Cyber law jurisprudence is still evolving in India despite the fact that Indian cyber law was enacted almost 15 years back. This is so because Indian Legislature and Executive are not at all comfortable to deal with technology related laws. Techno legal experts have been maintaining that India must establish a techno legal framework to deal with growing cases of cyber crimes and cyber attacks. Nevertheless the position has remained the same and India is still lagging far behind in formulating technology related laws.
Not only Indian Parliament is not capable of enacting good and effective techno legal laws but it is also very keen in abdicating its duties to Executive. As a result successive Indian governments have used subordinate/delegated legislations to impose draconian and civil liberties violating laws upon Indians. Obviously, the Supreme Court of India is not pleased to either such draconian laws or to the approach adopted by Indian Executive and Parliament.
Recently Supreme Court held that Aadhaar is not compulsory to avail government services in India. Now Supreme Court has struck down Section 66A of Information Technology Act, 2000 (IT Act 2000) as unconstitutional. The case of Shreya Singhal v. Union of India (24th March 2015), Writ Petition (Criminal) No.167 Of 2012 (PDF) can be analysed for more details in this regard.
However, the judgment is not just about Section 66A but many other sections and rules as well. For instance, Section 79 of IT Act 2000 and Rule 3 of Information Technology (Intermediaries Guidelines) Rules, 2011 have also been analysed by Supreme Court. As the constitutionality of these provisions was challenged, Supreme Court had limited choices. Supreme Court preferred to narrow down these provisions to keep them operational and constitutional. But it has not been realised at what cost this has been done.
According to Praveen Dalal, managing partner of ICT law firm Perry4Law, Supreme Court’s Judgment on Section 66A is a big blow for Cyber Law Due Diligence in India and reading down of Section 79(3) (b) and Rule 3(4) by Supreme Court in the present manner is “Counter Productive” in long run. He has also suggested that Modi Government must urgently bring suitable Amendments in the IT Act 2000 to tackle growing Cyber Threats and Cyber Crimes in India.
Indian cyber law has not been appropriate since its inception. Too much stress is given to suppress civil liberties and enhance e-surveillance. However, it has now reached a stage where immediate steps must be taken to protect civil liberties in cyberspace on the one hand and projects like Digital India on the other. This is also the high time to leave politics and do positive things for Indian masses.
Ed Note: This is the updated version of the article titled “Supreme Court Erred In Reading Down Section 79(3)(b) And Rule 3(4): Praveen Dalal” published by my friend Priyanka Sharma. For reasons unknown it failed to appear at Google News. Hence this updated article has been posted for our readers.