A great service to the cause of free speech

A progressive judgment? By striking down Section 66A, the Supreme Court has made it more difficult for law enforcement agencies to deal with cyber crimes
A progressive judgment? By striking down Section 66A, the Supreme Court has made it more difficult for law enforcement agencies to deal with cyber crimes

Cyber law as a discipline is constantly evolving. The recent landmark judgment of the Supreme Court on cyber law and its various nuances represent a step forward in the evolving jurisprudence.

In the judgment, the Supreme Court has declared Section 66A of the Information Technology Act, 2000 as unconstitutional.

I have been writing about the immense problems in Section 66A of the Information Technology Act, 2000 (IT Act). It symbolised the tyranny of ambiguous, vague terms over the purity of legitimate free speech. It represented a tool for suppressing bona fide free speech, which was extensively misused.

The Section 66A was your foe than your friend. In scrapping Section 66A of the Information Technology Act, 2000, the 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 the Supreme Court in rendering the present judgment.

This judgment will help restore the confidence of the people in the fact 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.

The judgment is based on sound legal principles, which have been upheld by the Supreme Court from time to time.

Some implications

However, it is also clear that the said judgment could have consequences for various stakeholders.

From the victims’ perspective, the 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 such as 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 to affected persons, 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 the 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.

Now with Section 66A being declared as unconstitutional, cyber bullying as a phenomenon is likely to continue growing at a rapid pace in India, building on its previous successes.

Also, there would no longer be any sufficient deterrent against widespread rumour mongering on the Internet and the law enforcement agencies might find it difficult to regulate it.

Important takeaways

The judgment has various learnings for all stakeholders. Ten learnings emerging from the landmark judgment are as follows:

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

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

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

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

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

♦ Difficulties will mount for law enforcement agencies while dealing with cyber crime cases such as cyber stalking, cyber nuisance, cyber harassment, cyber defamation and spam, with Section 66A gone off the law book.

♦ For people engaging in targeted, below the belt attacks in the digital ecosystem, whatever limited deterrence was there in the toothless Indian cyber law, stands evaporated.

♦ The judgment is a wake-up call for the government not to make any laws which go against the basic structure of the principles enshrined in the Constitution of India.

♦ The Principles of Intermediary Liability under the Indian cyber law (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.

♦ Now the focus is back on the government to amend the Indian cyber law to make it more topical and relevant to the needs of the times, given the advancements in technology.

The landmark Supreme Court judgment will provide the necessary impetus to the government to have a fresh look at Indian cyber law, which was passed 15 years back and only amended once in 2008. The ground realities of 2015 are completely different from 2008, when the amendments to the IT Act, 2000 were passed.

No cyber law is perfect. Every technology law must go through constant revisions to meet the constantly changing aspirations of technology users and the society. Indian cyber law is no exception to this rule. All efforts must be made to strengthen Indian cyber law so that it can provide a solid foundation for the further growth of mobile commerce and e-commerce in India.

These are interesting times in which we live. The future advances in Indian cyber law would be keenly watched with avid interest by one and all.

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