Section 66A of IT Act has to go
The arrest of two women in Mumbai for posting their views on their Facebook profiles regarding Bal Thackeray’s funeral has drawn attention to the draconian provisions of Section 66A of the Information Technology Act, 2000. Numerous eminent lawyers are of the opinion that this section is in violation of several provisions of the Constitution, especially the right to freedom of speech and expression, and should either be amended suitably by the government or struck down by the judiciary as unconstitutional.
On November 20, the Madurai bench of the Madras high court issued notices to the Central government on a public interest litigation filed by the People’s Union For Human Rights seeking direction to repeal Section 66A on the grounds that it violates freedom of speech guaranteed by the Indian Constitution. Further, an officer of the Indian Police Service filed a writ petition in the Lucknow Bench of the Allahabad high court praying for Section 66A to be declared as ultra vires of Article 19(1)(a) of the Constitution which guarantees freedom of expression. This will be heard tomorrow (November 23).
Section 66A of the Information Technology Act, 2000, which was inserted vide the Information Technology Amendment Act of December 2008, states:
“Any person who sends, by means of a computer resource or a communication device:
(a) any information that is grossly offensive or has menacing character; or (b) 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, persistently by making use of such computer resource or a communication device; or (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.”
Terms such as “causing annoyance”, “causing inconvenience”, “causing obstruction”, “causing ill will” etc are vague and ambiguous, and can be interpreted in multiple ways by different people.
Most insidious is sub-section (c). While sub-section (b) uses the qualifier “persistently”, the phrasing of sub-section (c) implies that the sending of even one single message or piece of information, which may be construed as being sent with the purpose of causing annoyance or inconvenience, shall be punishable with a jail term. An April Fool joke among friends or a quarrel among family members could be interpreted as causing annoyance or inconvenience, and punishable by a jail term if sent over the electronic medium, whereas these would hardly be punishable in the offline, physical world.
Section 66A has been used by state governments and the police to jail their opponents several times in the last few months. In addition to the arrest of the two Mumbai women, Section 66A was used by the Puducherry police to arrest a man who posted tweets about the son of finance minister P. Chidambaram amassing more wealth than Robert Vadra, and by the Mamata Banerjee government in West Bengal for arresting a professor who forwarded cartoons about her.
It appears that the intention of the legislature in drafting Section 66A was to prevent cyber stalking and cyber harassment of the kind that thousands of women face everyday through anonymous emails and SMSes. Indeed, two people were arrested under this section for posting obscene comments about the singer Chinmayi Sripada on Twitter.
But there is ambiguity about whether posting on a website or on social media platforms such as Facebook and Twitter is governed by Section 66A. This is because the first sentence of Section 66A begins with “Any person who sends…”, and the term “publish” does not appear anywhere in this section. In contrast, the phrase “publishing or transmitting” is used in several other sections of the Information Technology Act.
Since Section 66A does not use the term “publishes” but only the term “sends”, it appears that the intention of the legislature in using the term “sends” instead of “publishing or transmitting” was to cover harassing email messages between a single sender and a single recipient, rather than publishing on a website or on social networking platforms. Further, since sub-section (c) of Section 66A uses the phrase “…or to deceive or to mislead the addressee or recipient about the origin of such messages…” it appears that the legislature had a single sender and a single recipient in mind.
Indeed, during his TV appearance on Monday, information technology minister Kapil Sibal insisted that the entire Section 66A applied only when there was an intent on the part of the sender to deceive or mislead the addressee or recipient about the origin of such messages. That may have been the intention of the legislature, but Section 66A uses the word “or” before this phrase. The use of “or” between phrases makes the various clauses stand alone and independent. Thus, as phrased, it appears that Section 66A can be used to punish a single email message which causes annoyance or inconvenience, even when there is no intention to deceive or mislead the recipient about its origin.
There are other inconsistencies as well. The offence, for instance, “of criminal intimidation by an anonymous communication” is punishable under the Indian Penal Code by a jail term of two years, whereas if the same message is sent by electronic means, the punishment may extend up to three years.
With regard to the use of Section 66A by politically powerful persons to harass their opponents, courts in several countries have held that governments and political parties cannot sue for defamation. In the Lingens case in 1986, the European Court of Human Rights held that “…The limits of acceptable criticism are wider as regards a politician than as regards a private individual…When choosing his career, a politician knowingly allows himself as open to close scrutiny, and must therefore tolerate more…” In Goldsmith versus Bhoyrul in 1997, the Queen’s Bench Division in the United Kingdom ruled that governments and political parties could not sue for defamation.
In view of the various instances in which Section 66A has been misused by the police to harass citizens who were exercising their right to free speech, there is a strong case for the judiciary striking down Section 66A. The instances of Ms Banerjee jailing a professor for forwarding a cartoon, the arrest of two women for posting their opinion about Bal Thackeray’s funeral disrupting public life, and the arrest of cartoonist Aseem Trivedi, are all instances which have outraged the nation and indicated to the world that India is not a democracy which values freedom of expression.
The writer heads a group on C4ISRT (Command, Control, Communications and Computers; Intelligence,
Surveillance, Reconnaissance and Targeting) in South Asia