Archive for May 2013

Supreme Court Guidelines on Arrest u/s 66A of Information Technology Act, 2000.

The internet is an oft praised platform with plenty of opportunities for people to explore options, and more importantly, voice their opinions. It is the platform where anybody who wants to express an opinion about anything may do so- your age, sex, nationality, country of residence, etc, are irrelevant. All you really need is a social networking website, a registered ID, a workable internet connection, and obviously, a mode to carry out the task (be it the old fashioned net cafe desktops, or even just cell phones given technologies recent ascent).

While much of these opinions are awe-inspiring, exhilarating even, certain others may find these opinions offensive- maybe even frightening. Take for instance, the arrest of the two users in Maharashtra who questioned the Bandh following the death of Bal Thackeray, former leader of the Shiv Sena. The state home minister R.R. Patil, at that point, announced a high level probe into the matter. He said the police targeted the girls because of the ambiguity in the Information Technology (IT) Act, 2000.

Of recent events is the highlight of Jaya Vindhyala, a PUCL activist who allegedly posted derogatory comments on her Facebook ‘timeline’ on Chirala legislator, Amanchi Krishna Mohan and the Tamil Nadu Governor, K Rosaiah. Subsequently, Amanchi Mohan filed a complaint and the police invoked provisions of Section 66A of the IT Act, and Section 120 B of the IPC (Criminal Conspiracy). Jaya Vindhyala was arrested on the 12th of May, 2013.

Section 66A of the Information Technology Act deals with punishment for sending offensive messages through communication service, which cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will. For the purpose of this section, “electronic mail message” and “electronic mail” cover messages or information transmitted or received on a computer, computer resource, and communication device and include attachments whether in text, images, audio, video or any other electronic records which may be transmitted via messages. The real question, however, is what constituted electronic messages to be offensive or menacing? Going by the English language, it would depend from person to person; a subjectively skewed outlook with its own threats of ambiguity overriding liberty.

What’s worrisome about the case of Vindhyalaya is that she had been opposing the local legislator on several issues and brought out a fact- finding committees report accusing the legislator of malpractices.

India is a Democratic country which holds dear its constitutionally prescribed Fundamental Rights of which Article 19(1) (a) epitomizes the freedom of speech and expression. Are people no longer permitted to voice their opinions, be it via paper medium, or even the internet? The internet has a far greater reach than most paper medium would- what with users constantly overusing the infamous search engines of Google and Bing and posting whatever thoughts flow through the innards of their brains on public forums, like Facebook and Twitter, sparking off heated debates. Yet, several times, as has been observed, the ambit of this right is required to be contained.

The phraseology of Section 66A of the IT Act is wide and vague; incapable of being judged on objective standards, thus far susceptible to reckless abuse. Earlier in the year, as per the Centre’s January 9th Advisory, “State governments are advised that as regard to arrest of any person in complaint registered under section 66A of the Information Technology Act, the concerned police officer of a police station may not arrest any person until she/he has obtained prior approval of such arrest from an officer, not below the rank of Inspector General of Police (IGP) in metropolitan cities or of an officer not below the rank of Deputy Commissioner of Police (DCP) or Superintendent of Police (SP) at district level, as the case may be.”

Justices B.S. Chauhan and Dipak Misra, comprising the Apex Court vacation bench, on the 16th of May 2013 refused to pass an order for a blanket ban on arresting persons for posting objectionable comments on website. In lieu with the Centre’s January 9 advisory, the Supreme Court reiterated that no person should be arrested for posting “objectionable comments” on social networking platforms without taking prior permission from senior police officials. The order was passed based on an interim application which sought the release of Smt. Jaya Vindhyala. This application was filed by Shreya Singhal (CRL.MP nos. 11600 & 11601/2013) in a writ petition [Article 32] in Shreya Singhal v. Union of India [WP (Crl) 167/2012]..

Authored By-
Janhavi R I
II Year
Symbiosis Law School, Pune


Adoption, to put in simple terms, is a process whereby a person assumes the parenting of another. Unlike guardianship, where only the responsibility for care and protection are vested with the guardian, adoption implies that the adoptive child and adoptive parents shall have towards each other the relationship of parent-child will all rights and responsibility.
In India, the Central Adoption Resource Authority or CARA- an autonomous body under the Ministry of Women and Child Development acts as the Central Authority in matters concerning in-country and inter-country adoption. CARA is also designated as the Central Authority to deal with inter–country adoptions in accordance with the Hague Convention on Adoption 1993, which was ratified by India in 2003.
Accordingly guidelines for adoption of children have been framed and the procedure has been laid down. Parents of foreign origin desirous of adopting a child must obtain permission of the concerned authority in their home country for adopting a child from India and make an application through an Enlisted Foreign Adoption Agency (EFAA). The EFAA is an adoption agency in the home country of the parents, authorized by and enlisted with the CARA for the purpose of inter-country adoption. Upon receiving an application, the EFAA will prepare a Home Study Report (HSR) detailing marital status, stability of relationship, economic stability, standard of living and other criteria of the adoptive parents before forwarding it to the Recognized Indian Placement Agencies (RIPA), which are Child Welfare Organizations authorized by CARA for placement of Indian children in inter country adoption. The application must be accompanied by other documents mentioned in Annexure 2 of the guidelines.
Upon receiving such an application, the RIPA will make attempts to match a child who is legally free for inter country adoption. A child is legally free for inter country adoption, if within a period of 30 days, the Adoption Coordination Agency or ACA is unable to match such a child with suitable Indian parents and the ACA certifies the same. The RIPA will thereafter forward the application along with the clearance certificate from the ACA and other documents prescribed in Annexure 3 to the CARA for a No Objection Certificate (NOC).
On being satisfied of the application, CARA will issue an NOC within a period of 15 days to the RIPA. After receiving the NOC, the RIPA shall file a petition before the competent court for adoption. The court may thereafter place the child with the Foreign Prospective Adoptive Parents (FPAP). As per the directions of the Supreme Court, such a petition must be disposed off within a period of 2 months. Subsequently the RIPA shall apply to the regional passport authority for the issuance of an Indian Passport. The passport authority may issue the same within a period of 10 days after which Visa/ entry permits shall be obtained from the concerned embassy. The adoptive parents shall thereafter accompany the child to their home country.
Authored by
Naqsha H Biliangady
Mento Associates