Section 66A Not for Curbing Freedom of Speech, Govt Says

Section 66A Not for Curbing Freedom of Speech, Govt Says is a Mint court report by Akansha Seth and Apoorva published on 4 February 2015. The piece covers the central government’s written submission to the Supreme Court during the Shreya Singhal hearings, in which Additional Solicitor General Tushar Mehta argued that Section 66A of the IT Act was designed solely to fight cybercrime and had no connection to freedom of expression. The article includes a response from Sunil Abraham, who points out that if the government’s claim were true, the provision would be unnecessary and the Court should strike it down.

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Article Details

📰 Published in:: Mint
📅 Date:: 4 February 2015
👤 Authors:: Akansha Seth; Apoorva
👥 Contributor:: Gaurav Mishra
📄 Type:: News Report / Court Coverage
📰 Newspaper Link:: Read Online

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New Delhi: The central government on Tuesday clarified to the Supreme Court that penal provisions of the Information Technology (IT) Act, 2000, were not intended to curb freedom of speech.

Instead, the controversial Section 66A of the IT Act, challenged in the apex court, is designed to fight cybercrime and has nothing to do with any citizen's freedom of speech and expression, the government said, adding that these provisions seek to protect the right to life of Indian citizens.

The government's clarification, made in a written submission to the Supreme Court, is significant because the argument made so far in the court by opponents of the controversial section is that they are misused to curb freedom of expression.

The penal provisions deal with online criminal offences like phishing, vishing (voice phishing), spoofing, spamming, and spreading viruses that have a serious potential to not only damage and destroy the computer system of an individual citizen but also bring the functioning of vital organizations and, in extreme cases, even the country to a standstill.

The stand of the government is interesting because it comes on a petition filed when police arrested a 21-year-old girl for questioning on Facebook Mumbai's shutdown after Shiv Sena leader Bal Thackeray's funeral in 2012. Another girl who "liked" the comment was also arrested. Last May, five students were detained by police for spreading an anti-Narendra Modi photo on WhatsApp.

"If 66A, as the government argues does not set any additional limits on freedom of speech and expression, then it is wholly unnecessary, serves no purpose and should be struck down by the honourable court. After all it has never been used to tackle the problem of spam which was the original intent," said Sunil Abraham, executive director, Centre for Internet and Society, a Bengaluru-based think tank.

The central government has clarified that the phrases annoyance, inconvenience, danger, or obstruction as used in Section 66A have no correlation or connection with any citizen's freedom of speech and expression. Consequently, if as a result of a citizen exercising his or her freedom of speech and expression, annoyance, inconvenience, danger or obstruction is caused while sending anything by way of a computer resource or a communication device, it will not be a penal offence under section 66A.

The government has also argued that if an individual chooses to misuse the provision for a purpose for which it is not intended or resorts to the expressions inconvenience or annoyance in a casual manner, it would be a case of abuse of the process of law. However, it would not be a ground for declaring the provisions unconstitutional if they are otherwise found to be constitutional.

Additional solicitor general Tushar Mehta, appearing for the central government, argued that no one can file a criminal complaint on grounds that they received an information that caused annoyance, inconvenience, etc. — grounds mentioned under section 66A.

Mehta also suggested that the court could come up with guidelines on how to interpret the section, or such regulations could be framed under section 89 of the IT Act which empowers the controller to make regulations to carry out the purposes of the Act, in consistency with it, after consultation with the Cyber Regulations Advisory Committee and with the previous approval of the central government.

Mehta argued that authoritative discretion was required because a precise and concise definition of grossly offensive or menacing character — terms used in section 66A — was not possible. "Nobody can allege that they are annoyed by the exercise of someone's freedom of speech," he added.

Gaurav Mishra contributed to this story.

Context and Background

This article appeared during the Supreme Court hearings in Shreya Singhal v. Union of India, the landmark constitutional challenge to Section 66A of the IT Act. The case had been prompted by a series of high-profile arrests, including the November 2012 detention of two women in Maharashtra — one for a Facebook post questioning the shutdown of Mumbai after Bal Thackeray’s funeral, the other merely for “liking” the comment. Those arrests had galvanised civil liberties advocates and drawn attention to how Section 66A was being used to police dissent rather than tackle spam or technical cybercrime.

The government’s submission sought to distinguish Section 66A from restrictions on speech by arguing that its purpose was limited to combating cybercrime and protecting the right to life. Petitioners, however, maintained that the wording of the provision and its pattern of enforcement demonstrated its impact on expression.

Sunil Abraham’s response, quoted in the sixth paragraph, called out this contradiction. If the government’s claim were accurate — if Section 66A imposed no additional limits on free speech beyond what the Constitution already permitted — then the provision was redundant and should be struck down. Moreover, Abraham argued that the section had never been used to tackle spam, which he described as its original intent, but had instead been deployed repeatedly to arrest critics, commentators and ordinary citizens for online speech. This was the essence of the petitioners’ case: the law was unconstitutionally vague, and its actual enforcement pattern revealed its true character as a speech-suppression tool.

The Supreme Court would reject the government’s position entirely. On 24 March 2015 — seven weeks after this article — the Court struck down Section 66A in its entirety, holding that the provision violated Article 19(1)(a) of the Constitution and could not be saved by any interpretive guidelines. The judgment cited the section’s vagueness, its chilling effect on free speech, and the impossibility of narrowing its scope through judicial construction. The government’s attempt to recharacterise Section 66A as purely a cybercrime provision, as documented in this article, was unpersuasive to the bench.