Events & Issues

New Delhi, 1 April 2015

Section 66A, IT Act

CRASS MISUSE & DEMISE

By Dr S Saraswathi

(Former Director, ICSSR, New Delhi)

Three cheers to the Supreme Court. It has declared Section 66A of the Information Technology Act 2000 as unconstitutional – a section that has been used to stifle dissent and criticism of politically influential personalities. The judgement has restored freedom of expression (FOE) that was seriously threatened by misuse of this section.

The section provides for action against people for posting through a computer resource or a communication device any information that is “grossly offensive” or has “menacing character”. It uses vague terms like “causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill-will” for the  information circulated to come under its purview.  The punishment for sending such information is imprisonment up to three years with fine.

Even a cursory glance through this section may show that the terms used are so wide and vague and incapable of being understood in precise meaning or examined on objective standards.  Its use and misuse to curb any semblance of opposition or criticism of power holders seems to be written into it.

Who piloted the bill adding this section to the IT Act 2000 in the year 2008 has now become an issue which further confirms the role of political bosses in controlling FOE. It was a strategy to regulate communication through internet that had become a powerful mass media for dissemination of information and exchange of views. Social network has become a household tool and a constant medium of contact for the users often to the annoyance of public figures and leaders when they become the subject matter. Obviously, the potential influence of network was not foreseen a few years back. The advantages were so vast that the embarrassment it can cause was overlooked.

The judgement is hailed as a landmark in the history of mass media that remained crippled for quite some time and was struggling to regain its freedom. 

Internet technology has the ability to dramatically mobilize people from any part of the world and reach messages instantaneously.  Content sharing plays a major role in building support and opposition to individuals and parties/groups.  It can build influence or destroy popularity; can create positive or negative images.  When content sharing is fast, uncensored, and global, people who make news in any capacity have to be ready to face all kinds of remarks. Technology has transformed the right to free speech and expression from a largely private right into a public one.

Political leaders in democracies are particularly vulnerable to comments and criticism. They want a friendly media all the time.  It is said that “social media is about sociology and psychology more than technology”. The Court has liberated the sociology of communication from the clutches of political power. 

Delivering the judgement, Justice Nariman stated: “Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any opinion dissenting with the mores of the day would be caught within its net”. He noted the decision to annul this section doesn’t confer any new right for citizens, but only upholds the fundamental right to speech and expression guaranteed by the Constitution. Such freedom, he said can be limited only by “strict exception”.

The judgement is based on certain grounds like lack of proximate relationship of the section with public order and lack of definite criteria for its exercise; adverse impact on the right to know; and failure to distinguish advocacy and discussion from incitement.   The weak and rather childish argument that it will be administered well was dismissed by the Court as invalid. The judge said, “Government may come and government may go, but Section 66A will always remain in the statute. Whatever is otherwise invalid cannot be held to be valid by making a statement that it will be administered well.”

Laws are interpreted letter by letter. Their application doesn’t depend on the good sense of the implementing authorities. The misuse of this section brought about its demise. The Indian Penal Code has several articles to deal with offensive speeches and communications. Public safety and stability of the State are prime concerns which cannot be weakened by any “rights”. Further restrictions are really not needed.

Since its adoption, Section 66A had been used many times to arrest persons for creating and circulating by words or pictures information unfavourable to the image of some political leaders. Even some cartoons meant for fun invited the wrath of leaders in Maharashtra and West Bengal posing a great threat to the survival of this art itself. Two girls were arrested in Mumbai for questioning the shutdown in the city for Shiv Sena leader’s funeral – a query often raised by citizens in similar circumstances in private conversations. The query is in public interest and needn’t have political implications or motives.

A school student was arrested in UP for posting on Facebook comments about a Minister on grounds it was “objectionable”. Such instances are many making a mockery of our freedom of speech and expression. Evidently, Section 66A would have put an end to the voice of dissent against establishment spreading fast with the use of social media. Influential people and celebrities particularly are scared of electronic information.

It is futile to attempt silencing internet communication. FOE is considered a basic human right. During the 80s and 90s, social protest movements across the world created an atmosphere for full-fledged communication rights. Without this right, freedom of speech and expression lose their significance.

Right to information is of no use without the right to communicate.  Freedom of speech is meaningless without access to obtain information. All these rights are inter-linked and form an integral part of human rights. A global movement is going on to assert this right.

A Campaign for Communication Rights in Information Society emerged and with the People’s Communication Charter and the Platform for Democratisation of Communication came to be known as the Right to Communicate Group. The World Summit on the Information Society held in 2003 and 2005 provided a global platform for pushing communication rights. This right has been at the centre of many freedom struggles for democracy, civil rights, social justice, participation, empowerment and so on. In this global context, any attempt to stifle free communication in India is totally outdated.

In the EU and the US, limits are placed on free speech to prevent hate speech, defamation, threats, etc. Social media played a crucial part in provoking London riots, and in the struggle called Occupy Wall Street. Every country applies its own laws to keep freedom of speech and expression within democratic limits so as to protect equal rights of all. India has sufficient legal provisions and instruments to safeguard the reputation and rights of individuals against circulation of falsehood and offensive information by anybody.    

Internet is invading the area of traditional media of communication among people of all age-groups except perhaps the very senior.  Social networking has become part of life. No wonder, it has become the medium for political debates, exchange of ideas, and mobilization of support for and against individuals/parties. It provides a participatory role for citizens on public issues as a daily routine. Best use must be made of this tool to promote constructive ideas and build a knowledge society. Misuse of this tool to malign opponents and crush differences must be severely dealt with under our existing laws. ---INFA

(Copyright, India News and Feature Alliance)