Tuesday, November 20, 2012

Section 66A of IT Act– Is it a bad Law ?

          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.