An Unconstitutional Section of IT Act


FREEDOM of expression is one of the most cherished rights that people got after a long struggle.

The communication revolution which got an unimaginable boost with the invention of the Internet further strengthened this freedom. What was, for the first time, commissioned in 1969 by America’s department of defence as the construction of a super network called ARPANET (Advanced Research Projects Agency Network) and was intended as a military network of 40 computers connected by a web of links and lines, slowly grew into Internet. It gave unprecedented power of freedom of expression to the people who were ignored by television and newspapers. Such people can now air their views on social networking sites. But soon laws were made by different countries to regulate this newfound freedom. India also came forward to enact the Information Technology Act, 2000, which is now an easy tool in the hands of the police to muzzle this freedom. However, the chorus of protest against the attempt to subvert this freedom is growing.

Some people become heroes by default. So is the case with Ms Shaheen Dhada who is set to create history as the misuse of Section 66A of the Information Technology Act, 2000 has become a national issue following her arrest for what she wrote in her Facebook post on 18 November, the day the mortal remains of Shiv Sena supremo Bal Thackeray were consigned to flames. She wrote: "Everyday thousands of people die, but still the world moves on …Today Mumbai shuts down out of fear, not out of respect." Within minutes, she got a call from some stranger who asked, "Do you really mean whatever you posted is right?" She was terrified and she immediately deleted her comment. Soon a mob vandalised her uncle’s clinic and she was arrested by the police along with Ms Renu Srinivasan, her friend, who had ‘liked’ the comment, but the two were released on bail.

Storm after Facebook Post

The incident touched off storm as human rights lovers raised their voice and the Supreme Court sent notices to the Maharashtra and some other state governments, where such incidents had occurred earlier, along with the Centre, to make their stand on Section 66A of the IT Act under which the two girls of Palghar were detained. The Union Minister for the IT immediately issued guidelines that no arrests would be made in such cases without the prior permission of IG police in the metros and DCP in small cities. In recent times, several arrests have been made under this section in different states: Professor Ambikesh Mahapatra of the Jadavpur University in the cartoon controversy relating to Ms Mamata Banerjee, Mr Aseem Trivedi in Mumbai in another cartoon controversy during the Anna movement, Mr Ravi Sridhar in Puducherry for writing against Mr Chidambaram’s son Mr Karti Chidambaram on Twitter etc.

So, it will be pertinent to examine the scope and background of this section which has the potential to muzzle the voice of the public. Section 66A provides for punishment for sending offensive messages by means of a computer resource or a communication device. It includes any information that is grossly offensive or has menacing character, or 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. It is clear that the section is open-ended which gives a lot of discretion to the police to cock the gun against the alleged offender. The right to freedom of speech and expression is a fundamental right as guaranteed by Article 19(1) of the Constitution and Article 19(2) mentions the grounds on which it can be curbed. Thus, this right is so vital that it cannot be curtailed except on the limited grounds given in the Constitution. Surprisingly, Section 66A adds many more grounds for curbing this freedom which is tantamount to abridging this right though the Constitution expressly mandates that the state shall make no law which takes away or abridges any of the fundamental rights. It is hoped that the Supreme Court, which is seized of the matter, will decide whether it is ultra vires of the Constitution. Further, words like ‘annoyance’, ‘inconvenience’, ‘danger’, ‘obstruction’, ‘insult’, ‘injury’ etc. are open-ended. Any message can be construed to be vituperative or scurrilous causing annoyance or inconvenience or insult.

It is also significant that Section 66A was added to the IT Act 2000 in 2008 by way of amendment against the background of the arrest of the MD of as someone had uploaded some obscene picture on it. The incident raised the question as to how far the intermediary, which in this case was the content provider, is responsible for such a thing. Then the act was amended to make the person responsible for uploading the message but the language is so wide and vague that it gives a long rope to the police.

Guidelines are Hypocritical

So, the law has to be precise and clear leaving little scope for abuse. The guidelines issued by the minister are humbug which cannot supersede the act. If the act empowers the police to take action how can executive order negate it? Moreover, these guidelines are in direct conflict with sections 78 and 80 of the IT Act. Section 78 clearly states that notwithstanding anything in the Code of Criminal Procedure, a police officer of the level of an inspector shall investigate an offence under the IT Act. Section 80 empowers the police to conduct a search and arrest any person found guilty of violating the act without warrant.

It is astounding that the statement made on television or written in newspapers does not create an offence thought the viewership or the readership is much higher. It is also amazing that Bal Thackaery and Mr Raj Thackeray spit venom against different classes of people, hoodlums of the Shiv Sena and that of the Maharashtra Navnirman Sena created havoc indulging in violence but the police could not find anything offensive, leave alone criminal, in these barbaric acts even though north Indians were physically beaten and terrorised. So, whatever the law, the police can always interpret it capriciously and whimsically to justify its action or inaction and the state government will look on. In case of Ms Dhada, two police officials were suspended after the hue and cry at the national level as the state government was left with no option but to distance itself from the action of the police.

Laws should not be made in reaction. But some laws like the NDPS Act, the Prevention of Money Laundering Act and the IT Act are the results of reaction. Laws should be based on well thought out policies formulated after excogitation. The IT Act was enacted in 2000 in the wake of the Internet revolution and an amendment was introduced in 2008 in a jiffy. It should be hoped that the act will be thoroughly overhauled to remove ambiguities.