Legal experts on Monday said it was wrong to invoke section 66A of the Information Technology (IT) Act - sending offensive messages through communication service - against the two Palghar-based women as it gave too much discretionary power to the police.
Lawyers criticised the Act, which has faced opposition since 2008 when it was added as an amendment to the original IT Act of 2000, calling it “logically inconsistent”.
Any online content identified as ‘grossly offensive or has menacing character’ or ‘electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience’ can attract section 66A, a non-bailable offence, punishable with up to three years’ jail.
Lawyer Flavia Agnes said: “The section is in conflict with the freedom of expression. If there is a situation where a particular section appears to curtail a constitutional right, the section should be well-defined, which is not the case with section 66A.”
Former IPS official and lawyer YP Singh said phrases such as ‘grossly offensive’ and ‘menacing character’ have to be defined properly as they are subjective.
“While abusing a person who is physically present is not a crime, if someone abuses a person over phone or an electronic device, it is a crime as per section 66A. It is a logically inconsistent section.”
Both Agnes and Singh said such a vague law can be abused by the police. “If there is no specification, the police will use the law as per their whims and fancies,” Agnes said.
Pankaj Bafna, a lawyer who deals with cyber crimes, said: “How will one know what will be offensive for another person?”
Lawyer Mahesh Jethmalani said: “An objective criterion must be laid down about what is offensive.”