It is the ‘brahmastra’ to curb online freedom of speech and expression in India.
The arrest of two girls based in Palghar, Maharashtra, for posting and liking a Facebook status message which criticised the shut down of the city due to Bal Thackeray’s death, has once again brought into focus the fallacies of Section 66A of the Information Technology Act.
Offences under the act are as follows:
(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 makes 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
Offences under the section are non- bailable and punishable, and carry a maximum jail term of three years.
High profile arrests under 66A include that of cartoonist Aseem Trivedi in Mumbai, and Jadavpur University professor Ambikesh Mahaparta (for circulating cartoons of Mamata Banerjee on Facebook) as well as Puducherry businessman (for tweeting about the assets of Karti Chidambaram).
Section 66A was not part of the original IT Act 2000.
It transpired after the union ministry of Communication and IT formed an expert committee to amend the Act in August 2005. The ministry said that it had to review the act in the context of developments, both nationally and internationally, regarding provisions related to data protection and privacy in the context of BPO operations, the liabilities of network service providers, computer related offences, and regulation of cyber cafes.
The expert committee found that was a need for “gradation of the severity of computer related offences under Section 66, committed dishonestly or fradulently and punishment thereof.” (Read the summary of proposed amendments and report of the expert committee here).
The result was the inclusion of section 66A in the first amended draft Bill. The parliamentary committee formed to examine the draft Bill did not discuss specific provisions of the draft Bill. But it recommended that post amendments the Act should have cognizable but bailable offences. The amended Bill was passed in the Loka Sabha without any debate on 23 December 2008.
However, the Section 66A did not define the terms such as ‘grossly offensive’, ‘menacing character’ and ‘ill will’, leaving it up to the authorities and police to interpret. “This section is very broadly framed, vague and can be misused easily. It has been drafted in the manner that any kind of speech can become criminal under this section. There is an urgent need to amend it or delete it from the IT Act,” said Apar Gupta, a Delhi based lawyer and expert in Cyber laws.
Pranesh Prakash of the Centre for Interner & Society (CIS), Bangalore, said that Section 66A was in conflict with the freedom of speech and expression which was provided for in the Indian constitution.
“It would take a highly clever lawyer and a highly credulous judge to make ‘liking’ of a Facebook status update an act capable of being charged under this section.Article 19(1) (a) of the constitution protects the freedom of speech and expression and even non-verbal expression including ‘liking’ is a protected speech,” Prakash noted in a blog post on the CIS site.
Interestingly, for communication done offline there is no law or clause similar to Section 66A.
Maybe Shaheen could have said what she said, offline, without facing any backlash. Shivam Vij, well known blogger and founder of kafila.org, said, “India has witnessed the history of misuse of laws for clampdown on freedom of speech and expression. With section 66A, the government went a step ahead and made it worse for netizens. This is in tune with other laws which the government uses to fabricate people. They are not designed to achieve conviction. They are meant to harass and censor.”
A tweet on the Palghar episode, rightly sums up the scenario: Now Facebook gives you three options after you post a comment: edit, delete, file anticipatory bail.
Dec 1, 2015