User:Virendra Kumar Tyagi/sandbox

Bold text '''SECTION- 66(A) IT ACT- “A DEMON IN THE CYBER WORLD” Written by Anubhav Tyagi (Advocate).

Freedom is our birth right subject to some reasonable restrictions; however mode of exercising freedom has changed today. Right is a misnomer without state, and what if the same state becomes the violator it self through the instrument of ‘just Law’ applied in an unjust manner???

INTRODUCTION Liberty is the most important attribute of human life. Liberty is inherent in humans and a life without liberty is a mere animal existence. Guided liberty in this modern constitutional era has taken the shape of freedom, as liberty with reasonable restrictions becomes freedom. Also there is well known statement of a thinker to justify reasonable restrictions which provides that “your liberty ends where my nose begins”. Therefore liberty is jewelry of each and every individual which he acquires through birth and state machinery is the security guard to protect and honor such jewel until and unless such jewel becomes toxic or threat to the state it self.

In today’s liberal democratic setup, the freedom of speech and expression has taken a very crucial role in determining the fate of Government and in turn of the state. States in International arena are advocating internet freedoms and taking commitments for the same. States have the authority and machinery to enforce fundamental freedoms and these constitutional freedoms becomes meaningless if state becomes incapable to protect such freedoms. The situation becomes even worst when the state who is a protector, becomes violator it self. The same situation is being witnessed in India while dealing with section 66A of the Information and Technology Act, 2000. Numerous instances have been reported in the Indian subcontinent, allegedly violating Art 14, 19 and 21 of the Constitution of India, through use of the above mentioned draconian provision of the IT Act.

The freedom of speech and expression with mass media has already been recognized as a fundamental right under Article 19(1) (a) of the constitution of India by the apex court in Bennett Colman v/s Union of India. In the contemporary world of internet, every body is reaching to one another using social networking sites and it has taken the form of social media which sometime performs as a mass media. These social networking websites have the traits like that of ‘group news papers’ or ‘customized personal media’ where every member is free to express his opinion in his own language and can get their views interacted, until and unless it is not offensive or detrimental to the state and its law and order machinery. Here comes the issue as to what can be exhibited on this cyber space and what not, and to go close to this issue we need to get into the provision and analyze it.

The section imposes an obligation over a user of communication device to not to send any message that is offensive or malicious in nature. To understand the controversy behind the application of this section, we have to get into the close scrutiny of the ingredients involved. The ingredients of sec 66A are as follows- 1.	Any person who sends, 2.	by means of computer resource or a communication device- A.	any information that is Grossly Offensive or has a 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, C.	any electronic mail or electronic message mail for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such message. Punishment- Imprisonment for a term which may extend to three years and with fine.

The above ingredients can be bifurcated into two acts – 1.	Sending Offensive or menacing messages, sent by using electronic communication means. 2.	Sending false messages to cheat, mislead or deceive people or to cause annoyance to them.

Analysis of the above two words clearly provides that it is very easy to determine and prove false messages and may include spam messages, phishing emails, threatening messages, etc. On the other hand it is very ambiguous and uncertain to determine the ambit of the words Grossly Offensive and Menacing Character. The law in India, be it Statutes or Precedents are not clear on the above terms and that is the real foundation where the controversy of the section begins. In such kind of situation, section becomes highly susceptible to subjective interpretation and application, and it becomes highly incapable of being judged on objective standards. This can be an instrument which can be subject to wanton abuse by the police, administrators and politicians.

Situation of Section 66A IT Act, very much resembles the earlier stages of section 498A (dowry harassment), section 307IPC (attempt to murder), section 377IPC (homosexuality), section124 (A) IPC (sedition), section 292 IPC (obscenity), provisions of Armed Forces Special Power Act etc. The above named provisions have been an instrument of wanton abuse as there were no specific judicial guidelines and statutory clarifications. Before exhausting judicial recourse before the apex court for clarification and interpretation, authorities used to interpret and apply these provisions according to their whims and fancies. Voices were raised to repeal these provisions alleging them to be unconstitutional and draconian. Supreme Court categorically laid down the judicial guidelines to avoid subjective interpretation and application so that abuse of these laws can be avoided and selective application is eliminated. Misuse of any section does not mean that there should not be a law at all dealing with such particular thing. Repealing is not the answer what we can do is to lay down guidelines and clarification so that provision becomes capable of being judged on objective standards and scope of unguided discretion of the police authorities is minimized.

Protest against the state or state authorities in cases of misuse of any provision of law would not serve any purpose, and in the constitutional democracy like ours there is a procedure established by law (constitution). If any provision of any law is found to be arbitrary or anti-constitutional then in that case we shall proceed before Constitutional Courts under Article 226 or 32 of the Constitution of India. We can see that minor out cry has taken a form of massive protest and campaign against the police authorities throughout India. Supreme Court was amazed to see that there is protest all around but no one dared to come before it to question its constitutionality. However a law student has come forward and filed a PIL before Supreme Court. We must remember that there can be no freedom or constitutional rights without the existence of the state. People having vested interests in politics or the like, indulge in such kind of shameless acts and they restrain from moving a petition before the Constitutional Courts. So it becomes very clear that whether it is Sec 66A of the IT Act or issues of homosexuality etc, the state needs to be preserved, protected and supported.

Police as the name suggests is a second name of power, authority and we often use the word ‘force’ with police. Such kind of military setup of police traced since the time of British is continued even in today’s time of civilized society. Police personnel are unable to change there general psyche regarding there power and authority. Due to coming into existence of certain new departments of police like cyber cell, special cell, STF etc, the people posted in these departments feel deficit in their authority. Due to such reduce in power of these departments of police, they have started innovating and enhancing there powers under the IT Act as it is the only law they deal with. Therefore it’s high time for the apex court to deal with the situation on the priority basis, as this controversy is becoming an international issue before the International Arena.

Central Government has issued a guideline on the implementation of Section 66A (IT) Act. This guideline, which is accused of being just eyewash to quell the public pressure, provides that junior police officials will have to seek the approval from an officer in the rank of Deputy Commissioner of Police in rural areas and Inspector General in metros under section 87 of the IT Act. This section does not apply to Section 66(A) as these kinds of guidelines are tertiary legislations. IT Act is the primary legislation passed by the Parliament, secondary are the rules and third comes the guidelines. The primary legislation can not be overreached by any guidelines. Also these guidelines are contrary to the statutory provision of the Act which provides power and authority to the police officers of the rank of an Inspector to investigate cyber crimes. Section 78 and 79 of the IT Act provides that any police officer of the rank of inspector can enter any place, search and make the arrest in cyber crime-related cases.

The above guideline is a bit hazy as it does not cater the situation of states like Uttar Pradesh where there is no Deputy Commissioners in rural areas; instead there is Deputy Superintendent of Police. It is not clear as to what will happen to the rural areas of the states like this. Central Government has been unguided and faulty while issuing these guidelines for whole of India. This situation is evident to reveal the casual attitude of the Central Government to deal with this critical situation of Section 66(A) which is acting as a monster to swallow constitutional freedoms provided by part three of the Constitution of India. This guideline creates procedural hurdles or red-tapism in the already bureaucratic police system. It is practically impossible for a common man who is genuinely aggrieved to file a complaint under section 66A of the IT Act, for getting approval of the IG or DCP level officials.

Police Officers are meant to apply their Conscience and exercise reasonable discretion on the information stated in the complaint or with regard to the suomoto cognizance of any matter. Police officers are not a mere mechanical device that has to apply a statute as a black letter law without considering the Rule of Law enshrined as a basic structure of the Constitution. In dealing with Section 66A they are acting like a statue in police uniform having no mind of their own and works only as a mouth piece and puppet of politicians having no regard to the constitutional mandates.

The present condition of section 66A is that of an idiotic horse who has been created and reared by the Parliament and is constantly trespassing into the liberal sphere of others. Apex Court has to control and train this idiotic horse to avoid any kind of harm which could be caused to others. This is not an unprecedented situation and has taken numerous times and the Apex court has always performed the task of correcting, aligning and tuning these legislative creations in the colour of Constitution of India. To preserve liberty in the cyber space and to bring it at par with other modes, the Supreme Court should take this matter as a priority and derive out some guide lines and frame work to assist and guide the authorities dealing with the issue of section 66A.

BY- ANUBHAV TYAGI (ADVOCATE DELHI HIGH COURT). E-mail i.d- anubhav_tyagi2006@yahoo.co.in; anubhav.tyagi@e-nxt.com