The government appears to be blowing hot and cold on the issue of Section 66A of the Information Technology Act, often used to muzzle free speech on social media.
Having admitted before the Supreme Court that there is a need to amend Section 66A, the Centre has now justified retention of the controversial provision contending internet needs stricter curbs than other media - given its wider reach and impact.
The top court on Thursday reserved its verdict on a batch petitions challenging the validity of Section 66A of the IT Act. But the government’s latest assertion alludes to a state of confusion in dealing with the abuse of internet freedom by anti-social elements to create mischief and the unwarranted controversies created by blatant misuse of the law against innocent people exercising their fundamental right to freedom of speech and expression.
While informing the court that it had formed a panel to draft a new law, prepare a roadmap after studying aberrations, and suggest safeguards against its possible misuse, the Centre had earlier maintained that the controversial provision doesn't violate citizens' right to freedom of speech and expression.
The Controversial Provision
Section 66A provides punishment for sending "grossly offensive" messages through communication services, including text messages, images and video. While hearing several petitions challenging the arrest of people who allegedly posted "objectionable" content on social media, the Supreme Court said on Thursday it would examine the term "grossly offensive".
The UN General Assembly had on January 30, 1997 passed a resolution adopting the Model Law on Electronic Commerce drafted by the UN Commission on International Trade Law. The resolution recommended that all member states should enact or revise their laws in view of the need for uniformity of the law applicable to alternatives to paper-based methods of communication and storage of information.
It was to give effect to the this UN resolution that India's parliament enacted the Information Technology Act, 2000 to promote efficient delivery of government services by means of reliable electronic records.
Objective Of The Law
The objective behind this law was to give a fillip to electronic transactions, provide legal recognition for ecommerce and e-transactions, facilitate e-governance, prevent computer-based crimes and ensure security practices and procedures in the context of widest possible use of information technology worldwide.
The IT Act also amended the Indian Penal Code, Indian Evidence Act, 1872, The Bankers' Books Evidence Act, 1891, and the Reserve Bank of India Act, 1934 to facilitate e-commerce and electronic governance.
But the problem lies in a hurriedly made amendment during the UPA-I rule in December 2008 that added Section 66A to the law along with several other provisions. The intention was to strengthen penal provisions following a rapid increase in new crimes such as publishing sexually explicit materials in electronic form, video voyeurism, breach of confidentiality and leakage of data, e-commerce frauds like phishing, identity theft and transmission of offensive messages through communication services.
It's nobody's case that those misusing social media platforms for criminal purposes shouldn't be taken to task. They must be. And it can be done only through a well thought out law which is discussed threadbare in parliament and the media.
The Problem With Law
Unfortunately the amendment was passed by the Lok Sabha on December 22, 2008 and the Rajya Sabha on December 23, 2008 without much discussion, leaving it open to misuse by authorities.
The problem came to light only in 2012 after the media highlighted the arrest of two young girls for questioning on Facebook Mumbai shutdown for Shiv Sena leader Bal Thackeray's funeral and the arrest of a Jadhavpur University professor for circulating a caricature of TMC chief Mamata Banerjee and then railway minister Mukul Roy.
In its response to a PIL by a student, Shreya Singhal, challenging the constitutional validity of Section 66A of the IT Act, the government sought to defend the law by saying it didn't violate freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. It further contended that the law is needed to deal with various cyber crimes and that abuse of a law can't be the sole ground to quash it.
Section 66a Is Vaguely-Worded
But it's not a simple case of misuse of law. In fact, the law suffers from the vice of non-application of mind. A bare reading of Section 66A reveals how vaguely-worded it is. It prescribes a maximum punishment of a prison term of three years with fine for sending information that is "grossly offensive" or has "menacing character" and for sending e-mails causing "annoyance or "inconvenience" to the recipient.
What is even worse is that none of these expressions has been defined in the law. This goes against the cardinal principle of criminal law, which requires each and every term or expression used in a law to be well-defined, leaving no scope for misinterpretation and possible misuse.
It was for this very reason that in the entire Indian Penal Code, Lord Macaulay used numerous explanations and illustrations to clarify penal provisions and defined almost all expressions used in the IPC.
Unreasonable Restriction On Free Speech
Prima facie, Section 66A of the IT Act appears to violate the fundamental right to freedom of speech and expression as the restrictions it seeks to impose can't be said to be reasonable as required under Article 19(2) of the Constitution.
It's also a sad commentary on our legislative process. Despite having several institutional safeguards to ensure proper lawmaking, we continue to get poorly drafted laws, thanks to a parliamentary logjam that forces the government to rush through the entire process.
The Supreme Court had in December 2014 said: "Heavens won't fall if Section 66A of IT Act is stayed." One would be happy if the Supreme Court quashed the controversial provision or at least read it down, making it compatible with the needs of a democracy that is digitising very quickly.
As far as posting of picture and comments that hurt religious sentiments are concerned, there are enough provisions in the IPC to deal with them.
Instances Of Misuse Of Section 66a:
Nov 20, 2012: Maharashtra police arrest Shaheen Dhada Act for questioning in her Facebook post why Mumbai had shut down for Bal Thackeray's funeral. Her friend Rinu Srinivasan was arrested for 'liking' her post.
Apr 13, 2012: Jadavpur University professor Ambikesh Mahapatra arrest for circulating a picture spoofing WB chief minister Mamata Banerjee and her party colleague Mukul Roy.
Oct 31, 2012: A Puducherry businessman Ravi Srinivasan arrested for allegedly posting 'offensive' messages on Twitter about Congress leader P Chidambaram's son Karti Chidambaram.