Resurrecting a Dead Law : Section 66A of IT Act : Daily Current Affairs

Relevance: GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.

Key Phrases: Criminalising Offensive Messages, International Treaty on Combating Cybercrime, Section 66A of the Information Technology Act, 2000, Shreya Singhal v. Union of India, Chilling Effect on Free Speech, United Nations Ad Hoc Committee

Why in News?

The second session of the United Nations Ad Hoc Committee (AHC) has been convened to negotiate a proposed UN treaty on “countering the use of information and communications technologies for criminal purposes”.
An Indian delegation to a UN conference on cybercrime in Vienna has proposed the use of measures that are almost identical to those in the controversial section 66A of the Indian Information Technology Act, which was struck down as unconstitutional by the Supreme Court in 2015.

Key Highlights:

India has made a formal submission for criminalising “offensive messages” as part of the ongoing negotiations at the United Nations for a proposed international treaty on combating cybercrime.
Thus, section 66A of the Information Technology Act, 2000, which the Supreme Court had declared unconstitutional in 2015 in Shreya Singhal v. Union of India for having a “chilling effect on free speech” is back in the news.
The language in the submission is similar to what was used in Section 66A.
If India’s submission becomes part of the proposed treaty, it would result in the return of section 66A.

The Information Technology Act, 2000:

The IT Act is an Act of the Indian Parliament notified in 2000 which is the primary law in India dealing with cybercrime and electronic commerce.
Secondary or subordinate legislation to the IT Act includes
- the Intermediary Guidelines Rules 2011 and
- the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
The Act provides a legal framework for electronic governance by giving recognition to electronic records and digital signatures.
The Act directed the formation of a Controller of Certifying Authorities to regulate the issuance of digital signatures.
It also established a Cyber Appellate Tribunal to resolve disputes arising from this new law.
The Act also amended various sections of the Indian Penal Code, 1860, the Indian Evidence Act, 1872, the Banker's Book Evidence Act, 1891, and the Reserve Bank of India Act, 1934 to make them compliant with new technologies.
A major amendment was made in 2008 which introduced Section 66A which penalised sending "offensive messages".

Section 66A of the IT Act

Section 66A gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.
It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet.
It provided for a punishment of three years in jail.
In 2015, the apex court struck down the law

Why was the law criticised?

Vagueness of the term “offensive”: The word has a very wide connotation hence open to distinctive, varied interpretations, what might have been inoffensive for one person, could lead to a complaint from someone else and if the police prima facie accepted the views of complainant this could result into an arrest under Section 66A.

Verdict of Supreme Court of India

On March 24, 2015, an SC Bench in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).”
In the opinion of the court, the ambit of Section 66A is so wide that virtually any opinion on any subject would be covered by it and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.
The bench also read down section 79– now at the centre of the ongoing “intermediary liability” battle between the Centre and micro-blogging platform Twitter– defining key rules for the relationship between governments and commercial internet platforms.

What is the protection accorded to intermediaries under section 79 of IT Act?

Section 79 says that any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.
This means that as long as a platform acts just as the messenger carrying a message from point A to point B, without interfering with its content in any manner, it will be safe from any legal prosecution brought upon due to the message being transmitted.

How does this impact Intermediary platform?

It opens up the platform to the possibility of any and all penal action that is likely to be taken against it as a publisher of content since the protection accorded to Twitter under Section 79 of the IT Act is now gone.
This means that if someone puts out any content on Twitter that leads to some form of violence, or violates any Indian law with respect to content, not only the person that has put out the tweet will be held responsible, even Twitter will be legally liable for the content as it no longer has the protection.

Is international treaty binding on Indian Legal System?

India is a dualist State. Therefore, international law does not become a part of the domestic legal system unless it is specifically transformed into domestic law by Parliament, which will be required to enact legislation to implement the international law. As per Article 253 of the Constitution, Parliament has the “power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention”,
This is different from the theory of monism, wherein international law is automatically incorporated into the domestic legal system of the country even without Parliament enacting any enabling legislation.
Over the years, the Supreme Court of India has moved away from this traditional dualist approach towards monism.
In cases such as Vishakha v. State of Rajasthan (1997), National Legal Services Authority v. Union of India (2014), and K.S. Puttaswamy v. Union of India (2018), the court followed an approach of judicial incorporation by reading international law into domestic law in the absence of any specific prohibition in municipal law.
In other words, the emerging principle is that courts will respect international law unless it can be shown that it is inconsistent with municipal law.
If we do get an international treaty combating cybercrime with a provision similar to Section 66A, the Indian courts will not read this provision as part of domestic law because of the judgement in the Shreya Singhal case.
It will be a classic case of an international law being in conflict with domestic law.
Thus, the Indian courts will give primacy to the domestic law, not the international treaty provision criminalising “offensive speech”.

Freedom of Speech & Expression& Indian Constitution

Preamble: Liberty of thought ,expression
ART19(1)(a): “All citizens shall have the right to freedom of speech and expression” but subject to Art 19(2)
ART19(2): stipulates “reasonable restrictions” imposed on this right which are:
“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”.

Conclusion:

It is yet to be understood as to why the Indian government has proposed the inclusion of a provision in an international treaty which was struck down by its own apex court for breaching fundamental rights.

Source: The Hindu

Mains Question:

Q. Is the international treaty binding on Indian Legal System? Discuss in the light of India’s formal submission for criminalising “offensive messages” for a proposed international treaty on combating cybercrime and in the event of the latter becoming a law. (250 words).