The constitutional vires of Section 66A of the Information Technology Act, 2008 is under judicial scrutiny with two separate petitions filed before the Madras High Court and the Allahabad High Court.
I am inconvenienced and annoyed daily several times by hundreds of promotional emails and SMSs. Can a lawyer help me to take action against all these culprits under the provisions of IT Act which seem to be easier in operation? Then, what about the inconvenience and annoyance being caused to me by printed materials being delivered to me daily through postage/courier/insertion of leaflets in newspapers?
The entire IT ACT requires an immediate judicial and common sensical review! It is very badly drafted law. You can notice from all insances that not only mighty misuse these provisions against common people but mostly big employers misuse the provisions to harrass their employees. In fact, its operation should be suspended until the review and redrafting is complete.
I totally disagree to some of the points that you've put forward. Firstly, the challenge lies to the fact that the provision curtails the right to freedom of speech and expression as provided by article 19(1)(a) of the Indian Constitution and the provision can be constitutionally challenged as far as the restrictions put on the said right are unreasonable in nature (as not covered under the ambit of article 19(2) of the Indian Constitution). If you look at the statute carefully, it provides the authorities with wide powers and the exercise of which is left at their own discretion. Its application not in many cases has not been objective. There have been instances where such powers have been misused. It is essential that the laws which are made to protect fundamental freedoms, should not be restricted to the extent that the right itself extinguishes under the weight of the restrictions so put to curtail the right. The restrictions so put have to be proportional to achieve the legitimate aims of the act which from the preamble seems to be totally different from what its being used for.
The provisions in question being subjugated to challenge their constitutionality require a thoughtful consideration rather than have to be judged from the corner of activist's eye. It is common sense proposition of criminal jurisprudence that provision being a penal offence will be meted out strict interpretation by the court of justice and all the requisites of offence will have to be established by prosecution. However the instances which have provoked the petitioners to move the higher courts to challenge the vires of impugned provisions are short sited by the very nature of them. One in which a person was nabbed for circulating the alleged enmeshing of wealth by Finance Minister's son is more irresponsible in nature than the law expects a kind of conduct from a reasonable man. Another instance in which plastic activist due have moved the court has more to do with the frenzied cop rather than any infirmities in law itself. It has to be appreciated that in changing vocabulary and regime of public and personal communication, internet as a tool is going to surpass all other means of communication. Its vulnerability as an invisible toll potentially potent enough to cause annoyance or inconvenience or deceive or mislead can not be ignored and require penal provisions of standard accepted by developed jurisprudence.
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