Section 66A of the Information technology Act, 2000 is increasingly being criticized in the social media. Not all the criticism is misplaced. We have
seen arrests being made on frivolous complaints, latest being the arrest of two
young girls from Palghar near Mumbai, for posting a message against the total
shutdown of the City on the death of a political leader. Police and Government of Maharashtra seem to
have not learned any lessons from the debacle of the arrest of cartoonist Aseem
Trivedi.
In the recent past, there was another incident
in which a person from Pondicherry was arrested for his tweets on Mr Kartik
Chidambaram, son of the current Finance Minister of India. A Professor was arrested in West Bengal, for
forwarding cartons that depicted Chief Minister Ms Mamata Banerjee. In all
these cases, Section 66A was a common factor, though various sections of Indian
Penal Code also were used. No wonder Section 66A became the villain for social
media enthusiasts!
It is time for us to be objective
in our criticism about this section that was inserted into the IT Act, by an amendment
2008. Let us see what the section reads like:
66A.
Punishment for sending offensive messages through communication service, etc. Any person who sends, by means of a computer resource or a
communication device,
(a) information
that is grossly offensive or has
menacing character; or
(b)
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
shall be punishable with
imprisonment for a term which may extend to three years and with fine.
Explanation: For the purposes 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, image, audio, video and any other electronic record, which
may be transmitted with the message. (Emphasises
supplied)
Now consider the section objectively. Don’t we need
such a provision? With the increasing penetration of internet connectivity,
most of our interactions are shifting from real world to the virtual world. Can
any Government ignore this completely? We all know potential of the internet
and social media to create law and order issues, and even revolutions!
Consider those highlighted portions
of the Section. The acts mentioned therein are strictly defined. If a stalker or
fraudster uses the internet or other communication media to do an unlawful act
should the government be a mere spectator because it is done in the virtual
world? To my mind there is no doubt that no country can allow the internet to
be left totally at the mercy of its users alone.
If we look at the FB post or the Tweet or the cartoons, it was very clear that
they did not warrant use of Section 66A or any other criminal proceedings. Any
sensible police officer or a judge will see there is no substance in the offence
alleged. Yet, the section was misused to
terrorize the unsuspecting persons who chose to express an opinion that is not
acceptable to another person.
What
is the solution? In my opinion, we need such a provision to deal with the criminals
on the net. Same time, I agree we need to ensure that the section is not
misused to settle scores or to intimidate. The IT Act itself recognized this and
includes Section 78 so that adequate consideration, at an appropriate level, is
given before charging someone under Section 66A. Section 78 reads as follows:
78. Power to Investigate Offence: Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), a police officer not
below the rank of Deputy Superintendent of Police shall investigate any
offence under this Act.
Now look at another aspect of the issue. Will
removing Section 66A save our Right freedom of expression? Apparently, in all
these cases Section 66 was used to make the IT Act applicable since the medium
used for alleged crimes were Internet and computers. All the persons were also charged under
various sections of Indian Penal Code, in each case. So, merely removing
Section 66A would not have saved the so called offenders from prosecution. We
have cases were cartoonists were charged with sedition and put in jail for
drawing a cartoon of Mr Narendra Modi, without using Section 66A, since the
cartoon appeared in print media and not electronic media. I am sure it is no one’s
case, that print media has lesser right to freedom of expression than
electronic media?
Any
society which has Right to Freedom of expression must also have Right to be offended.
No Right is of any use unless one can enforce it and that is even true for the
right to be offended. If a person is
offended by words or deeds of another, what is his remedy? He can either
collect a mob of 1000 or 2000 and go and attack the person or his premises. Or, the offended person can seek legal
remedies to punish the offender. Needless to say, for us Indians the first
option seems to more acceptable than the second option. We are less outraged
when mob violence takes place against free speech and expression and more
outraged when someone decide to prosecute the offender!
Let
there be a legal remedy available for those who can’t, or do not prefer to exercise
the mob violence option. Let them use their other Fundamental right of Right to
Legal remedy (equally or more important than Freedom of Speech).
Individuals’
right to legal remedy is also subject to reasonable restrictions as much right
to freedom of speech is also subject to such restrictions. Merely because a person has exercised his
right to file a complaint against what he thinks is offensive, a person need
not be arrested and put in jail. As Section 78 itself demands, the fairness and
reasonableness of action must be considered at a level of not less than a
Deputy Superintendent of Police.
What
we urgently need is accountability for any potential misuse of law. Even if Police thinks the alleged act meets
the conditions of Section 66A, the Court must look at it. Primary duty of any
court must be to ensure that individual’s right to freedom is protected. Court
must see the seriousness or otherwise of the alleged offence and the character
of involved person and then decide on granting bail at the easiest terms. Our
courts must always keep in mind that bail and not Jail must be the rule while
dealing with accused persons. The offenders can be convicted if they are found
guilty. But to jail accused persons as under trials, must be avoided to the
best possibility. If a Police officer has exceeded his powers in arresting a
person, he must also be acted against by the Court itself.
Please
remember, no Government can force a court to jail an accused person for expressing
his or her view on any media. Courts must rise to their constitutional roles to
protect the freedom even if there are police or administrative excesses at
times. Courts as well as legislatures must come up with more stringent rules
about the arrest and jailing of persons. These issues are not limited to the
presence of Section 66A alone.
Section 66A is not a bad law. We
need such a law to deal with the activities on Internet, though I agree there is scope for more amendment to bring more clarity in the clause (c). We in the social media
cannot demand better rights than other citizens. If we engage in any activities
that concern the public, including expressing our views on matters involving
others, we are exposing ourselves to the risk of being prosecuted. That is a
part of the rule of law. Misuse does not make an otherwise valid law, bad.
Real remedy lies elsewhere- reforms
in police and criminal justice system. But that subject is beyond the scope of this
post.
