULE , a Student of RTMNU'S Dr Babasaheb Ambedkar College of Law Nagpur.

Introduction:- 

• Where Article 19(1)(a) of the Indian Constitution guarantees the right to freedom of speech and expression to all citizens of India. This means that every citizen of India has the fundamental right to express their thoughts, opinions, and ideas freely, subject to certain reasonable restrictions outlined in Art 19(2) to (6) which cover matters like defamation, contempt of court, incitement to an offence, etc. Whereas if a social media message was found to be "disturbing" or "extremely offensive", then Section 66A had a provision of three years imprisonment.

• S.66A of the IT Act, 2000 was a provision that criminalized certain types of online speech, but it was found to be unconstitutional by the Supreme Court of India in the case of Shreya Singhal v. Union of India in 2015.[1] The court ruled that it violated the fundamental right to freedom of speech and expression guaranteed under Art. 19(1)(a) of the Indian Constitution.

"Shreya Singhal v. Union of India: Landmark Judgement on Section 66A of the Information Technology Act." :-

In this landmark case, the Hon'ble Apex Court had discussed three concepts which are related to Freedom of Speech and Express:

• discussion:- Citizens have full right to discuss and express their views on any issue under the rights granted under Art. 19(1)(a) of the Constitution.

• advocacy:- If a person speaks on any issue, he will either speak in favor or against.If a person speaks in opposition on an issue and another person does not like his opinion, it does not mean that it is a crime because every person has his own view, whether that person's view is liked by the other person or not.  That person has the right to exercise his right under Art. 19(1)(a).

• incitement: The citizen has the right to freedom of speech and expression, if any kind of incitement which is not for the benefit of society or creates hatred, then it will be considered a crime, otherwise no crime will be considered.  It doesn't matter whether the other person likes that person's view or not. As in this case, the comment made by Shreya Singhal on social media Facebook was her personal view.  He was not creating any kind of incitement.[2]

The court held that the language of S.66A was overly broad and vague, which led to its misuse and chilling effect on free speech. It allowed for the arrest of individuals for expressing opinions online, even if they were not explicitly defamatory or harmful. 

"Despite the 2015 Supreme Court ruling against Section 66A of the IT Act, its misuse continued." :-

The Honorable Apex Court had declared S.66A of the IT Act unconstitutional in its decision in 2015, but the police officers at the local level were not aware of this.  Due to which, even after the decision of the Apex Court in 2015, FIRs continued to be registered against innocent persons U/S 66A, and the surprising thing was that even the Judicial Magistrate, in the case registered under this section, did not release the person arrested in the case.  Was sent to judicial custody.[3] As stated in a study conducted by the Internet Freedom Foundation (IFF);

• Such as 26/11/2018: Abhinav Sekhri and Apar Gupta in their paper, Section 66A and Other Legal Zombies highlight the continued use of S66A.

• 15/02/2019: SC further directed that the Shreya Singhal judgment be sent to all courts in the country, to senior administrative officers and director general of police.

• 2020: Institution of fresh complaints and prosecutions under S 66A continue across the country.[4]

As a result, it became a useful tool of victimization.

• 12 October, 2022: "In 2015, the Indian Supreme Court declared Sec. 66A of the IT Act unconstitutional in the Shreya Singhal Case, emphasizing no further prosecutions. The Court issued directives to State authorities to expunge references to Sec. 66A from pending cases and ensure clear notification of its invalidation in published IT Act materials.".[5]

If an FIR is lodged U/S 66A of IT act, how can such cases be dealt with?

• Even after Section 66A was struck down by the SC. If a police officer registered an FIR against an innocent person under S66A only and arrests him and produces him before the Judicial Magistrate and the Judicial Magistrate sends the arrested accused to judicial custody, then in such a case the accused (Who is detained illegally) "Habeas Corpus Writ" petition can be filed in the Hon'ble Supreme Court under Article 32 of the Indian Constitution or under Article 226 in the Hon'ble High Court.

• Contempt of court proceedings may also be initiated against such Judicial Magistrate for the said act.

Conclusion:-

the French writer and philosopher Voltaire said, “I may not agree with what you have to say, but I will defend to the death your right to say it.”[6]

 

References:-

[1] https://indiankanoon.org/doc/110813550/

[2]https://youtu.be/u6KeKeZ0Pf0?si=Yg8Q1nNhd5cVWiZS 

[3]https://youtu.be/5iLxaH3bg3A?si=AE8qRkAOOdmkWUOx 

[4]https://images.app.goo.gl/vkRMBdatwia6ynwLA 

[5]https://youtu.be/vtQtjajF0UM?si=uX-jBBhWo1eT-cLo

[6]https://www.newyorker.com/cartoons/bob-mankoff/lightly-freedom-speech#:~:text=Back%20before%20the%20Constitution%20enshrined,your%20right%20to%20say%20it.%E2%80%9D