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Wednesday, 1 April 2015

Supreme Court Ruling on 66A of IT Act – Freedom of Expression Gained; Protection to Women Lost

In 2011, six young ladies in Coimbatore filed a complaint with the Cyber Cell of the Police Department, alleging that they were receiving menacing calls repeatedly from an unidentified number. Investigations traced the call to a single person making similar calls to various other young ladies repeatedly. Although hundreds of ladies were reportedly victims, only a few came forward to complain to the police. The police arrested the person under Sec 66A of IT Act and got him convicted in 2014 to one year of imprisonment. He is in prison now. 

There are hundreds of such complaints under 66A, pending all over India, in many police stations and courts for punishment of cyber stalkers. In all the cases, the victims are young girls. After the recent Supreme Court judgement scrapping Sec 66A from the IT Act, these cyber stalkers will walk free from jail or the pending case, unpunished for their crime. The entire media and even the young ladies celebrated this judgement of “newfound freedom for the society”, not knowing that it protects the cyber stalkers from arrest for harassing their victims, especially women. Unfortunately, without realising the implications, the electronic media, politicians and youth, including women, have been hailing this as landmark verdict and as a great victory in the freedom of expression.

Freedom of Expression in the Indian Constitution

Article 19 (1) (a) of the Indian Constitution provides freedom of speech and expression to all citizens. At the same time, Article 19 (2) empowers the State to make any law to impose reasonable restrictions on the freedom of speech and expression, in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. This article provides sufficient powers to the Government to enact any law to reasonably restrict the freedom. 

Referring to this Article in one of the cases, Justice Patanjali of Supreme Court observed on 19th May 1950 that “man as a rational being desires to do many things, but in a civil society, his desires will have to be controlled with the exercise of similar desires by other individuals”

Background of Section 66A

Dr Manmohan Singh, the then Prime Minister agreed to review the Information Technology Act 2000, after the arrest of the CEO of baazee.com in 2005. In 2008, some clauses of IT Act 2000 were amended to improve its clarity. Section 66A was taken verbatim from Sec 127 of Malicious Communication Act 2003 of United Kingdom. The original IT Act 2000 and the amendments in 2008 were passed without any discussion in the Parliament. “I consider that it is not correct to say that Section 66A was introduced to protect anybody in Congress/UPA as reported in the media.  However once the law was available, a senior minister perhaps thought of using it to take control of the social media at different points of time, leading to the last elections. Let’s give neither credit nor discredit the politicians for Section 66A” says Mr Naavi, a Bangalore based Cyber law expert and the author of the first Indian book on Cyber Law.


Impact of Removing Sec 66A

Some politicians did abuse and misuse Sec 66A for their benefit. The media hyped the issue, attributing the abuse to the prevalence of this section. A large population of the country, who rely on the electronic media for current updates, started believing that this section was 'draconian'. In reality, there are many other clauses in IT Act 2008 and IPC that are draconian and can be misused by the police and the politicians, and the people.

“Why blame only the police and the politicians for misuse of 66A? When the police wrongly arrested a person, they were anyway produced before a Magistrate. If the Magistrate had felt that the police had abused Sec 66A, he could have reprimanded the police officer and taken suitable action. Instead, in all the cases, the courts remanded the accused persons or granted bail. That shows the lack of awareness about the clause 66A even in the judicial system. I know that thousands of innocent girls were protected because of 66A. Unfortunately, none of the media houses had taken a serious note of this, as the clause protected only ordinary, poor citizens and not VIPs. I know myself, that every year nearly 2000 complaints are received in the cyber cell of the police at Chennai and Coimbatore. Other states may also receive a large number of complaints. Nearly 50 to 60% of them relate to 'cyber stalking' of women. Instead of removing 66A from the IT Act, the Supreme Court should have advised the Government to frame rules on the lines of UK, and train the police and judicial system on the interpretation of the clause. This judgment has now closed the only available route for women to complain against cyber stalkers”, says S.N. Ravichandran, a member of the Cyber Society of India at Coimbatore.

Rules Governing Prosecution in UK

When Sec 127 was included in the Malicious Communication Act 2003 in UK, similar arrests occurred in UK. When the matter was taken to the Apex Court, they upheld the clause. In June 2013, the UK Government issued some guidelines on prosecution cases involving messages sent through the social media, and clarified the implication of the Act. The notification can be accessed at


“Some of the words in the various Acts are defined through usage over a period of time and cannot be defined in the Act itself. They all depend on the circumstances under which an action is done and the intention of the person. The main objection in the 66A was the undefined words like 'grossly offensive', 'menacing', etc. In the judgment of UK's Apex Court, the judges have treated them as ordinary words in English language and wanted the meaning to be verified from the dictionary. Similarly, this section 66A was not intended to curtail the freedom of speech or expression. It was intended for the communication between two persons or group of persons through digital devices, and not those meant for the public domain. The Supreme Court verdict was based on the presumption that Section 66A was applicable to the publishing of content in the public domain. This presumption was wrong. Since the premise itself was wrong, the verdict deserves to be overturned. The Government and the women activists should move the Supreme Court for review immediately', adds Naavi.

Cyber Stalkers vs. Women Victims

The entire Indian media seem to be ignorantly misleading the public that women can get protection from cyber stalkers through the Indian Penal Code (IPC) and also though Sec 67 of the IT Act. “If a cyber stalker transmits obscene or sexually explicit material to a woman, then he can be booked under Sec 67 and also under IPC. But, if the same person transmits an annoying message like 'I love you' persistently or calls up a woman and disconnects the phone several times, the woman could have filed a complaint and got protection under 66A. After the recent judgment, she might not get sufficient protection under IT Act and IPC. The only solution available to her might be to change her SIM card and her mobile number. Post the Supreme Court verdict to scrap Sec 66A from the IT Act 2000, thousands of complaints from women victims, pending with the police or the courts in such cyber stalking cases may not get remedy”, says Ravichandran.

This sudden repeal of Sec 66A has increased the threat to innocent women. All the media houses, political parties and women organisations should start a debate on this issue after understanding the real implication of the repeal, to compel the Government to file a review petition before the full bench.

There is an ancient Indian wise saying.  “Let us not burn down the house in order to save it from the bugs”. Instead of rejoicing over the ‘freedom of expression’ gained through this verdict, one should ponder over what would happen if their own sisters, mothers became victims of ‘cyber stalkers’.  Will they leave it as a freedom of expression given to the ‘cyber stalker’?  

By K Srinivasan, Editor in Chief, PreSense

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