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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 purposes 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, image, audio, video and any other electronic record, which may be transmitted with the message.
1.1 That petitioner respectfully submits before this honorable court that the very basis of Section 66A - that it has given rise to new forms of crimes - is incorrect, and that Sections 66B to 67C and various Sections of the Indian Penal Code (which will be referred to hereinafter) are good enough to deal with all these crimes.
1.2 That it is pertinent to mention here that first and foremost Section 66A infringes the fundamental right to free speech and expression
and is not saved by any of the eight subjects covered in Article 19(2). As it is causing of annoyance, inconvenience, danger, obstruction, insult,injury,criminalintimidation,enmity,hatred orill-willareall outside the purview of Article 19(2). Further, in creating an offence, Section 66A suffers from the vice of vagueness because unlike the offence created by Section 66 of the same Act, none of the aforesaid terms are even attempted to be defined and cannot be defined, the result being that innocent persons are roped in as well as those who are not. Such persons are not told clearly on which side of the line they fall; and it would be open to the authorities to be as arbitrary and whimsical as they like in booking such persons under the said Section. In fact, a large number of innocent persons have been booked and many instances have been given in the form of a note to
the Court. The enforcement of the said Section would really be an insidious form of censorship which impairs a core value contained in Article 19(1)(a).
1.3 That again it is pertinent to mention here that Articles 14 and 21 are also breached inasmuch there is no intelligible differentia between those who use the internet and those who by words spoken or written use other mediums of communication. To punish somebody because he uses a particular medium of communication is itself a discriminatoryobjectandwouldfallfoulofArticle14inanycase.
Case 1. In Romesh Thappar v. State of Madras, [1950] S.C.R. 594 at 602,
That this Court stated that freedom of speech lay at the foundation of alldemocraticorganizations.
Case 2. In Bennett Coleman & Co. & Ors. v. Union of India & Ors. [1973] 2 S.C.R. 757 at 829,
That the freedom of speech and of the press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions.
Case 3. In S. Khushboo v. Kanniamal & Anr., (2010) 5 SCC 600
This Court stated, in paragraph 45 that the importance of freedom of speech and expression though not absolute was necessary as we need to tolerate unpopular views. This right requires the free flow of opinions and ideas essential to sustain the collective life of the citizenry. While an informed citizenry is a pre-condition for meaningful governance, the culture of open dialogue is generally of great societal importance.
To justify suppression of free speech there must be reasonable ground tofearthatseriousevilwillresultiffreespeech ispracticed.
Case 4.In Abrams v. United States, 250 US 616 (1919),
That “market place of ideas” concept that has permeated American Law. This was put in the felicitous words of Justice Holmes in his famous dissent. thus:
“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in i deas-thatthebesttestoftruth isthepowerofthoughttogetitself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be
carried out. That at any rate is the theory of our Constitution.”
That the Section 66A of Information Technology Act as unconstitutional and struck it down with immediate effect .This section had been widely misused by police in various states to arrest innocent persons for posting critical comments about social and political issues and political leaders on social networking sites Thi. s section hit at the root of liberty and freedom of expression, two cardinal pillars of democracy.
This section has to be erased from the law books as it has gone much beyond the reasonable restrictions put by the Constitution on freedom of speech because section 66A was vaguely worded and allowed its misuse by police.
Counsel on behalf of petitioner would like to pray before this honorable court that section 66 A of Information Technology Act 2000 should be quashed and heldunconstitutional.
Issue 2. Whether the offence punishable under section 66A shall be made cognizable or not ?
That Generally, cognizable offence means a police officer has the authority to make an arrest without a warrant. The police is also allowed to start an investigation with or without the permission of a court. By contrast, in the case of a non-cognizable offence, a police officer does not have the authority to make an arrest without a warrant and an investigation cannot be initiated without a
court order. The police can file aFirst Information Report(FIR) only in cases of cognizable offences. Normally, serious offences are defined as cognizable; these usually carry a sentence of 3 years or more.
That here Article 14 is also infringed in that an offence whose ingredients are vague in nature is arbitrary and unreasonable and would result in arbitrary and discriminatory application of the criminal law. Further, there is no intelligible differentia between the medium of print, broadcast, and real live speech as opposed to speech on the internet and, therefore, new categories of criminal offences cannot be made on this ground. Similar offences which are committed on the internet have a three year maximum sentence under Section 66A as opposed to defamation which has a two year maximum sentence. Also, defamation is a non-cognizable offence whereas under Section 66A the offence iscognizable.
From a legal perspective, section 66 A is poorly drafted on a major point and that is Cognizable offence. It means that a police officer has the authority to make an arrest without a warrant. The police are also allowed to start an investigation with or without the permission of a court.
To put this in a layman’s language, if public post something. A police officer does not like it. He or she can arrest a person immediately, without needing anyone’s permission. They do not need a court of law to issue any arrest warrant, or even a senior to give instructions on this issue. Leaving to the police the interpretation of an overly-broad law to restrict freedom of expression, one which brings into existence entirely new offences and does not recall checks and balances for existing ones, only further aggravates the
potential for inappropriate and arbitrary application of the law. In the absence of clearly defined thresholds for criminalisation, police have no yardstick to assess a situation by but their own.
That even when the law is appropriately specific and high and robust thresholds have been articulated, the assessment and adjudication of each set of facts should, as UN Special Rapporteur on Freedom of Expression Frank La Rue has reminded us, be done by “a body that is independent of political, commercial or other unwarranted influences in a manner that is neither arbitrary nor discriminatory, and with adequate safeguards against abuse”. Because of the far-reaching consequences of inappropriate applications of restrictions on freedom of expression, including a possible rippling chilling effect on free speech, it is therefore advisable that any law that seeks to impose restrictions on the right to freedom of speech and expression in India be classified as a non-cognizable offence.
