Problems are with Sec. 66A and not with its implementation

A version of this article was published as an Op-ed in the Indian Express on November 26, 2012.

The debate about Section 66A of the Information Technology Act, 2000 is becoming sharper by the day as more cases of its abuse surface. The key question to be probed is whether the individual actions under the provision are isolated instances of abuse or if the section itself flawed. Let us first look how Section 66A came into being; what was the intention of the legislature in making a provision which has come in for such sharp rebuke by civil libertarians.

Since the Information Technology Act was first made in 2000, there were regular reports of cyber crimes and the lax enforcement which surrounded them. This was in no way helped by frequent media reports which sensationalized criminal actions online and warned of an impending flood of pornographic MMS’s. This concern was reflected in the report of experts which considered an amendment to the Act where several new offences were introduced. However Section 66A was still to make an appearance. When the first amendment bill was prepared in 2006, the provision appeared all of a sudden without any explanation or a legislative note to explain its presence. Even the parliamentary committee which examined the draft Bill was silent as to the language of the section only recommending that offences under the amendment should be made cognizable though bailable. The effect of this is felt in individual cases today when the police can take cognizance of an offence and ask for custody but the alleged offender still has the right to seek bail on arrest.

These changes were finally sanctioned and Section 66A came into law when the amendment bill was passed alongwith seven other bills in seven minutes on 23rd December, 2008 on the last day of the winter session of the 14th Lok Sabha. This exercise in legislative efficiency is shocking given the language of Section 66A is completely at odds with the constitutional guarantees to freedom of speech and expression. Even a cursory look at it would have warned our legislators as to the effects which are being felt today with prosecutions launched all over the country for facebook statuses and tweets.

Section 66A is divided into three subclauses where the first subclause targets, any electronic communication which is “grossly offensive” or has “menacing character”. Both these terms are not defined and not even present in the Indian Penal Code from which the legal ingredients of most offences can be fished out. This reoccurs in the second sub-clause which makes, any false information which causes “annoyance, inconvenience, danger…” punishable. There are many more terms under this sub-clause which contains a laundry list of terms such as “insult” and “ill will”. Even these are not defined. This clearly demonstrates the law is vague and goes against a cardinal principal in drafting of criminal statutes that the law should be defined precisely. Moreover the section lacks coherence and often looks to be a provision to be in search of an offence. It is no wonder that in most cases it is used as a residuary provision, added to the heap of sections already contained in a FIR. In the past the section has been used in such a manner in cases of alleged blackmail over email, dowry harassment, defamatory internet content and even copyright infringement. These cases predate the recent cases against Aseem Trivedi for posting cartoons online, Jadavpur University Professor Ambikesh Mahapatra for parodying Sonar Kella to mock Mamata Banerjee and the recent case in Thane where two girls were arrested in connection with a status message on facebook which questioned a bandh following the death of Bal Thackrey.

In all these cases, Section 66A is not the only section being used and it is used in addition to the existing criminal offences. Most of such offences are contained under the Indian Penal Code, a colonial statute displaying the best Victorian sensibilities containing offences for defamation, outraging the modesty of a woman by signs and gestures, obscenity etc. One notices that such offences are well defined in the statute itself and do not suffer from the infirmities of Sec. 66A. Hence in many ways not only is Sec. 66A superfluous but due to its shoddy drafting will continue to be used to criminalize speech which was not considered actionable under law even in the 19th century. It is also somewhat curious that Sec. 66A only applies to online communications the same speech if made without an electronic device is not criminal. These problems are not problems of overzealous prosecution in some isolated cherry picked cases but systemic flaws prompted by shoddy drafting. Such vague drafting is almost Kafkaesque and is at odds with the reasonable restrictions which can be placed on the exercise of free speech. In this instance the law is not an ass it’s a blood hound.