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January 27, 2013 |  | By H S Gill | ||
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In the past few months, there has been widespread debate on the use of amended Information Technology Act 2000 (now IT Act 2008) section 66 (A) which relates to freedom of speech and freedom of expression. The arrests of Jadavpur University professor Ambikesh Mahaptra, cartoonist Aseem Trivedi and businessman Ravi Srinivasan over cartoons or tweets posted in the social media have been widely discussed in the media. The arrest of two girls, Shaheen Dhada and her friend Rini Shrinivasan, in Palghar, Maharashtra, for posting comments criticising the bandh after Shiv Sena leader’s death also drew wide public condemnation. The above incidents occurred in the year gone by but an incident of 2011 also led to the arrest in May 2012, of two men from Mumbai, Mr K.V. Rao and Mr Mayank for allegedly posting offensive comments against some Congress leaders on their Facebook group. The two accused had shared a joke and distorted a political party's election flag to express their angst against the politicians. These incidents highlight not only the prickliness of Indian political parties but also the willingness of the law enforcement agencies to dance to their master’s tunes. The arrests of Shaheen and Rini for their personal innocuous comments on Facebook reflect a clear case of abuse of authority. The girls were neither disrespecting anyone nor were they promoting hatred towards any community. It was just expression of an opinion that there was no need for Mumbai to be shut down due to death of a leader. A certain section of the society, particularly the followers of a popular leader may not agree with this opinion. But this did not make a proper case for the arrest of two girls under IPC section 295A {later changed to IPC Section 505(2)} and the IT Act Section 66(A). Legal experts have opined that these arrests have led to curbing the freedom of speech which is fundamental to and the fulcrum of our democracy. To quote Supreme Court Counsel C A Sundaram“Freedom comes in expressing something that displeases you”. After the eruption of the controversy, the government has issued an advisory to states on how to implement the controversial Section 66(A) of the IT Act. No less than a police officer of a rank of DCP will be allowed to permit registration of a case under provisions of the Information Technology Act that deals with spreading hatred through electronic messages. In the case of metropolitan cities, such an approval would have to come at the level of Inspector General of Police. To quote "...the concerned police officer or police station may not register any complaints (under IT Act Section 66 (A)) unless he has obtained prior approval at the level of an officer not below the DCP rank in urban and rural areas and IG level in metros." This however is unlikely to resolve the problem. Given the fact that political discourse and influence, or even a surcharged atmosphere about some issues often dictates how the apparatus of the state behaves, Section 66A will continue to be open to misuse. At one level, the problem is that the wording of the Section makes it so vague as to be applicable to virtually anything anyone might find "grossly" offensive or causing "annoyance or inconvenience". Then Minister of Communications and Information Technology KapilSibal had told media that amendments might be needed to prevent misuse of the IT Act.The Central Government in its affidavit to the Court has however stated that the legislative intent of the Act was to curb sending of offensive messages through computers and communication devices and further stated that freedom of speech was subject to certain restrictions and misuse of the law by a particular section cannot make it unconstitutional. Section 66(A) of the IT Act needs to be analysed in depth. It reads as follows: - 66(A).Punishment for sending offensive messages through communication service, etc. Any person who sends, by means of a computer resource or a communication device
Explanation.— For the purpose of this section, terms “electronic mail” and “electronic mail message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message. While proving false message is relatively easy, what constitutes an electronic message to be grossly offensive or of menacing character is largely subjective. Indian law has not defined anywhere the meaning of ‘offensive’ or ‘menacing’. As per the laws of general English, a person receiving message should find that to be offensive to apply this provision, so its interpretation becomes relative and differs from person to person. Cyber-crimes like intentionally sending spam messages, phishing emails, threatening messages, etc. can also be punished under this section. This section is also applied along with IT Act Section 67 or 67(B) which is related to cyber and child pornography respectively. In the on-going public interest litigation (PIL) in the honourable Supreme Court challenging the constitutional validity of IT Act section 66 (A) ,the petitioner, ShreyaSinghal in her plea, has contended that "the phraseology of Section 66(A) of the IT Act, 2000 is so wide and vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse and, hence falls foul of Article 14, Article 19 (1)(a) and Article 21 of the Constitution."The petitioner has sought issue of guidelines by the Apex Court, to "reconcile section 41 and 156 (1) of the Criminal Procedure Code with Article 19 (1)(a) of the Constitution". On 30 Nov 2011, the honourable Supreme Court issued a notice to the Central Government and four State Governments to file respective replies to the PIL. Maharashtra Government admitted to the Court that the arrests of two girls in Palghar were unjustified and took a firm action in the matter by suspending the concerned officials. Section 41 of the CrPC empowers the police to arrest any person without an order from the magistrate and without a warrant in the event that the offence involved is a cognisable offence. Section 156 (1) empowers the investigation by the police into a cognisable offence without an order of a magistrate. Article 19(1)(A) of the Constitution of India declares that all citizens have the right to freedom of speech and expression. Clause 2 of Article 19 of the Constitution makes it clear there are "reasonable restrictions on the exercise of the right" granted by sub clause A of Article 19. The operative word is 'reasonable'. Threat to public order, defamation, incitement to offence, contravening decency and morality, committing contempt of court, etc, are listed in Article 19(2) as grounds to limit freedom. As per the constitution, restrictions on speech cannot go beyond this. Actions over the previous year show that Section 66(A) of the IT Act, is open to misinterpretation, is too broad based and therefore is open to abuse. Are powerful and influential people using this law to curb free speech? Or is the section necessary to check libellous posts on the internet? There is a need to preserve the right of the people to free speech guaranteed under article 19(1) of the Constitution. To that extent, changes are warranted in the IT Act Section 66(A) to bring it in conformity to Constitutional provisions. (with inputs from Hindustan Times, Economics Times, Business Today, India Today, www.ibnlive.co.in, www.chmag.com , NALSAR University of Law, www.deity.gov.in, Indian Law Institute) The author is a Senior Fellow at CLAWS.
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H S Gill |
