A few minutes ago, the Supreme Court delivered a judgement striking down Section 66 A of the Information Technology Act, 2000. This was in response to a PIL that challenged the constitutionality of this provision. In light of this, we present a background to Section 66 A and the recent developments leading up to its challenge before the Court. What does the Information Technology Act, 2000 provide for? The Information Technology (IT) Act, 2000 provides for legal recognition for transactions through electronic communication, also known as e-commerce. The Act also penalizes various forms of cyber crime. The Act was amended in 2009 to insert a new section, Section 66A which was said to address cases of cyber crime with the advent of technology and the internet. What does Section 66(A) of the IT Act say? Section 66(A) of the Act criminalises the sending of offensive messages through a computer or other communication devices. Under this provision, any person who by means of a computer or communication device sends any information that is:
Over the past few years, incidents related to comments, sharing of information, or thoughts expressed by an individual to a wider audience on the internet have attracted criminal penalties under Section 66(A). This has led to discussion and debate on the ambit of the Section and its applicability to such actions. What have been the major developments in context of this Section? In the recent past, a few arrests were made under Section 66(A) on the basis of social media posts directed at notable personalities, including politicians. These were alleged to be offensive in nature. In November 2012, there were various reports of alleged misuse of the law, and the penalties imposed were said to be disproportionate to the offence. Thereafter, a Public Interest Litigation (PIL) was filed in the Supreme Court, challenging this provision on grounds of unconstitutionality. It was said to impinge upon the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. How has the government responded so far? Subsequently, the central government issued guidelines for the purposes of Section 66(A). These guidelines clarified that prior approval of the Deputy Commissioner or Inspector General of Police was required before a police officer or police station could register a complaint under Section 66(A). In May 2013, the Supreme Court (in relation to the above PIL) also passed an order saying that such approval was necessary before any arrest is to be made. Since matters related to police and public order are dealt with by respective state governments, a Supreme Court order was required for these guidelines to be applicable across the country. However, no changes have been made to Section 66 A itself. Has there been any legislative movement with regard to Section 66(A)? A Private Member Bill was introduced in Lok Sabha in 2013 to amend Section 66(A) of the IT Act. The Statement of Objects and Reasons of the Bill stated that most of the offences that Section 66(A) dealt with were already covered by the Indian Penal Code (IPC), 1860. This had resulted in dual penalties for the same offence. According to the Bill, there were also inconsistencies between the two laws in relation to the duration of imprisonment for the same offence. The offence of threatening someone with injury through email attracts imprisonment of two years under the IPC and three years under the IT Act. The Bill was eventually withdrawn. In the same year, a Private Members resolution was also moved in Parliament. The resolution proposed to make four changes: (i) bring Section 66(A) in line with the Fundamental Rights of the Constitution; (ii) restrict the application of the provision to communication between two persons; (iii) precisely define the offence covered; and (iv) reduce the penalty and make the offence a non-cognizable one (which means no arrest could be made without a court order). However, the resolution was also withdrawn. Meanwhile, how has the PIL proceeded? According to news reports, the Supreme Court in February, 2015 had stated that the constitutional validity of the provision would be tested, in relation to the PIL before it. The government argued that they were open to amend/change the provision as the intention was not to suppress freedom of speech and expression, but only deal with cyber crime. The issues being examined by the Court relate to the powers of the police to decide what is abusive, causes annoyance, etc,. instead of the examination of the offence by the judiciary . This is pertinent because this offence is a cognizable one, attracting a penalty of at least three years imprisonment. The law is also said to be ambiguous on the issue of what would constitute information that is “grossly offensive,” as no guidelines have been provided for the same. This lack of clarity could lead to increased litigation. The judgement is not available in the public domain yet. It remains to be seen on what the reasoning of the Supreme Court was, in its decision to strike down Section 66A, today.
Earlier this week, Rajya Sabha passed the Airports Economic Regulatory Authority of India (Amendment) Bill, 2019, and the Bill is now pending in Lok Sabha. The Bill amends the Airports Economic Regulatory Authority of India Act, 2008. The Act established the Airports Economic Regulatory Authority of India (AERA). AERA regulates tariffs and other charges for aeronautical services provided at civilian airports with annual traffic above 15 lakh passengers. It also monitors the performance standard of services across these airports. In this post, we explain the amendments that the Bill seeks to bring in and some of the issues around the functioning of the regulator.
Why was AERA created, and what is its role?
Few years back, private players started operating civilian airports. Typically, airports run the risk of becoming a monopoly because cities usually have one civilian airport which controls all aeronautical services in that area. To ensure that private airport operators do not misuse their monopoly, the need for an independent tariff regulator in the airport sector was felt. Consequently, the Airports Economic Regulatory Authority of India Act, 2008 (AERA Act) was passed which set up AERA.
AERA regulates tariffs and other charges (development fee and passenger service fee) for aeronautical services (air traffic management, landing and parking of aircraft, ground handling services) at major airports. Major airports include civilian airports with annual traffic above 15 lakh passengers. In 2018-19, there were 32 such airports (see Table 1). As of June 2019, 27 of these are being regulated by AERA (AERA also regulates tariffs at the Kannur airport which was used by 89,127 passengers in 2018-19). For the remaining airports, tariffs are determined by the Airports Authority of India (AAI), which is a body under the Ministry of Civil Aviation that also operates airports.
What changes are being proposed in the Bill?
The Bill seeks to do two things:
Definition of major airports: Currently, the AERA Act defines a major airport as one with annual passenger traffic over 15 lakh, or any other airports as notified by the central government. The Bill increases the threshold of annual passenger traffic for major airports to over 35 lakh.
Tariff determination by AERA: Under the Act, AERA is responsible for determining the: (i) tariff for aeronautical services every five years, (ii) development fees, and (iii) passengers service fee. It can also amend the tariffs in the interim period. The Bill adds that AERA will not determine: (i) tariff, (ii) tariff structures, or (iii) development fees, in certain cases. These cases include those where such tariff amounts were a part of the bid document on the basis of which the airport operations were awarded. AERA will be consulted (by the concessioning authority, the Ministry of Civil Aviation) before incorporating such tariffs in the bid document, and such tariffs must be notified.
Why is the Act getting amended?
The Statement of Objects and Reasons of the Bill states that the exponential growth of the sector has put tremendous pressure on AERA, while its resources are limited. Therefore, if too many airports come under the purview of AERA, it will not be able to perform its functions efficiently. If the challenge for AERA is availability of limited resources, the question is whether this problem may be resolved by reducing its jurisdiction (as the Bill is doing), or by improving its capacity.
Will the proposed amendments strengthen the role of the regulator?
When AERA was created in 2008, there were 11 airports with annual passenger traffic over 15 lakh. With increase in passenger traffic across airports, currently 32 airports are above this threshold. The Bill increases the threshold of annual passenger traffic for major airports to over 35 lakh. With this increase in threshold, 16 airports will be regulated by AERA. It may be argued that instead of strengthening the role of the regulator, its purview is being reduced.
Before AERA was set up, the Airports Authority of India (AAI) fixed the aeronautical charges for the airports under its control and prescribed performance standards for all airports and monitored them. Various committees had noted that AAI performed the role of airport operator as well as the regulator, which resulted in conflict of interest. Further, there was a natural monopoly in airports and air traffic control. In order to regulate the growing competition in the airline industry, and to provide a level playing field among different categories of airports, AERA was set up. During the deliberations of the Standing Committee examining the AERA Bill, 2007, the Ministry of Civil Aviation had noted that AERA should regulate tariff and monitor performance standards only at major airports. Depending upon future developments in the sector, other functions could be subsequently assigned to the regulator.
How would the Bill affect the regulatory regime?
Currently, there are 32 major airports (annual traffic above 15 lakh), and AERA regulates tariffs at 27 of these. As per the Bill, AERA will regulate 16 major airports (annual traffic above 35 lakh). The remaining 16 airports will be regulated by AAI. Till 2030-31, air traffic in the country is expected to grow at an average annual rate of 10-11%. This implies that in a few years, the traffic at the other 16 airports will increase to over 35 lakh and they will again fall under the purview of AERA. This may lead to constant changes in the regulatory regime at these airports. The table below provides the current list of major airports:
Table 1: List of major airports in India (as on March 2019)
| Airports with annual traffic above 35 lakh | Airports with annual traffic between 15 and 35 lakh | ||||
|
Ahmedabad |
Goa |
Mumbai |
Amritsar |
Madurai* |
Srinagar |
|
Bengaluru |
Guwahati |
Patna |
Bagdogra |
Mangalore |
Trichy* |
|
Bhubaneswar |
Hyderabad |
Pune |
Calicut |
Nagpur |
Varanasi |
|
Chennai |
Jaipur |
Thiruvananthapuram |
Chandigarh |
Port Blair* |
Vishakhapatnam |
|
Cochin |
Kolkata |
Coimbatore |
Raipur* |
||
|
Delhi |
Lucknow |
Indore |
Ranchi* |
||
* - AERA does not regulate tariffs at these airports currently.
Sources: AAI Traffic News; AERA website; PRS.
