Section 66A of the Information Technology Act is very often compared to Section 498(A) of the Indian Penal Code which deals with dowry. Both sections have been grossly misused and the debate rages on why the sections have not been amended or struck down all together.
In the era of the internet, it is quite surprising that India even has a Section 66A which runs contrary to the provisions of the Indian Constitution.
With the Supreme Court hearing a batch of public interest litigations on the ambit and scope of the section, it comes as a pleasant surprise the government submitted to the court that posting messages on Facebook or Twitter relating to freedom of expression will not be seen as an offence.
The government also went on to admit that there were certain "aberrations amounting to abuse" of Section 66A of the Information and Technology Act. The constitutional validity of Section 66A which allowed arrests for "annoying, inconvenient and dangerous messages" on social media, including ones involving freedom of expression is currently under challenge.
Pavan Duggal one of the country's leading experts on cyber crime laws speaks with oneindia about the significance of the submission made by the government before the Supreme Court. Duggal makes an important point in which he states that it is high time that cyber crime courts are set up.
What does the stand of the government signify:
" This is a significant stand and a departure from the earlier stand of the government which defended Section 66A of the IT Act. The new statement is a reiteration of what exists in the Constitution of India.
The government makes it clear to the Supreme Court that infringing upon the rights of people when it comes to free speech on the internet will not be an offense. The government says that its intention is not to infringe upon free speech on the internet."
Section 66A is a loose cannon:
While the submission by the government is in the right direction, there is a lot more that needs to be done on this front. When one looks at the Constitution and article 19 (1) it becomes clear that every person has a fundamental right to freedom and expression of speech. However under 19(2) the Constitition also states that while there is a right to freedom of expression and speech it is not an absolute right and can be subject to reasonable restrictions.
In this context Section 66A of the IT act is a loose cannon and tends to override the Indian Constitution. Section 66A was passed by the Parliament in 2008 imposes restriction on internet freedom of speech causing which is annoying of menacing in character.
Section 66A continues to exist and still has a very wide and ambiguous category in which the complainant is made the all powerful defacto entity.
It is the complainant who determines what is offensive or menacing in character. Like the anti dowry law even Section 66A is grossly misused in the digital realm.
The problem with Section 66A:
The problem with Section 66A is that it criminalises the sending of information from a computer or mobile. It means that the intention of the person sending out such information has no consequence what so ever.
Unlike in criminal jurisprudence where two elements are critical-intent and action, 66A makes a substantial departure from criminal jurisprudence. Section 81 of the IT Act says that this is a special law and prevails over anything that is consistent therewith.
In such a scenario 66A assumes far more dangerous ramifications because you may post anything on social media with any intention, but intention is disregarded by 66A then your content or information can be viewed by different perspectives by different individuals.
66A basically has become a classic handle for misuse both in the hands of the complainant and police. Hence now the Supreme Court after this government submission will now have to decide if 66A is in conformity with the Constitution of India or not.
What the Supreme Court needs to do?
In its current form, Section 66A comes with supreme ammunition for silencing all kinds of freedom of speech on the internet. Consequently now the Supreme Court needs to ensure that its ambit needs to be restricted.
I also find a distinct contradiction between the provisions of Section 66A and Article 19(2) of the Indian Constitution. If the Constitution provides limited reasonable restrictions then anyother law cannot go beyond it and this is what the Supreme Court will have to take into account.
The Supreme Court will be determining how far Section 66A is legal. I would however like to point out that entirely discarding Section 66A is not the solution. Those portions which violate Article 19(2) of the Indian Constitution need to be struck down.
There is a dire need to come up with illustrations like is done under the Indian Penal Code as to under what circumstances can Section 66A be invoked. This will help prevent its misuse. The SC will need to find ways to ensure that the provision is curtailed and how to prevent its misuse.
A cut and paste provision:
Section 66A was passed in a great hurry in 2008 by Parliament. It had become a cut and paste provision. However the ambit of such a cut and paste exercise on freedom of expression was not properly analysed.
With so much hue and cry the government did issue an advisory that no arrests can be carried out without prior permission of the home department. The only difference we find today is that cases are being filed, but no arrests are being carried out. This has not stopped the invocation of the section.
There is an absence of capacity building among the police. More often than not the police inspector in some police station will be highly inadequate when he tries to interpret the limit of Section 66A.
In such a scenario Section 66A becomes a good tool to target and silence opponents and critiques who speak uncomfortable but true facts. The Section provides an invisible wand to kill free speech on the internet.
The never ending trauma:
There are no specialized cyber crime courts in the country and this means that the cases are tried before the regular courts. From the time the FIR is registered and till such time the matter decided by a criminal court it takes years.
By the time the case is completed it takes years and this instills a great deal of fear in the mind of the individual and also damages him or her mentally. Over all it has an immensely damaging and dampening impact of many others in his circle and a direct assault on free speech on the internet.
The government has made the first move and has shown its intent. Now it is up to the Supreme Court to adjudicate the constitutional validity of Section 66A of the IT act.