My analysis of Judgment on Section 66A

The Hon Supreme Court of India has pronounced its verdict on 24 March 2015 regarding Scrapping of I T Act’s section 66A.In the words of Hon Supreme Court, “Section 66A is struck down in its entirety being violative of Article 19(1) (a) and not saved under Article 19(2).”

The Bench turned down a plea to strike down sections 69A and 79 of the I T Act, which deal with the procedure and safeguards for blocking certain websites and exemption from liability of intermediaries in certain cases, respectively.

Everywhere it is seen as Huge Victory of Netizens as A DRACONIAN ACT has been shown death bed by Hon.SC but in fact SC has never referred the said provisions of act AS DRACONIAN anywhere.

Let me critically examine the observations in 123 pages verdict delivered by Hon Judges.

In para 9 SC highlighted that Public Criticism is essential for Democracy as Freedom of Speech and Press is Ark of Covenant of Democracy. In para 10 judges referred that Importance of Freedom of speech though not absolute but were necessary as we need to tolerate unpopular views. Informed citizeny is a precondition for meaningful governance the culture of open dialogue is generally of great social importance.

Here Hon. SC has reposed more faith in wisdom of citizens than law makers. Indeed Time will upset the current faith and belief of SC that Free Trade of Ideas on Social platforms is according to the true spirit of Freedom of Speech and Expression. Informed citizeny is indeed a pre condition but Are our citizen really well informed and Digital Literate? Are our young netizens really bothered about whatever is available through this medium? When preferred site for downloading songs is hosted from outside India and due to which huge quantum of revenue is lost by Film Industry, are these citizen be called as Informed? When most of the traffic on internet is related to Pornographic search, are these citizen be called well informed? When Cyber crimes are increasing at rapid pace and in geometric progression Are these citizen be called well informed? Does our informed citizens believe POER CORRUPTS AND ABSOLUTE POWER ABSOLUTELY? Now as the 66A is repealed these informed citizens will have Absolute Power of expression which hopefully will be utilized with restrain.

Para 12 mentions “To justify suppression of Freedom of Free Speech there must be reasonable ground to fear that serious evil result if free speech is practiced.”“It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right,” said a Bench of Justices J. Chelameswar and Rohinton F. Nariman. In Para 13, It was highlighted that concepts of understanding Freedom of Speech and Expression are Discussion, Advocacy and Incitement. It is only when such Discussion or Advocacy reaches level of Incitement that Article 19(2) kicks in. Discussion, or even advocacy, of a particular cause, no matter how unpopular it was, was at the heart of the right to free speech and it was only when such discussion or advocacy reached the level of incitement that it could be curbed on the ground of causing public disorder.

Is there any measuring device available which will tell with certainty that now Incitement level is reached? With the magnitude of users and reach internet can cover and also cultural, linguistic, religious diversities will it be really possible to identify whether the expressions are limited to discussions or advocacy or have they crossed to the level of incitement? And who will be proper Judge to decide?

Para 14 is very unique one wherein SC has made its observations “A word needs to be said about use of American Judgments in context of 19(1). In virtually every judgment of SC reference has been made to judgments across the Atlantic. IS IT SAFE TO DO SO????

Can we not apply our own logic for the medium specially developed, owned and controlled by states across the Atlantic????

In Para 20 judges relied on across the Atlantic Justice Jackson’s stating “It is not function of government to keep citizen from falling into error; it is function of citizen to keep Government from falling into error.”

So if government is not supposed to prevent and protect its citizen from falling into errors then what is meaning of Welfare State? The government has brought the section 66A with very genuine intention of protecting rights of its citizen in cyberspace and from falling them into various traps laid by this new medium of communication, which is in its very early days, but government machinery failed miserably in its implementation.

In fact in subsequent Paras 28 Judges have clearly accepted the distinction between Internet and other media and rejected to accept that Article 14 has any say in the matter.

In subsequent Paras court has observed that “Mere annoyance need not cause disturbance of public order. Under Sec 66A the offence is complete by sending a message for purpose of causing annoyance either persistently or otherwise, without in any manner impacting public order.” “The definition of offences under the provision was “open-ended and undefined”. “An article in order to be banned must have a tendency to excite persons to acts of violence”. The court then went on to say that Section 66A actually had no proximate connection with public order or with incitement to commit an offence. “The information disseminated over the Internet need not be information which ‘incites’ anybody at all. Written words may be sent that may be purely in the realm of ‘discussion’ or ‘advocacy’ of a ‘particular point of view’. Further, the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the [Indian] Penal Code at all,” the court held.

Holding several terms used in the law to define the contours of offences as “open-ended, undefined and vague”, the court said: “Every expression used is nebulous in meaning. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.”

By applying the same logic SC has accepted that the terms are open-ended and undefined. In my view open ended terms can be very well defined by the authorities as per case to case basis. Judiciary wanted to reestablish its supremacy in interpretation of statues and does not want to delegate it to any other agency. Have we not observed in many cases from our judiciary where one court interprets in one way and other court reverses the interpretation? Can it not be said that when a thing can be offending to one person his right to retaliate is invaded now? The cases which were before SC were the one’s in which SC viewed from one angle and left other angle totally unseen due to its openness and vagueness but not considering True spirit behind the same.

The court pointed out that a penal law would be void on the grounds of vagueness if it failed to define the criminal offence with sufficient definiteness. “Ordinary people should be able to understand what conduct is prohibited and what is permitted. Also, those who administer the law must know what offence has been committed so that arbitrary and discriminatory enforcement of the law does not take place,” the court said.

So it would have been more appropriate had SC asked to narrow down the scope of open-ended ,under defined and vague words to finality so that people would have understood it more properly. Even in Para 49, SC maintained that wholesale substitution of provisions as suggested by ASG, is not possible for acceptance.

In paras 82 to 90 SC has merely pointed out that Sec 66 A has absolutely no manageable standards by which to book a person for offence under it. The section is cast so widely that virtually any opinion or any subject matter would be covered by it. Such is the reach of the section 66A and if it is to withstand the test of Constitutionality the chilling effect on Freedom of speech would be total. Section 66A needs to be struck down on grounds of over breadth and vagueness. Also submission of government about doctrine of severability is vague as government did not indicate which part of Section 66A can possibly be saved. SC also opinioned that possibility of Section 66A being applied for purpose not sanctioned by Constitution can not be ruled out and it must therefore be held to be wholly unconstitutional and void.

So by examining the entire judgment I feel that only due to open-ended words or vagueness of words Hon SC thought the provisions of Section 66A as unconstitutional. Had it not been the CUT COPY PASTE tendency of our lawmakers and a little application of mind so as to at least define the terms in Section 2 of I T Act, rather than leaving then open and for broader interpretation, there was no flaw in Section 66A. SC has only decided on issue brought before it and still there is ample time for government to learn from mistakes of past. The government should define precisely all the words prior to their insertion in any statute and enact new Section 66A in much simplified form but at the earliest.

Cyberspace can not be left to be ruled by whims and fancies of the netizens and their self consciousness, as it has totally changed the rules of game. Governments may come and go but the possible destruction by such lawlessness in Cyberspace may have severe impact on humanity and probably we would not be alive to witness the same. The aftermath of lawlessness in Cyberspace would be very devastating and which we will be witnessing soon.

The hysteria shown by activists after the verdict is yet to settle down. Everybody is celebrating it as day of independence of internet. I can only PREY TO GOD “FORGIVE THEM BECAUSE THEY ARE NOT KNWOING WHAT THEY ARE CELEBRATING”.

Free Guidance for Online Fraud Victims - A need of Hour

Cyber Awareness Organisation is spreading awareness about various events in cyber space and also providing advisory services for cyber fraud victims through its CYBER CRIME HELPLINE 09225109900.

Nowadays with spread of internet and mobile telephony, e-commerce has attracted attention of many and it includes cyber criminals also. The growth of online shopping/online money transfer activities is welcome and the benefit of customers is of immense value. But a few are witnessing some acts of bad elements like non-receipt of goods or receipt of goods with changed specification or of inferior quality etc.

In this situation the customer is left with no option than to blame himself as citing jurisdiction issues police don’t register FIR not customer is aware about legal remedy available . And hence to educate consumers about their rights while making Online shopping is a need of hour now!!!!!!

To provide free advice to such customers CYBER AWARENESS ORGANISATION appeals them to visit its office at, Lakshmikeshav Apartments, Soniline, Opp. Patwardhan High school, Sitabuldi Nagpur-440012, with all necessary documents between 4-6 pm. The complainant can also mail info@cyberorgindia.com with all details.    

Police Investigations and Cyber Crime

Today there were two news reports related to cyber crime in local news paper.

One related to success of Police in nabbing cyber criminals involved in Fake phone calls for compromise of ATM password and other details and thereafter making huge purchases from various online portals and used same online route to dispose the used goods!!!!

Other related to filing the FIR in similar job scam.But this story in reality is somewhat different where Police in Nagpur almost took more than a month to file this FIR.

In first case Police needs to be congratulated for their splendid efforts and hard work in connecting the dots!!

But in second matter citing Jurisdiction issue is not at all understandable!When I T Act provides for Global Jurisdiction why police make these petty issue of local jurisdiction?Don't they understand that by such their act they are indirectly helping the criminals by not registering the matters?They are also wasting valuable time of investigation.Cyber Criminals could be nabbed if police act swiftly and here our police are wasting much time in deciding the jurisdiction issue.By these tactics Police may be successful in discouraging the complainant about the thought of Filing FIR and seeking Justice but on the contrary they have helped criminals by letting them a easy escape!!!!!!

Do we need such attitude of police in matters of CYBER CRIMES?????

Hon.Chief Minister Maharashtra has ordered for set up of three new CYBER POLICE STATIONS in Mumbai.But what about Second capital and other cities?Don't they witness cyber crimes or whatever they lose is not of significance????Or by the cyber crimes reported by Police it is only Mumbai which is witnessing Cyber Crimes and in rest of the state ALL IS WELL????

The other worrying aspect is Online portals like QUIKR and OLS are used by criminals to buy as well as sell the goods.So are we to understand that ONLINE PORTALS ARE SAFE HEAVENS FOR CYBER CRIMINALS?????

In fact I regularly advice the complainants of missing Mobile phones to visit various online resale portals for finding their lost/stolen mobile phones.

And if these portals are used for such fraudulent activities should they be governed by some rules are not????

The scenario is getting worse day by day by addition new online users.


I  can only say that GOD ONLY CAN SAVE DIGITAL ILLITERATES!!!!!

It’s confirmed!!!! Social Media is additive for Communal Tension!!!!!

State Intelligence Department of Maharashtra has confirmed through its findings that Social Media is playing very significant role in creating communal tension. Be it inciting communal tensions or creating hatred between political or social groups role of social media is most momentous .Rather social media is used for adding fuel to trivial issues which can flare up instantaneously.

According to reports in last 10 months 482 cases were registered in state due to derogatory remarks posted on social media. I presume that these cases must be registered only in context with the original creator of the post and those persons who subsequently commented on the original posting in more derogatory or offending manner or those persons who liked and shared such derogatory postings more vociferously would have been spared. Even there would have been more derogatory contents on such liking and sharing and tagging.

Another interesting statistics published is as below. 125 cases were registered for hurting Hindu religious sentiments against which 182 reactions occurred in State which led to reporting 271 cases. 37 cases were registered for hurting Buddhist religious sentiments against which 290 reactions occurred in State which led to reporting 96 cases. 76 cases were registered for hurting Muslim religious sentiments against which 38 reactions occurred in State.

This statistics makes role of social media evident in escalating the crimes and use of social media as additive for acceleration of overall crimes. This must be the first ever incident where any of the existing Government agencies have shown courage to openly expose the nexus between Social Media and growth in crimes though in specific domain of Communal hatred crimes.

As an old saying “WELL BEGUN IS HALF DONE” I congratulate SID for publication of such report. The report further acknowledged that delay in apprehending of culprits has created resentment about police machinery.

Here I would like to make few suggestions.

1)      There should be proper understanding in Police machinery about destructive capability of Social Media and this is possible only through trainings by the Cyber Security Specialists.

2)      There should be proper understanding about the available legal provisions for such mishappening in Cyberspace and procedural knowledge about How to stop such social media postings, How to block websites or Defamatory contents etc. must be provided to police personnel.

3)      There should be effective mechanism for monitoring social media through extended arms like professionals actively working in similar domain, Go’s and other information sources.

4)      There should be Cyber Awareness Campaign amongst netizens about Myths and Facts of Social Media and Do’s and don’t on Social Media or online behavior in general.

I, on behalf of CYBER AWARENESS ORGANISATION, extend my support and active participation in any such programs organized by any organization.

MOCKERY OF JUSTICE IN INDIA (In reference to Cyber Litigation's)

In the beginning I would like to apologies those, who were felt offended by the title of this blog.As an extended arm of Justice i.e. being an Advocate myself , I am also a part of this Indian Judicial System which is making Mockery of Justice for those who are availing justice in matters of Cyber Litigation.

Very few people and very few lawyers are aware about the remedial measures in case of Civil matters related to Cyber Crimes.Where the civil dispute in cyberspace is between two individuals or body corporate and individuals there is Civil Remedy under Information Technology Act.

Under Information Technology Act Section 46 Government is empowered to appoint Adjudicator and Under section 48 Government is empowered to appoint Cyber Appellate Tribunal and chairperson to CAT.

If any person is aggrieved by decision of Adjudicator he can move to Cyber Appellate Tribunal for appeal.

The real mockery of Cyber Litigation starts now.

In most of the states in India office of Adjudicator is almost non-existent or non-performing. The reason behind the same is either the person who is supposed to be Adjudicator is not aware about his duties or the office staff of the said supposed to be Adjudicator is not aware about the procedure of the office of Adjudicator and above all most of the cyber crime victims/ lawyers /police officers are not aware about this CIVIL REDRESS MECHANISM.

Recently I mailed to most of the I T Secretaries in India to ascertain whether they have received any complaints for Adjudication and was shocked to discover that Most of the I T Secretaries offices responded that matter is to be filed with Police and I T Secretary has no role to play in Cyber Crimes adjudication.

Do you consider this as a Mockery? I certainly do!!!!!!!

The story does not end here. Few adjudicators(which can be counted on fingers) in India who are deciding the matters,have not set up any formal procedure for the Adjudication.No specific dates of month are reserved for the hearings nor there is any limitation within which parties are supposed to reply or police are supposed to submit there investigation report etc.Though as per provisions of 4k Adjudicator is supposed to hear application within 4 months and dispose within 6 months.

 Do you consider this as a Mockery? I certainly do!!!!!!!

To top all the mockeries The Cyber Appellate Tribunal is without any Chairperson since last 3-4 years.Matters filed before CAT since 7 October 2010 have never came up for hearing since there is no Chairperson appointed to CAT.

Till date 1 matter of 2009,2 matters of 2010,6 matters of 2011,4 matters of 2012 ,10 matters of 2013 and 8 matters of 2014 have never moved a step further after their filing.

We very proudly say that JUSTICE DELAYED IS JUSTICE DENIED and our directive principles also emphasis for Speedier Justice to all and look the situation in Cyber Crime Civil Justice Mechanism.Here neither of the above are applicable and which in my view is Really Mockery of Cyber Litigation.

Recently even Government of India has given undertaking before Hon.High court that CAT chairperson will be appointed soon as all the procedural formalities are completed but the day is yet far away!!!!!

The growth in cyber crimes is amazing and the very message send to criminals by our Judicial system that we are not performing is adding Cherry on the top!!!!!!!


The only intent is to create some serious thought process churning and do whatever we can to prevent this Mockery!!!!!! 

Mumbai High Court's decision boost to CYBER AWARENESS ORGANISATION’S mission and vision.

Cyber Crimes are significantly reported by all newspapers. It might be lottery fraud or withdrawal of money even if Credit / Debit card is with the card owner or sending abusive message or creating fake profile or data theft etc. It’s really alarming the way Cyber crimes are growing and people are losing their hard earned money or reputation.

But unfortunately when victims try to report the matter to police or concerned Bank, the way he is treated and questioned about his illiteracy of the subject matter and make him feel that instead of complainant he is in fact criminal himself, the victim gives up. Cyber Awareness Organisation has raised this issue of apathy of LEA’s towards victims of Cyber Frauds many times.

In a significant verdict recently delivered by Mumbai High court, court has directed all mobile service providers to issue messages cautioning citizens against falling for such fraudulent messages and emails. The court also directed the Maharashtra government to create awareness, including by putting out advertisements, "asking citizens to be cautious of such messages and emails". This is major boost to CYBER AWARENESS ORGANISATION’S mission and vision of creating cyber awareness, which it was spearheading single handedly till date.

Among its public welfare directions was one for banks too; banks have been asked to ensure that Know Your Customer guidelines are followed by the Court."It is common knowledge that such messages and emails are received by a number of people," said a division bench of Justices V M Kanade and Anuja Prabhudessai. 

The court was hearing a plea by Nashik farmer Namdeo Warade, 47, for an order for the Central Bureau of Investigation (CBI) to probe how he was cheated of Rs 29 lakh. On September 15, 2010, Warade received a message on his phone saying he had won $5 lakh at a purported Coca-Cola competition held in London and asked to contact an email address. 

CAO feels that its collective responsibility of all the stake holders in fighting such cyber criminals and making netizens well prepared to protect their money/information/data/reputation /intellectual property etc.

As cyberspace user’s we are the one who should take a first leap by learning about How to use cyberspace securely. We must learn about security guidelines while carrying out online activities, chatting with the unknown people, carrying out baking/shopping transactions, uploading or sharing photographs/information etc. We should also learn about how to protect our sensitive personal information and how to protect data residing in our gadgets.

Similar responsibility lies on Banks, Telecom Service Providers, Corporate, NGO’s and other institutes which are devoted / mandated under CSR to take up certain noble cause which could be of creating CYBER AWARENESS. They can achieve this by organizing Cyber Awareness Quiz, Poster competition, Guest Lectures, Debates, Display Cyber awareness hoardings etc.

Cyber Awareness Organisation is relentlessly working for creating awareness about CYBERSPACE/SOCIAL MEDIA/EXCESSIVE DEPENDANCE ON FREEWARES AND MOBILES ETC. For this purpose CAO has initiated CYBER CRIME HELPLINE with help of Big-V Telecom (P) Ltd. The victims may dial 09225109900 and register their complaints which will be taken up by CAO.

Some thoughts on Online Shopping

Many online shopping portals have made their online presence recently .The recent trend suggests that this phenomenon is going to stay for long for various inherent advantages available for consumers. Let’s see what those advantages are.

1)    People can identify the products sitting comfortably in cozy and homely atmosphere of their home or office and all family members can enjoy shopping.

2)    They can compare various features of the products at one location and without interference of anyone, who can influence their selection.

3)    They can clarify their doubts and fully satisfy themselves prior to finalizing the products.

4)    They can see all available colors/designs and make final selection.

5)    They can see various ratings like customer satisfaction, delivery time etc. about the intended purchasing and then finalize the same.

6)    They can even see the products catalogue which they will never be shown in any shop either due to various reasons including financial or social status etc.

7)    They get huge discounts on various products due to elimination of Distributor/Dealer network and many promotional ongoing schemes which rarely reach to the end users etc.

8)    Many products provide for free trial for specified time period without any additional charges in case consumer wants to return the product.

9)    Free home delivery is available and payment on delivery facility is also available on many products.

10) It saves travelling time/parking tensions/rush at busy hours and long wait for being served by salesman etc.

11) They may even get 15-20 days payment credit by some shopping portals and also some reward points etc.

So when such huge advantages are available for consumers why someone will complain about the very existence of online portals? But there is darker side of these online shopping portals also which needs to be brought to notice of the consumers.

Though advantages of online shopping portals can not be undermined there are some inherent risks and which needs to be highlighted.

1)    How many people can make a choice about which is safe portal and which is unsafe?

2)    How many people know that there are many fraudulent online shopping portals in existence?

3)    How many of us believe that there are legal provisions for regularizing the online shopping portals?

4)    How many of us know that many web portals are selling stolen or counterfeit goods?

5)    How many of us are sure about the quality or genuineness about the products sold through online portals?

6)    How many of us know what remedy is available if something goes wrong while carrying out online shopping?

7)    How many of us are sure that details provided by us to the online shopping portals will not be misused? And what if the details contain your sensitive personal information including your banking details etc.?

8)    Are there any provisions for mentioning names and physical addresses of administrator, compliance or grievance officer etc. on online shopping portals?

9)    When consumers are cheated by such on line transactions is there any mechanism in place or any remedial measures available to consumers?

10) How to find out authenticity and reliability of any website?

11) What precautions should be taken for safe online payment transfer?

12) Do police entertain complaints against online shopping frauds or cite inability to act due to geographical constraints?

13) Like Consumer protection act do consumers have any grievance redressal mechanism available in case of online shopping complaint?

14) Does online shopping portals are subject to any taxes from Government?

15) Does there is scope for Tax evasion by this medium?

16) Does there is prohibition of sale of banned items through online portals in specific geography? Can it be effectively monitored?

17) Does Government have any monitoring mechanism to control or regulate Online shopping mechanism?

18) Does online portals violate of principles of Fundamental Rights of Equality as they don’t have any regulatory mechanism whereas offline Retailers/Traders have been subjected to various regulatory mechanisms like shop and establishment act, registration of firms etc.

19) Does online shopping portals are a posing a big threat to various self employed Distributors/Dealers/Retailers/Resellers/Vendors/Hawkers and many more sections of the society? Will this lead to serious unemployment problem in India?

20) Do we face risk of Data invasion while shopping through online portals? Does our digital footprints are saved and processed for our own exploitation?

21) What rights these shopping portals have to invade into someone’s Privacy?

More and more such questions needs to be answered.

The online shopping portals are new welcome phenomenon but it should be monitored and controlled so as to protect rights of consumers. For offline stores there are various legal provisions but for online shopping portals there are none and these amounts to discrimination which needs serious debate and discussions.

My sincere urge is for healthy discussion about the existing provisions for hosting and conducting business through online shopping portals and in case of non availability of such rules and regulations how to frame the necessary regulations at the earliest in the interest of protection of various consumers from such few fraudulent online shopping portals.