CASE COMMENTARY ON INFORMATION TECHNOLOGY LAW
Author : Tavleen Kaur, Student at University of Petroleum and Energy Studies, Dehradun
Best Citation – Tavleen Kaur, CASE COMMENTARY ON INFORMATION TECHNOLOGY LAW, SUPREME COURT JUDGEMENT REPORTER, 1 (1) of 2023, Pg. 26-35, ISBN – 978-81-960677-8-6.
BACKGROUND
Article 19 of the Universal Declaration of Human Rights (UDHR) guarantees the right to free expression and expression. It reaffirms that everyone has the fundamental right to unhindered expression of their thoughts and beliefs. Aside from that, the right to free expression is safeguarded under Article 19 of the International Covenant on Civil and Political Rights (ICCPR). It clearly specifies that ” everybody shall have the liberty to free expression, and that this right shall include the freedom to seek, receive, and impart knowledge and thoughts of all types, regardless of boundaries, in person, in writing or print, in the shape of art, or by any other media of his choice[1].”
The Human Rights Council of the United Nations unanimously declared on July 5, 2012, that everyone’s right to free speech and expression online must be protected. It was the first time the UN recognised that the human rights of citizens in the virtual world should be safeguarded in the same way that they are in the physical world.
Behind the Supreme Court’s repudiation of Section 66A of the IT Act[2] and affirmation of liberal free speech norms lies the persistence of colonial systems of speech restriction, which allow a democratically elected government to fend off challenges to its authority. The Indian Constitution’s guarantee of fundamental rights is violated by Section 66A. According to the Supreme Court’s judgement in the Shreya Singhal case, “it is clear that section 66A erroneously disproportionately, and unjustly invades the right of free speech and disturbs the balance between such right and the reasonable restrictions that may be placed on such right.”
The cases under section 66A that are presently being investigated or prosecuted must be invalidated in light of the aforementioned Supreme Court ruling, and no new cases should be filed under section 66A. Additionally, the Information Technology Act of 2000’s Section 66A must be struck from the official record.
The Information Technology Act, 2000 (the “IT Act”), Section 66A (punishment for sending offensive messages through communication services, etc.), and the Supreme Court’s ruling in Shreya Singhal versus Union of India[3] on March 24, 2015, were the first to declare the section unconstitutional for violating Article 19(1)(a) of the Constitution’s guarantee of the freedom of speech. This clause punished internet communication that was “grossly offensive,” “annoying,” “inconvenient,” or “insulting,” and several arrests were made as a result of it targeting political dissent. As a result, the court’s decision in the Shreya Singhal case has been praised for making important strides in India’s free speech jurisprudence and for extending the right to free speech online. There are sufficient causes for the jubilation and extolment that followed the judgement. While invalidating Section 66A, the court established significant speech-protection grounds. It distinguished between speech that is merely discussion or advocacy and communication that incites violence, and it demanded on closeness between the speech and the threatening conduct in order for limits to be imposed. Furthermore, it places the burden on the State to demonstrate that a statement incited impending unlawful behaviour. However, according to legal databases and media sources, section 66A is still employed by law enforcement authorities such as the police, trial courts, and even the Supreme Court. Several cases filed under Section 66A prior to the Shreya Singhal judgement in 2015 are still being investigated and tried in courts, and new cases have been filed since the judgement, despite the fact that the provision has been declared unconstitutional by the highest court in the land.
[1] https://www.un.org/en/about-us/universal-declaration-of-human-rights
[2] https://prsindia.org/theprsblog/a-background-to-section-66a-of-the-it-act-200
[3] https://indiankanoon.org/doc/110813550/