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Sk Jahangir Ali

Assistant Professor Balurghat Law College

Posted On by &filed under Legal Articles, Miscellaneous Legal Articles.


Technology changes the dimension of the society. Obscenity in electronic form, morphing  of images, defamation, text bullying, stalking, spamming, unsolicited emails, criminal intimidation, extortion, public mischief, insult, threat to cause injury have penetrated in this modern society with the help of cyber technology. Under this back drop the legislative body incorporated section 66 A under the Information Technology Act. The Information Technology Act, 2000 was amended in 2008. The amended Act which received the assent of the President on February 5, 2009, contains section 66A.

Section 66 A of the Information Technology Act, 2000 runs as under:

“66A. Punishment for sending offensive messages through communication device, etc.-Any person who sends, by means of a computer resource or a communication device,—

(a)    any information that is grossly offensive or has menacing character; or

(b)    any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device; or

(c)     any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation.— For the purpose of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.”

 

Area of controversy:

Free speech is the life blood of a democracy. Now the free speech is becoming un-free due to vague section in Information Technology Act.  Section 66 (A) provides for a jail term of up to three years for anyone who uses a computer or any other communication device to send information that is grossly offensive, menacing’, causes annoyance or hatred. Section 66(A) fails to define the term grossly offensive and annoyance. Under the banner of the word grossly offensive and causes annoyance police can arrest any person because it gives the police unfetter power to arrest anyone in this modern technological age. It is very true that the mental ability of tolerance and annoyance differ person to person, place to place and time to time. Different persons with different mental structure have their different level of annoyance.An April Fool joke ca not also get exemption under Section 66A of the Information Technology Act.

Under this purview it can be said that Section 66 is vague and hence violative of Art 14 of the Constitution. Unfetter power of the police affects the very right of freedom of speech and expression under Article 19(1)(a) of the Constitution. Threat to public order, defamation, incitement to offence, contravening decency and morality, committing contempt of court, etc. are listed in Article 19(2) as grounds to limit freedom but not the matter of grossly offensive and annoyance, menacing character or causing inconvenience, danger, obstruction or insult. Right to life and personal liberty is a guaranteed right under Article 21 of the Constitution and by the virtue of the Section 66A the police gets the unfetter power to arrest any person to consider a tweet or blog ‘grossly offensive’ or ‘of menacing character’, or causing ‘inconvenience, annoyance, danger, obstruction or insult’, is also a great threat to Article 21.

 

Conclusion:

From the above noted observation it can be said that Section 66A of the Information Technology Act is in conflict with Article 14,19(1)(a) and 21 of the Constitution as because Section 66A  absolutely  provides the police with the power to arrest any person under the banner of the word ‘grossly offensive’ or ‘of menacing character’, or causing ‘inconvenience, annoyance, danger, obstruction or insult’ after considering  e-mails, SMSes, blog, vblog, tweets, image, sound(VoIP). It is the need of the hour to amend this draconian section of the Information Technology Act.


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