Correction dt. 25.03.2015:
Yesterday, the Supreme Court scrapped S.66A, IT Act. Thus, I re-visited this topic and realized that the offences under the IT Act are not governed by CrPC but S.77B, IT Act, as per which, S.66A is cognizable and bailable; so, a correction here.
Article dt. 21.11.2012
I have no doubt whatsoever that the sole purpose of s. 66A IT Act is to intimidate the netizens from freely exercising their right to expression of speech. The provision is reproduced below:
Punishment for sending offensive messages through communication service, etc.( Introduced vide ITAA 2008)
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 makes by making use of such computer resource or a communication device,
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 (Inserted vide ITAA 2008)
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.
The evil of the above provision lies in the punishment of three years. As per the first schedule to the CrPC, any offence under any other law than IPC carrying a punishment of 3 years or more is a cognizable and non-bailaible offence. I say three year punishment has been deliberately kept to give power to the police to arrest without warrant.
The offence under S. 66A(a) is ambiguous: It doesn’t specify whether the information should have been sent to a particular person/group or to the public at large. If it also includes the information sent to the public at large, then, undoubtedly, the only purpose of this provision is to curb the freedom of speech. Anything said or done will always be offensive to someone or the other; no test of reasonable man can be applied in this case because a reasonable man will also have his prejudices and will be offended by something which another reasonable man may not be. All the provisions of a similar character under the IPC link such offensive nature of information to some kind of ill-effect that they are likely to cause to the society like breach of peace, enmity between classes, religious hurt, hatred against the state, etc; s. 66A(a) doesn’t specify any such thing and is also a cognizable offence, and it is therefore a draconian provision to sub-serve the interest of the political and the elite class, which uses the police as its domestic servant.
Though s. 66A(b) also doesn’t specify whether it is intended for the information to the public at large or not, but the provision does specify the ill-effects, and also it specifies that the information should be false. However, I do think that the provision from the very look of it seems to be directed towards the ill-effects to individuals/groups and not to the public at large, and, if so be the case, the people will have to wait for the courts to clearly interpret the provision unless the parliament decides to amend it. S. 66A(c) is unambiguous and clearly punishes the ill-effects to the individuals/groups to whom the e-mail communication is sent. I am not sure whether the principle of ejusdem generis can and should be applied while reading s.66A(a), but, if applied, then s.66A(a) would also be read down to mean any information that is grossly offensive or menacing to any individual or a group, but not to the public at large. If that be so, there is no reason whatsoever for making s.66A as cognizable and non-bailaible offences. It is well known principle of criminal law that it doesn’t punish private injuries unless they attack the public consciousness. However, there are certain offences like that of defamation where the private injuries have also been made punishable under criminal law, but all such offences are non-cognizable offences, and it is rightly so as the police just can’t have any role to play in the case of private injuries. From whatever recent trend I am seeing in the application of this section, I can easily claim that the provision is being used to punish those who point fingers on highly influential private individuals or groups (even when they are dead). It seems a provision has been created for the protection of the elite sections of the society from the wrath of the common people, and also it seems an Indian Dream on the lines of the “American Dream” has been created for the common people to aspire and enter the elite group, which will not only be the master of the courts and the police but also the law per se — unfortunately, I have lost my power to dream because of the insomnia caused by s. 66A IT Act.
Ankur Mutreja is an advocate-cum-writer, and his blogs are amongst his modes of expression. He has also authored six books: "Kerala Hugged"; "Light: Philosophy"; "Flare: Opinions"; "Sparks: Satire and Reviews"; "Writings @ Ankur Mutreja"; and "Nine Poems"; which can be downloaded free from the links on the top menu.