As the Supreme Court hearing over the constitutional validity of Section 66A of the Information Technology Act continues, the NDA government has tried to justify it by saying that the it was necessary to curb the Internet, given its wide reach and the fact that the medium was different from say television or print.

According to a report in Times of India, additional solicitor general Tushar Mehta told the court that “there was a need for a mechanism to put checks and balances on this medium”, because the Internet doesn’t “operate in an institutional form.”

He told the court that, “Considering the reach and impact of medium, leeway needs to be given to legislature to frame rules. On the Internet every individual is a director, producer and broadcaster and a person can send offensive material to millions of people at a same time in nanosecond just with a click of button.”

Mehta also said that the vague wording of Section 66A, which said ‘grossly inoffensive’ content could land someone in prison for three year, was not a good enough reason to get rid of the section. It should be noted that previously the court had commented on the vagueness of the term “grossly offensive.”

We had noted earlier that the court had expressed concern that a person could be jailed under the act which remained largely subjective. “How long will a gentleman remain in jail? He may remain in jail till a judge of the Supreme Court or any other court will apply the judicial mind,” the bench said.

The bench had then asked the ASG who would decide what constituted grossly offensive content. “Of course, it is the SHOs and other policemen,” it said noting that the police in India are not cyber experts.

In the earlier hearings, Mehta had given examples of how the Ministry of Defence and External Affairs, received emails that were designed to hack and steal information from the ministries, in an effort to convince the court that Section 66 was needed to prevent such activities. The court was however not impressed and had pointed out that this eventuality was already dealt with viruses and hacking for which Section 65 of the IT Act was relevant.

This is the full text of section 66A:

“Any person who sends, by means of a computer resource or a communication device,—

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,

shall be punishable with imprisonment for a term which may extend to three years and with fine.”

A communications device in this context would also include a smartphone, a mobile or even a social media post. The Supreme Court is currently hearing a batch of petitions challenging constitutional validity of several provisions of the Act.

As free-speech activists and Internet rights activists have pointed out, Section 66A is often misused. A number of petitions against it were made in the backdrop of the arrest of two Maharashtra girls, Shaheen Dada and Renu Shrinivas, who were arrested in Mumbai for posting (and liking) a comment on Facebook questioning the shutdown of the city to mark Bal Thackeray’s death.

In another case, the section was used against businessman Ravi Srinivasan, who was hauled up in a court in Chennai for tweeting about the wealth of Karti Chidambaram, the son of P Chidambaram. In West Bengal, police went after a Jadavpur University professor for circulating a cartoon about Mamata Banerjee and also charged him with Section 66A of the IT Act.

In Goa last year, police used the section to book a young shipping professional for a Facebook post which said that the Prime Minister-elect Narendra Modi would start a holocaust in India. Devu Chodankar had written on a Facebook forum on Goa+, a popular forum with over 47,000 members, if elected to power, Modi would unleash a ‘holocaust’. He deleted his post subsequently. Chodankar later apologised for his choice of words but stood by the sum of his argument, calling it his crusade against the “tyranny of fascists”.

Publish date: February 27, 2015 7:20 am| Modified date: February 27, 2015 7:52 am

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