The Supreme Court has done Indian democracy a considerable favour by taking up a public interest litigation calling for the cancellation of Section 66A of the Information Technology Act. There is reason to believe that this clause, supposedly designed to extend the existing laws against blasphemy
and libel to the internet and other online communications, is incompatible with the principles of a liberal democracy. Already, it has shown itself to be open to abuse with the arrest of Shaheen Dhadha and Rinu Srinivasan for making private comments on Facebook about the funeral of Shiv Sena leader Bal Thackeray.
No country allows unadulterated freedom of speech. With rights come responsibilities. This is true even in the US, the country with the strongest constitutional safeguards of freedom of expression and where almost any variety of political commentary, no matter how incendiary, is allowed. But a liberal democracy cannot circumscribe free speech without extremely good reason and without the most careful limits. These limitations include a careful definition of what sort of speech is being circumscribed, the circumstances it can be considered illegal and the shrinking of discretionary authority of those who enforce the law to the smallest possible space. Section 66A is violative of every single one of these principles. It is absurdly poorly worded declaring online message that are 'annoying or inconvenience' to be punishable. So is false information that causes 'ill-will' or 'obstruction'. These are purely subjective phrases. Even the sort of messages that it makes sense to punish, such as those with the purpose of 'criminal intimidation', are left undefined. The clause allows almost any sort of remotely offensive remark, including a bad joke or an off-the-cuff message, to be treated as a criminal offence. The government has reduced the discretionary space by declaring that now only senior police officials can authorise arrests. This does nothing to address the more fundamental flaw of the clause. Abuse of authority by a senior official is still abuse of authority.
Section 66A is born of the same sense of undemocratic and arbitrary thinking that still exists in New Delhi's administrators that led to the Prevention of Terrorism Act and even the Foreign Exchange Management Act, both laws that led to governmental abuse and had to be abandoned or modified. In this case, Indians do not have to wait for evidence. Almost the first case of the law being used was the arrest of two young girls for the most absurd of legal reasons and clearly because of the worst of political motives. This is a clause that is beyond salvage. It deserves to be deposited in the dustbin of history - and quickly, before it does more damage to India's democracy.