Sec 66A of Information Technology (IT) Act is increasingly in the news albeit for the wrong reasons

Few of us would have ever known about people such as Ambikesh Mohapatra, Aseem Trivedi, Ravi Srinivasan, Shaheen Dhada and Renu Srinivasan or for that matter Henna Bakshi if it wasn’t for our nation’s somewhat schizophrenic relationship with freedom of speech and the arbitrariness of the amended Section 66A of the Information Technology (IT) Act, which when combined with the reach of social and mainstream media has given them minutes /hours/ days of (in) fame. While Ravi’s followers on Twitter increased manifold, Aseem landed in the Big Boss house and Prof Mohapatra in jail. At one point it seemed that the entire debate on revoking (or may be even restricting the scope of) the so called ‘draconian’ law was put on the back burner, yet the arrest of Shaheen Dhada and Renu Srinivasan for ‘posting’ and ‘liking’ (respectively) a question on the appropriateness of a bandh in view of Shiv Sena supremo Bal Thackeray’s death, has once again put the debate back on track. Given the series of arrests, invoking Section 66A of the IT Act, it is apparent that the government and its machinery have more often than not used Section 66A of the IT Act to enforce suppression of dissenting voices. For a change (and for the wrong reasons) the action of police in each of the case has been swift and harsh. This brings us back to the discussion – what does the Act state and what makes the legal eagles and civil society activists challenge the constitutional validity of Section 66A of the IT Act?

The Section states that any person who sends, by means of a computer resource or communication device, any information that is grossly offensive or has a menacing character could be punished with imprisonment for a maximum term of three years, besides imposing appropriate fine.

For a layman, the wordings of the Act mat not suggest that the Act is against the freedom of speech guaranteed under the Constitution. Consider the tweet, “got reports that karthick chidambaram has amassed more wealth than vadra” [Karthick Chidambaram is the son of Union finance minister P Chidambaram and Vadra refers to Sonia Gandhi’s son in-law Robert Vadra] and the repercussion Ravi had to face thereafter. In the early hours, 5 am, on October 30 he was woken up and pulled out of his house and told that he was under arrest because of his tweets. Similar was the case with Prof Mahapatra who shared a satirical cartoon criticizing Mamta Banerjee, the CM of West Bengal. The recent post by Shaheen and ‘like’ by Renu and their arrest on flimsy grounds expose the potential for mischief embedded in the law. The tweets, posts and the cartoon were not ‘grossly offensive’ by any measure nor did they have a ‘menacing character’ to invoke the Act and subsequent imprisonment. This is why lawyers and civil society members feel that there is an incongruity as far as the section of the Act is concerned. They argue that the phrases such as ‘grossly offensive’ and ‘menacing character’ – both of which are subjective, need to be well defined, which is presently not the case. It is perhaps this vagueness that allows the police (and politicians) to use the law as per their whims and fancies and suppress dissenting voices. A general argument put forward is that as long as the section remains so loosely worded and subject to interpretation, it will continue to remain a draconian weapon of oppression against anyone viewed as a dissident by the ‘powers that be’. Cyber law experts such as Pavan Duggal believe that Section 66A has the potential of becoming a dangerous tool that can be used to gag legitimate free speech online.

But is the right to free speech an absolute right? The answer is a big NO. As per the first amendment to the Indian Constitution (May 10, 1951), “reasonable restrictions” was placed on the right to free speech. However players across the political spectrum have often abused the opacity that surrounds the expression “reasonable restrictions”. And this was exactly what junior Chidambaram cited in his defence. He had tweeted, “Free speech is subject to reasonable restrictions. I have a right to seek constitutional/legal remedies over defamatory/scurrilous tweets.” 

The expression “reasonable restrictions” becomes wholly unreasonable if we were to apply it to politicians hurling abuse at one another, parliamentary or otherwise, in parliament (assembly) or outside. It is no wonder that Section 66A of the IT Act has never been used against the political class. This raises a question as to whether there are two distinct standards of freedom of expression – one for the privileged political elite, and the other for the aam aadmi.

Are there exceptions where the 2008 amendment to Section 66A of the IT Act (it was passed without any discussion in the Lok Sabha) has been used for good and to protect citizens against online harassment? We do, thanks to the celebrity status of the complainant. It was when Chinmayi Sripada, a Tamil Singer and entrepreneur, filed a police case about a series of vulgar comments aimed at her on Twitter that the Chennai Police registered a case under this act and others including the Prevention of Women Harassment Act and used the law in fairness to the end of justice. But such cases which highlight the merits of the laws, to move against incidents of harassment or defamation online, are few.

Will Section 66A of the IT Act get cleaned up? Will the ministry of ICT seek legal advice and recommend a modification? Will the honorable Supreme Court take suo motu cognizance of the act and step in to protect freedom of expression guaranteed under the Constitution? Till then all one can do is be careful!