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 the section, 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 of petitions challenging the validity of the section. 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 does not violate citizens' right to freedom of speech and expression.
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".
Why was the law enacted
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.
Object of the law
It sought to give a fillip to electronic transactions, provide legal recognition for e commerce 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 material 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 should not 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.
Problem with the law
Unfortunately the amendment was passed by Lok Sabha on December 22, 2008 and 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 social media the total shutdown of Mumbai for Shiv Sena leader Bal Thackeray's funeral and the arrest of a Jadhavpur University professor for circulating a caricature of Trinamool Congress chief Mamata Banerjee and then railway minister Mukul Roy.
In its response to a public interest litigation 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 did not 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 cannot be the sole ground to quash it.
A vaguely worded section
It is 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 the section reveals how vaguely worded it is. It prescribes a maximum punishment of a prison term of 3 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 cannot be said to be reasonable as required under Article 19(2) of the Constitution.
It is 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 will not 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.
When Section 66A was misused
November 20, 2012: Maharashtra police arrest Shaheen Dhada 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.
April 13, 2012: Jadavpur University professor Ambikesh Mahapatra arrested for circulating a picture spoofing West Bengal chief minister Mamata Banerjee and her party colleague Mukul Roy.
October 31, 2012: A Puducherry businessman, Ravi Srinivasan, arrested for allegedly posting 'offensive' messages on Twitter about Congress leader P Chidambaram's son Karti Chidambaram.