Legal Regime of Cyber Fraud by Vanshika Chauhan at LEXCLIQ

IT Act was enacted on 9th of June 2000, which is the first act covering the arena of cyber space. Law relating to cyber laws revolves mainly around:

  1. Cyber crimes
  2. Electronic and digital signatures
  3. Intellectual property
  4. Data protection

IT Act was amended in 2008 to address the issues that the original act failed to cover and to accommodate the further development of IT and related security concerns the since the original Act was passed. The cyber laws inter alia covers some topics in the Indian penal Code, Intellectual property Rights, The Indian Evidence Act, Companies Act and others as well still does not hold enough to cover the enormous ambit of cyber crimes.

Section 66A of the IT Act was added in the IT Act Amendment of 2008.This section deals with publishing of threatening, offensive or false information. Later this section was criticized for being violative of Article 19 of the Indian Constitution which states about freedom of speech and expression. The certain exception to this article is on grounds of: Defamation, incitement to crime, contempt of court public order decency morality friendly relations with neighbors, national security.

Section 66A restricts freedom of speech and expression through electronic means i.e. over internet and other e-sources and in no case it is included even in the restrictions provided in article 19 of the Indian constitution. For instance, it punishes one for sending messages which cause annoyance or hurt the sentiments or knowing it to be wrong. There are many instances wherein these types of actions are perfectly valid over other forms of media like print. A print document can be legally valid for the same but illegal in the electronic form. This shows the lacuna of IT Act in India where a person is not even free to express his views over the internet or electronic media.

Many petitions were file which challenged the constitutionality of S.66.

In one of the leading case of SHREYA SINGHAL V. UNION OF INDIA, the question was whether Section 66A is required to be declared unconstitutional for being in violation of Article 19(1) (a) and is not saved by Article 19(2).

It was held that the Petitioners were correct in saying that public’s right to know was directly affected by Section 66A and that Section 66A in creating offence against persons who use internet and annoy or cause inconvenience to others very clearly affects freedom of speech and expression of citizenry of India at large. The aforementioned section arbitrarily, excessively and disproportionately invades right of free speech and upsets balance between such right and reasonable restrictions that may be imposed on such right. Therefore, it was held that Section 66A was unconstitutional also on ground that it takes within its sweep protected speech and speech that was innocent in nature. No part of Section 66A was severable and provision as whole must be declared unconstitutional. It creates offence which was vague and overbroad, and, therefore, unconstitutional under Article 19(1) (a) and not saved by Article 19(2).

The SC by examining Indian, English and US law on free discourse, struck down Section 66-A of the Information Technology Act declaring it to be over-expansive and ambiguous and violated article 19(2) of the constitution.

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