MRS. & MR. JOHN NEED NOT WAIT

(By R.T. Pradeep, Advocate, Ernakulam)

The decision in John Roji1 is under scurrilous attack in the article penned under the caption "Mrs. & Mr. John must wait”2 on the premise that the mandamus issued by the High Court is in direct conflict with the statutory provision.

The factual matrix of the case is that a newly married couple was in dire need of a marriage certificate from the marriage officer for the purpose of visa as the marriage certificate issued by the church was not acceptable by the consulate. On a literal construction of S.16 of the Special Marriage Act (hereinafter referred to as the Act), the impediment for the marriage officer to issue the marriage certificate was due to the non-expiry of 30 days allowed to the public from the date of notice to make objections if any and thereafter he was empowered to issue the certificate on his satisfaction of the conditions mentioned under S. 15 of the Act. The parties will be put to irreparable hardship if they have to wait for the certificate till the expiry of the period of notice. So they approached to High Court for a direction to issue the certificate forthwith by dispensing with the statutory period of notice.

The High Court was impelled by the fact that the marriage sought to be registered was a Christian Marriage and having taken place in a church, the same would have been done only after a proper scrutiny. It was directed that the marriage officer shall issue the certificate after obtaining sworn statements from the petitioners. The marriage officer shall wait for objections till the statutory period of notice is over. If any valid objections are made, he may recall the order. On such order being issued, petitioners are directed to surrender the original certificate. The decision was under attack on the ground that it is in violation of the procedure contemplated for registration of marriage under S. 16 of the Act, which stipulates public notice of 30 days, by the marriage officer before issuance of certificate.

Of course, it goes beyond doubt that no mandamus will lie if it compels an authority to actcontrary to law. But whether the said direction in John Roji would ask the marriage officer to. act against what is said in S.16 is a question, which depends on its construction. According toCraig, whether or not a mandamus can be issued for the enforcement of a duty depends on the construction of the statute concerned3. Therefore, what is to be considered is the construction of S. 16 of the Act before examining the decision in John Roji.

The Supreme Court in Nasimddin v. Sitaram Aggarwal4 held: "It is settled position in law that if an act is performed by a private person within a specified time, the same would ordinarily be mandatory. But when a public functionary is required to perform a public function within a time frame, the same will be held to be directory, unless the consequences thereof are specified".

According to Sutherland's Statutory Construction, while a statutory direction to a private individual should generally be considered as mandatory, the rule is just the opposite of that with respect to public officers5. Further the question as to whether a mandatory or directory construction should be given to a statutory provision may be determined by the expression in the statute itself and the result that shall follow on non-compliance with the provision6. Maxwell on Interpretation also affirms the said view that if the non-compliance of a provision does not involve a consequence, the said provision can be treated as directory7.

The Act contemplates that public notice of 30 days is to be given by the parties for the purpose of solemnization of marriage under S.5 and a public notice of 30 days is to be given by the marriage officer for registration of marriage under S. 16 of the Act. Here it is pertinent to note that while penal consequences are prescribed if a marriage is solemnized before the expiry of the statutory period under S.58, no such penal consequences are contemplated for the violation of procedure for registration of marriage under S. 16 of the Act. So, by all recognized rules of construction it can be safely concluded that the requirement of issuance of certificate after the expiry of the 30 days period stipulated under S. 16 of the Act is only directory in nature.

It is well known that the use of the word "shall" would not by itself make a provision of the Act mandatory9. The rules of interpretation permit the interpretation of the expression "shall" as "may" and the expression "shall" needs to be construed as "may" if the context so requires10. For this the legislator's wisdom assume importance. The Apex Court has held: "the legislatures do not always deal with specific controversies which the Court decide. They incorporate general purposes behind the statutory words and it is the Court to decide specific cases. If a given case is well within the general purpose of the legislature but not within the literal meaning of the statute then the Court must strike the balance11. Apparently the predominant intention of the legislature in S.16 of the Act is to see whether there are any sustainable and valid objections to the issuance of certificate and to make available a period of 30 days for preferringsuch objections. Thus the use of the expression "shall" in S.16 of the Act can be construed only in this context.

Importantly, the direction issued by the High Court in John Roji doesn't dispense with the requirement of completing the statutory period of notice. What the Court has directed was only the issuance of the marriage certificate anterior to the expiry of period of notice. As mentioned earlier, since no legal consequences are provided under the Act to the issuance of the said certificate prior to the completion of statutory period of notice, the same can only be treated as directory in nature. Thus the direction of the High Court in John Roji doesn't compel the marriage officer to act against the provision in S.16.

One apprehension entertained in respect of the decision in John Roji is that if the marriage officer recalls a marriage certificate after its issuance it would amount to usurping the power of the District Court under Ss.24 (2) and 31 of the Act. But S.24(2) deals with the declaration of a marriage registered under the Act as null and yoid and it has no application to recalling a certificate issued under the Act. It is pertinent to note that the High Court cautiously directed the parties to surrender the marriage certificate in the event of any valid objection during the currency of notice. Here it assumes importance that the marriage officer is competent under S. 16 of the Act to reject an application for registration of marriage, which is an appealable order under S. 17 of the Act. So the intent of the direction in John Roji to recall the issued certificate is only to facilitate the rejection of application on a valid objection raised which is within the power of marriage officer under S. 16 of the Act. This, however, doesn' t amount to a declaration under S.24(l) of the Act and no question of usurping the jurisdiction of the District Court under S.31 arises thereby.

Another apprehension raised about the decision in John Roji is that the Consulate may be reluctant to accept certificates issued before the 30 days period. In fact, the Emigration authorities are reluctant to accept the marriage certificates issued by churches not because they do not believe in their flawlessnesss, but due to the reason that such certificates lack statutory backing. It is a deplorable fact that though church marriages are more authentic, unfortunately due to lack of statutory recognition the certificates issued by churches cannot be legally used before authorities. But once a marriage certificate is issued under S. 16 of the Act on a judicial direction, can the Emigration authorities refuse to accept that certificate? So long as Art. 141 remains in the Constitution, Judge declared law is as good as statute law and directions issued by the superior courts of record will supplement statutory law. Hence it is naive to think that the certificate issued under a statute on the basis of a judicial direction will be discarded. On this account the apprehension is totally misplaced.

Equity and mandamus are not strange bedfellows. According to Wade, equity considerations are not beyond the realm of writ of mandamus especially when it is considered as the counter part of injunction, which is an equitable remedy and within the field of public laws the scope of mandamus is still wide and the Court may use it freely to prevent breach of injustice12. The classic exposition on the writ of mandamus is the one given by the legendary Lord Mansfield, who said,

"It was introduced to prevent disorder from the failure of justice, and defect of police. Therefore, it ought to be used upon all occasions where the law has established no specific remedy and where in justice and good Government there ought to be one"13.

On the writ of mandamus, Justice Darling said in R. v. Hartley Revising Barrister as follows:-

"Instead of being astute to discover reasons for non-applying this great constitutional remedy for error and mis-govemment, we think our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable”14.

The greatest contribution of justice to mankind is the invention of equity. It goes without saying that equity as a body of principles was evolved to mitigate the severity of the rigid application of common law15. Developed systems of law have often been assisted by the introduction of a discretionary power to do justice in particular cases where the strict rules of law cause hardship16. Legends like Lord Denning, Justice Cardozo and Justice Holmes have created new rights in situations where in fact no rights were guaranteed by statutes, by evolving new principles like legitimate expectation, doctrine of proportionality etc.

Lord Scarman tells us,

"the mark of the great judge from Coke through Mansfield to our day has been the capacity and the will to search out principle to discard the detail appropriate (perhaps) to earlier times and to apply principle in such a way as to satisfy the needs of his own time. If Judge made law is to survive as a living and relevant body of law, we must make the effort, however inadequately, o follow the lead of the great masters of the judicial art"17.

The decisions of the Supreme Court wriggling out from the rigour of statutory prescription to alleviate the hardship of parties on equity are also legion. Chief Justice Pattiaik held: "would it all be equitable to deny the relief to appellant by giving a literal interpretation to the incentive schemes of the Government as adopted by the Board? Our answer to this question must be in the negative"18.

Justice Arjit Pasayat said: "The crucial question is whether there can be any direction for interest on rental compensation once it is held that the same has to be paid within the time frame, notwithstanding the fact that there is no statutory obligation. Though the inevitable conclusion is that the High Court is not justified in directing grant of interest on the logic of various provisions contained in the Act, yet, there is an element of equity in favour of the land owners"19.

Justice Oliver Wendell Holmes opinioned,

"The life of law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which Judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed”20.

Julius Stone has told us that strict adherence to the statutory prescription must either mean "merely trying to hold the living law within a metrics which is quiet arbitrary in relation to the contents or that they are hypo critically pretending to do so”21.

According to Francois Geny, the noted legal philosopher, the process imposed upon the Judge in finding the law is very analogous to that incumbent in the legislator himself 22. And Justice Cardozo has said that the duty of the Judge is to declare law in accordance with reason and justice and the 'mores' of the day23. "Justice, like mercy, is what might be called an irreducible concept; it cannot be helpfully defined further" 24. The famous American Lawyer Clarence Darrow once said: "If there is such a thing as justice it could only be administered by one who knew the inmost thoughts of the man to whom he was meting it" 25. Very often it goes unnoticed what is scripted behind the Honourable Judges sitting in Court I of the Honourable High Court of Kerala, "fiat justia, ruat coelum " which means "let justice be done though the heaven falls''.

At times I feel that we are returning to the dark periods of rigid application of literal law. But decisions like John Roji are silver linings in those dark clouds and offer new hope for an equitable future to thousands of persons like Mrs. & Mr. John. From the experience of the above observations, one must appreciate that the endeavour in John Roji was to extricate from the rigour of the literal interpretation of Section 16 of the Act in consonance with the 'mores' of the day, thereby mitigating hardship and giving solace to the non-resident Indians who are home coming for solemnization of marriage on a pre-determined short duration leave with no scope and chance for extension of leave. Here it is apt to remember the decision of the Kerala High Court in Mary Sonia Zachariah26 which gave solace to thousands of Christian women by mitigating their hardship by judicially legislating on the grounds of divorce in Section 10 of the Indian Divorce Act against its specific literal interpretation. So, long live justice and equity.

___________________________________________________________________

Foot Note:

1. John Roji v. Marriage Officer [2004 (1) KLT687]

2. 2004 (2) KLTJournal22.

3. See PP Craig, Administrative Law (3^rd Edn., 2002 Reprint), p. 527.

4. (2003) 2SCC576,589.

5. Sutherland's Statutory Construction (3^rd Edn.), Vol. 3, p. 107.

6. Ibid.

7. Maxwell on the Interpretation of Statutes (12th Edn.), pp. 318-319.

8. See Section 46 of the Act.

9. Maxwell, supra n 7at 319.

10. See NS Bindras's Interpretation of Statutes (8^th Edn.), pp. 1002-1005.

11. Union of India v. Filip Tiago De Gama, AIR 1990 SC 981,985.

12. See H.W.R. Wade & C.F. Forsyth, Administrative Law (8th Edn.), pp. 605-607.

13. R.V. Barker (1762) 3 BURR 1265 at 1267.

14. [1912] 3 KB 518,529.

15. Hanbury & Maudsley, Modern Equity (13th Edn.), p. 1.

16. Ibid.

17. Gillickw. West Norfolk & Wisbech Area Health Authority, [1985] 3 ALL ER 402,419.

18. Hiiech Electro Thermics & Hydro Power Ltd. v. State of Kerala & Ors. (2003) 2 SCC 720.

19. State of Maharashtra & Ors. v. Maimurma Banu & Ors. (2003) 7 SCC 452.

20. Holmes, The Common Law (1881),p.l,

21. Julius Stone, Legal System & Lawyer's Reasoning (1968), p. 232.

22. Francois Geny, Modern Legal Philosophy Series (2^nd Edn.), Vol. 2, p. 77.

23. See B .N. Cardozo, The Nature of Judicial Process (4^th Indian Reprint 2002), pp. 31,72,106.

24. Brian Harris, The Literature of the Law (1998), p. 316.

25. See Arthur Weinberg, Attorney for the Damred (1957), p. 42.

26. Mary Sonia Zachariah v. Union of India, 1995 (1) KLT 644.

The Tribute of Time-About Kum.

Justice Lekshmikutty (Retd.)

(By Medayil R. Prabhakaran, Advocate)

Occasion saddled me, to build the stately rime:

The gratulation of Muses, to their delegated fan;

Retreats! in the tide of time that foregone,

Who behold justice apt to Nature's level;

Perceived the case of life, to serve in accord,

Sang of life and love melodiously;

And glorified the scene of excellence.

Let the blossoms of April be a carpet to thy exit;

And the season's odour be spread in the auspicious breeze.

Long live Thee! May peace be with Thee!

About Costs

(By V. Sivaswamy, Advocate, Ernakulam)

I am provoked, or to put it more correctly, inspired to write these lines by what Sri. T.P. Kelu Nambiar has written in 2002 (3) KLT Journal Page 64. The law relating to costs is embodied in S. 35 of the Code of Civil Procedure which reads as follows:

(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by who or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

(2) Where the Court directs that any costs shall not follow the event, the court shall state its reasons in writing.

Resort to court for adjudication of disputes between the rival parties is an expensive affair. As Sri. Nambiar has correctly pointed out, costs or expenses are awarded by the court to the party who succeeds in the cause to be paid by the party who loses the game. It is a sound rule as laid down in S.35(2) CPC, that costs should follow the event, unless for some exceptional reasons, the court finds it necessary to deviate from this rule. If such deviation is to be made, the Code insists that reasons should be given to justify such deviation.

The present trend however seems to be to refrain from awarding any costs to the successful party. The various pages of the law reports give innumerable instances where the appeal or the petition is dismissed with the further observation "no costs" or "under the circumstances, without any order as to costs."

The frugal of such cryptic words can hardly satisfy the statutory requirement of S.35(2) of the Code. I am however inclined to think that Judges may feel they would be unpopular if the party who loses is directed to pay the costs of the party who wins. Refraining from directing such payment of costs can of course afford immense consolation to the counsel who loses, especially when he is a fresher in the profession.

Sri. Nambiar appears to take serious exception to the judgment of the Division Bench in 0,P. 18338/02 where both the petitioner and 4th respondent were directed to make payments to the Legal Services Authority which was not a party to the proceeding. Of course prima facie it appears to be a strange direction in that the parties on opposite sides have been directed to pay costs to an authority which is not a party to the proceeding. Neither the facts of the case nor the ultimate decision of the Court are available in the article of Sri. Nambiar. I, for one, am ready to presume circumstances justifying the award of such direction. If the petition has been filed by the petitioner only as a puppet or tool of the 4th respondent, a direction given to both of them to pay costs would be reasonable, if the petition was found to be without any merits and was liable to be dismissed.

Authorities are not lacking to show that a person who is not a party to a proceeding before the court can be called upon by the Court to pay the costs of the party who wins. Emphasis in this connection is made on the use of words "by whom" instead of "by which party" in S.35(1) CPC. Thus a legal practitioner appearing for the losing party has in some cases been directed to pay the costs of the party who wins. Initiation of unjustifiable legal proceeding by the counsel would be an instance in point. In Smt. Vidya Verma v. Dr. Shiv Narayan Verma (AIR 1956 SC 108), out Supreme Court had occasion to direct the advocate who filed a petition for habeas corpus under Art. 32of the Constitution to pay the costs of the opposite party and also the costs of the learned Attorney-General who appeared before the Court at its direction to oppose the motion. That of course was a case where the counsel initiated the proceeding as the next friend of a lady against her father and uncle without consulting her or her husband and that too after he had lost the case both before the High Court and the Subordinate Criminal Court. The Supreme Court pointed out to the counsel that the petition under Art. 32 for infringement of the alleged fundamental right of the petitioner under Art. 21 may not be maintainable so long as neither the State nor any authority of the State has been impleaded as a respondent in the proceeding. The counsel insisted to be heard on merits and only ultimately when he came to know that the case will be decided against him by the Court, that he chose to withdraw the petition. Permission to withdraw was refused by the Supreme Court and the Counsel was directed to show cause why he should not be made to pay the costs. Only after hearing him upon this point the Court directed him to pay the costs of the opposite party and the learned Attorney-General.

The question that is mooted now is whether a person or an authority who is not a party to the proceeding can be directed to be paid costs by any party to the proceeding before the Court. This exactly appears to be what has happened in O.P. 18338 of 2002 mentioned above. Two of the parties to the proceeding have been directed by the High Court, in this case to make payment to the Legal Services Authority which was not a party to the proceeding. In the words of Sri. Nambiar, this is a case of not cross costs, but one of multiple costs in favour of a non-party. The Court further proceeded to grant liberty to the parties directed to pay the costs, to proceed against their respective counsel for recovering such costs in appropriate proceedings. It is not clear what prompted the Court to grant such liberty nor is it clear from the Article of Sri. Nambiar whether the counsel concerned were given an opportunity to show cause while such liberty should not be granted to their respective parties. The grant of such liberty to the parties appears to have been however of no significance whatsoever, when on the review application, the Court has made it clear that no final pronouncement on the liability of the Counsel has been made and that such liability has to be adjudicated on its merits in the proceedings, if any, initiated against them by their clients. If that be so, why at all there was any such mention of "grant of liberty" to the parties to initiate such proceedings against their counsel in the original judgment pronounced by the Court. The apparent consolation to the parties, given as per the judgment sought to be reviewed, ultimately seems to have been displaced by a consolation afforded to their counsel as per the order on the motion for review.

Going by the traditional view, costs ordered by the Court in any proceeding is only compensation payable to the party who wins for the expenses incurred by him in prosecuting or defending the proceeding, by the party who loses. According to this view, the direction to pay costs to any person or authority who is not a party to the proceeding will be absolutely unwarranted.

Of course S.35 CPC does not insist in so many words that only a party to the proceeding can be directed to be paid costs. The concept of State and State functions has undergone a radical change since 1908, when the present CPC was brought into force. We have wandered far, far, from the Austinian theory to the theory of the modern welfare State. The Legal Services Authority is an authority constituted under the Legal Services Act and the object of the Statute seems to be to afford free legal aid to people who can ill afford to bear the costs of the litigative process. The Rules in O.33 CPC have been found to be hardly sufficient or effective to achieve the ideal of bringing justice to the doors of the poor. The members of judiciary, at all levels, starting from the District level to the National level, are very much associated with the administration of this Statute and the functioning of the Legal Services Authority. This authority is charged to a considerable extent with the duty of implementing this statute in its letter and spirit by organising adalats and taking other measures for settlement of disputes outside the Court room. All this endeavour requires much funds and resources. Their lordships Justice Potti and Justice Khalid directed the defaulting parties, in 1980, in the case referred to by Sri. Nambiar, to pay costs to the State. There was no Legal Services Authority at that time and the learned Judges probably thought that the State which bears the burden of a huge expenditure over the administration of justice should be the beneficiary of their direction regarding costs.

There have been cases where executive authorities functioning under the State have ventured to pass more or less similar orders benefiting the State. The Regional Transport Officer directs that the permit granted to an operator will be issued to him, not merely on the production of the current records of the vehicle, but further on his subscribing to a minimum number of National Saving Certificates. Recently we read in the papers about Village Officers insisting that for the issue of any certificates like Nativity Certificate or Legal Heirship Certificate or even for the mutation of names in revenue records, the concerned party should take a minimum number of Lottery tickets connected with the contribution to the Chief Minister's Relief Fund. Our Courts exercising jurisdiction under Art.226 of the Constitution may of course frown upon such condition imposed by the executive authorities for the issue of permit or a certificate like those mentioned above.

Funds like the Chief Minister's Relief Fund or the Prime Minister's Relief Fund are constituted with the noble object of enabling the State to afford relief to victims affected by national disasters such as draught, famine, floods, earthquake and the like. If the Judges also come to be associated with the collection of such funds, as they are at present associated with the functioning of the Legal Services Authority, one need not be surprised, if the party or even his counsel is directed to pay by way of costs some contribution to such funds, if it appears to the Judge that his case was vexatious or frivolous. Such orders passed by the Court like orders passed by Executive Officers cannot evidently be challenged before any court under Art.226 or any other provision. The Supreme Court has in similar situations directed payment of costs to a non-party like the Legal Services Authority. The Supreme Court can justify its action under Art.142 of the Constitution, the power under which cannot of course be claimed by any other Court.

Tail piece:- The law is what the Judges declare to be the law-vide Art. 141 of the Constitution.

The Danger From Within

(By K. Ramakumar, Advocate)

Whether one likes it or not, Smt. Indira Gandhi, was one of the most powerful Prime Ministers of the World and was viewed with veneration as well as awe in the largest democracy of the world. An American Ambassador once described her as "the only man in the Indian Cabinet clad in Saree." She was however made answerable to the people of India. The people punished her severely in the elections that followed the Emergency and threw her out of office, even inflicting upon her a personal defeat as well. The so-called illiterate dumb-driven cattle like voters of the northern India rose as one man and registered their strong disapproval of the high handed Emergency by the use of an anti-clock wise swastik rubber stamp given to them at the Polling Stations. That was the moment of triumph, for the little man, who does not matter at all, in a democracy otherwise.

In sharp contrast see how the people of India, watched helplessly to the shaking of another predominant pillar of democracy capitulating and caving in during the emergency. Chief Justice Chandrachud, seven years head of the judicial family openly confessed that he wrote ADM Jabalpur under fear. In other words, he conceded that he breached the solemn oath that he had taken at the time of his appointment that he will administer Justice "without fear or favour". The common people of India, could do nothing but heave sighs of sorrow. So was the situation a la Ramaswamy and Ajith Sen Gupta of the Calcutta High Court, who was arrested after demitting his office for alleged links with smugglers and dons of the underworld. Why? Only because an enactment called the Contempt of Court Act exists immunising as many as six hundred and fourty one citizens among the Hundred crore people of the country. Not even the Rashtrapathi or Pradhan Manthri enjoy such absolute immunity from criticism. Ironically, the Act protects the two Gills of the Public High Court, while it was used even against the Gandhi (yes, the Mahatma), the Maulana and a host of other popular leaders including E.M.S. Sounds stupid? Is n't it? That too in a country where the lowliest citizen, a washerman could criticise the Raja and the Raja pathni and the Raja responding with an 'Agnipariksha'. A country of Upanishads proclaiming that "Law is the King of Kings far more powerful than they". The constant use of the contempt power even for trivialities and the umbrella of its protection claimed even to shield demonstrable deviance from probity has naturally raised a demand at high levels including from the Attorney General of India and the Law Minister that the same needs mending or even ending.

In a democracy deriving power from its supreme document, the Constitution and from "we, the people of India", (what a magnificent concept) nobody wielding power over another, can be heard to say "I shall not be criticised, whatever may be my fault."

The recent events in the judiciary, undoubtedly have shaken the confidence of the people in that fine institution moulded and left as the legacy of the Britishers. Chief Justice Chandrachud opens one of his judgments by saying "the biggest threat to judiciary comes from within". It is the Ahamedys, the Anands, the Begs, the Gills, the Rays and Ramaswamys, that have damaged the judiciary more than thousands of Gokhales. No citizen wants a system in which 'cases of probation ends up as cases of pension'. Judicial go-slow, is as much permissible as Industrial go-slow. Incapacity or indifference or both in delivering judgments in time really, amounts to an absolute threat to Justicing system, erodes its image and therefore is contempt. Justice should continue to be according to law, and not "Law according to Justices". Are the members of the profession to which Gandhi, Lincoln and Lenin, belonged listening?

Is  Section 66A of I.T. Act A Badly Written Law

(By Faizal Ahammed & Juby K. Mariam, Advocates, Mavelikkara)

 I.T. Act of 2000 is one which is enacted for the purpose of making a field inside the purview of law, the field which was till that time outside the scope of law, it was to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, this act has also made amendments to the Indian Penal Code 1860, Indian Evidence Act 1872, The Bankers Books of Evidence Act 1891, and the Reserve Bank of India Act, 1934 in order to further the same objective. It was the period in which most of the day to day activities were slowly becoming part of cyber world. The same transformation from leaf, animal hide  or stone to paper, happened in 20th century, ie from paper to magnetic disc. The Act essentially deals with,

a.Legal Recognition of Electronic Documents

b.Legal Recognition of Digital Signatures

c.Offenses and Contraventions

d. Justice Dispensation Systems for cyber crimes.

Being the first legislation on technology, some sections of the Act  was considered as draconian and some too diluted and lenient.  Even though this piece of legislation has proved to be a big leap in the field of cyber crimes, there still was a need for further changes which can improve its efficacy.This act has defined various offences and also has laid down certain penalties as well. This act in a way has characterised the cyber crimes, which were earlier unknown to general public in India. Before the amendment in 2008  there were only a smaller area which deals with offences.ie; tampering with computer documents, hacking etc. Of course it  was only a small percentage considering the large area which was yet to come into the area of cyber world. It happened so, that more and more areas became computerised. Age old crimes gradually mutate into the one which is done on computer. Few  in the modern age will be using paper or poster for doing defamation, though much easier and efficient way is opened through computer based social networks. A rapid increase in the use of computer and internet has given rise to new forms of crimes like publishing sexually explicit materials in electronic form, video voyeurism and breach of confidentiality and leakage of data by intermediary, e-commerce frauds like personation (commonly known as Phishing), identity theft and offensive messages through communication services. So, penal provisions are required to be included in the Information Technology Act, the Indian Penal code, the Indian Evidence Act and the Code of Criminal Procedure to prevent such crimes.” Thus the need for an amendment  a detailed one was felt for the I.T. Act. Major industry bodies were consulted and advisory groups were formed to go into the perceived lacunae in the I.T. Act and comparing it with similar legislations in other nations and to suggest recommendations. Such recommendations were analysed and subsequently taken up as a comprehensive Amendment Act and after considerable administrative procedures, the consolidated amendment called the Information Technology Amendment Act, 2008 was placed in the Parliament. The 2008 Amendment Act was passed in an eventful Parliamentary session on 23 December 2008 (with no discussion in the House). The amendment was widely critisized on the ground of lack of legal and procedural safeguards to prevent violation of civil liberties of Indians. The Act has provided Indian Government with the power of surveillance, monitoring and blocking data traffic. The new powers under the amendment act tend to give Indian Government a texture and colour of being a surveillance state. The new I.T.Act provides good requirements from a national security perspective, information access misuse by unscrupulous parties, may prove to be dangerous for enterprises (as well as individuals). 

An important change that has been brought forth by the Amendment Act is that the new amendment has replaced Section 43 with Section 66. Under Section 66 the Word “hacking” has been removed, but instead hacking still remains an offence by the name of “data theft” in this section. This section has further been widened in the form of Sections 66A to 66F. Among these it is Section 66A which was widely criticised due to its draconian nature. The section reads as follows:

66 A:   Punishment for sending offensive messages through communication service, etc.

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  shall be punishable with imprisonment for a term which may extend to two 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.

In short Section 66A deals with the sending of offensive messages through communication service, and causing annoyance to any electronic communication, and also includes the offence of misleading the recipient of the origin of such messages.

For getting clarity it will be better to examine what is the impact on civil liberty of the citizens through the amendment. Regarding Section 66A which punishes persons for sending offensive messages is overly broad. Section 66A has been challenged on the ground that it casts the net very wide - “all information” that is disseminated over the internet is included within its reach. The fact that some information is “grossly offensive” or that it causes “annoyance” or “inconvenience” (which is subjective) while being known to be false cannot be a reason for curbing the freedom of speech unless it is directly related to decency or morality, public order, or defamation (or any of the four other grounds listed in Art. 19(2)). None of the aforesaid terms in Section 66A are even attempted to be defined and cannot be defined, the result being that innocent persons are roped in as well as those who are not.  It is clear that Section 66A is intended to punish any person who uses the internet to disseminate any information that falls within the sub-clauses of Section 66A. The Section does not require that such message should have a clear tendency to disrupt public order. According to the section it is not necessary that the message must have any potential which could disturb the community at large. The nexus between the message and action that may be taken based on the message is conspicuously absent - there is no ingredient in this offence of inciting anybody to do anything which a reasonable man would then say would have the tendency of being an immediate threat to public safety or tranquility. On all these counts, it is clear that the Section has no proximate relationship to public order.  Section 66A is so vague that neither would an accused person be put on notice as to what exactly is the offence which has been committed nor would the authorities administering the Section be clear as to on which side of a clearly drawn line a particular communication will fall. It can be seen that some of the restrictions on freedom,  through the I.T. Act might not be intended by the Legislature, but finaly resulted in the same. For instance Section 66A(c) which is for preventing phishing and spam, due to the terms used in the section, unnecessarily curtail the liberty in using various web services, accordingly it  unintentionally prevents the organisations from using proxy servers, it prevents you from the use of anonymus remailers( a free computer service that privatizes your e-mail) it prevents the using of tunnelling(which allows for data to be sent securely). The phrasing of above said provision gives it a meaning which is unintended by the Legislature. The provision is as follows : “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 “. Here it can be seen that for making  the provision to be presise and narrow so as to avoid the above said dilemma it must be ‘AND’ instead of ‘OR’.

In the recent  judgement of  Shreya Singhal  v  U.O.I  other provisions under Section 66 are discussed to show the contrast with  Section 66A, it will help to see the pequliarity of 66A which makes the section vague and broad, accordingly in Section 66.66B and 66C the terms used are “dishonestly or fraudulently” both defined in  I.P.C., in Section 66D it is “who ever cheats by personating” Section 66F again is a narrowly drawn section which inflicts punishment which may extend to imprisonment for life for persons who threaten the unity, integrity, security or sovereignty of India. Sections 67 to 67B deal with punishment for offences for publishing or transmitting obscene material including depicting children in sexually explicit acts in electronic form.  None of the expressions used in Section 66A are defined. Even “criminal intimidation” is not defined - and the definition clause of the Information Technology Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this Act. Thus all other provisions related to offences, other than Section 66A can be seen to be some what presise and narrow, so as to attract specific acts, where as Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net. Such is the reach of the Section and if it is to withstand the test of constitutionality, the chilling effect on free speech would be total.

Another interesting feature is that a number of the expressions that occur in Section 66A occur in Section 268. It is important to notice the distinction between the Sections 268 and 66A. Whereas, in Section 268 the various expressions used are ingredients for the offence of a public nuisance, these ingredients now become offences in themselves when it comes to Section 66A. Further, under Section 268, the person should be guilty of an act or omission which is illegal in nature - legal acts are not within its net. A further ingredient is that injury, danger or annoyance must be to the public in general. Injury, danger or annoyance are not offences by themselves (as it is in Section 66A) howsoever made and to whomsoever made.

It is better to mention some of the points which are in favour of  above said provision,  accordingly  the main problem with respect to the deletion of this section is that, the door for a handfull of harmful activities are suddenly opened. For instance online defamation has suddenly become no offence, though nothing is there in Section 500 of I.P.C. which deals with defamation in cyber field.  Loose language may have been used in Section 66A to deal with novel methods of disturbing other people’s rights by using the internet as a tool to do so. Mere possibility of abuse of a provision cannot be a ground to declare a provision invalid. Further, vagueness is not a ground to declare a Statute unconstitutional if the Statute is otherwise legislatively competent and non-arbitrary.

But it can be seen that the said mere possibility of misuse happened in a number of cases from 2009 to 2012 and  thus  vagueness  in the said provision makes such an  impact, as of a law which is arbitrary. .  Law should be logical and practical for curbing something which is illogical or not practical and not vice versa.