Section 66A of the Information Technology Act
Note: The Information Technology Act, 2000 was amended in 2008. The amended Act which received the assent of the President on February 5, 2009, contains section 66A.
66A. Punishment for sending offensive messages through communication service, etc.
Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation.— For the purpose of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.
Taslima Nasrin vs State of UP [W.P.(Crl) No. 222 of 2013]
| FEBRUARY 8, 2014
This writ petition was filed by Bangladeshi author and activist Taslima Nasrin, under Article 32 of the Indian Constitution for quashing an FIR filed against her under Section 66A of the Information Technology Act, 2000 and Section 295A of the Indian Penal Code, 1860.
Said FIR was filed against the petitioner in the city of Bareilly, Uttar Pradesh, in the wake of her tweets regarding a ‘fatwa’, (a virtual bounty of Rs. 5,00,000/- on her head) that was issued against her. It is premised solely on a press report on said tweets published in the Hindi daily ‘Amar Ujaala’ in November 2013, which purportedly offended the religious sentiments of an Islamic cleric, around whom the tweets were centered. The petitioner argues that the FIR was registered without a preliminary inquiry towards ascertaining whether any cognizable offence had been made out against her. Moreover, the petitioner submits that even if all the averments in the complaint and the FIR are accepted, no offence can be said to be made out against the petitioner. In the complaint, neither are the actual tweets by the petitioner extracted, nor is a copy of the said press report annexed with the FIR. For these reasons, it is submitted that the FIR is a motivated and malicious one, aimed at wreaking vengeance against the petitioner. It is essentially an abuse of legal process. In addition, Section 66A can easily be clubbed with other provisions of the Indian Penal code, including Section 295A, by deliberately giving any statement made on the internet a religious color or flavor and misreading the same.
It is argued that Section 66A violates Articles 14 and 21 of the Constitution of India. The language and phraseology of the Section is so wide and vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse. All terms constituting an offence under Section 66A have not been defined either under the IT Act, the General Clauses Act or under any other legislation. The Section would be indiscriminately clubbed with other provisions of the Indian Penal Code, as has been done in the petitioner’s case.
Further, the freedom of expression is a recognized human right under various international conventions, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Section 66A of the IT Act is wholly inconsistent with these conventions, and constitutes a severe, regressive and wholly undesirable restraint on this hallowed right. While the petitioner, not being an Indian Citizen, does not herself invoke Article 19(1)(a) of the Constitution of India, she requests the Court to take judicial notice in the interest of the citizens of India, that Section 66A of the IT Act is totally inconsistent with Article 19(1)(a) of the Constitution, and virtually takes away this right insofar as the medium of the internet is concerned. It is submitted that the invocation of penal provisions on tenuous grounds has a ‘chilling effect’ on free speech, that is to say it severally disincentivizes citizens from exercising their constitutionally protected right to free speech for fear of frivolous prosecution and police harassment. The Supreme Court has held in a number of cases that the constitutional protection of free speech is calculated to insulate the freedom from such a ‘chilling effect’. It would amount to little consolation to say that the right to free speech of a citizen will be eventually vindicated at the end of an extended legal proceeding. The very fact that the machinery of the criminal law is set in motion against citizens on frivolous grounds amounts to harassment that is inadequately mitigated by the eventual discharge or acquittal.
Thus in light of the above circumstances, the petitioner prays that:
Section 66A of the Information Technology Act, 2000, be declared unconstitutional and void
A writ in the nature of certiorari and/or any other appropriate be issued writ to quash and set aside the FIR registered against her
No news yet from the Supreme Court. 66a is still there. Free speech is still under threat.