a flawed act #Sec66A

Rarely has one single section of the law spurred such intense debate on issues of free speech and the limits which should be placed on it for internet communications. The section in question is 66A of the Information Technology Act, 2000 which provides for a three year jail term for offensive communications. However, the story is not that simple. Let us first look at the history of the provision and how it came into being. During the IT boom, when India was being recognised as rising internet superpower it came to be realised that the internet would no longer be solely used for exchanging information but it would also, to a large extend, be relied upon for transacting business.

Since the medium was global, the job to draft a model law which could be applied across national boundaries fell to the United Nations which drafted the Model Law on Electronic Commerce which India adapted to the Information Technology Act, 2000. The objective of this law was primarily to ensure the sanctity of the online world and remove the sense of anarchy which would have made online transactions unenforceable. However, along with the legal provisions to ensure the smooth flow of electronic commerce there were substantial derogations in the Act by which a separate chapter for penal provisions was inserted. These provisions, made amidst growing fears that the internet would ease under age users’ access to pornographic sites, essentially targeted sexually explicit content.

Along with it, there was a growing sense that the internet was not merely a medium for accessing information and a platform for building consensus, but also an instrument for voicing opinion and outraging against systematic failings of the State. To counter this tide of dissent, there was a growing trend to block websites that carried sensitive content that had the potential to “hurt  religious sentiments,” “spark riots” or contained criticism leveled directly at political parties and politicians. This concern though not expressly mentioned in government documents, is clearly documented in the number of requests (2319) for content removal made by Indian government (second only to the US) to Google which publishes this data in its annual Transparency Report.

Against this backdrop, a study was commissioned in 2006 to review the working of the Information Technology Act, 2000 that suggested certain amendments. The main concern was to update the law and prevent a repeat of a case that led to the arrest of the Baazee.com’s chief executive officer. This was a watershed case in the history of cyber laws. In 2004, Avnish Bajaj, the then CEO of Baazee.com, an online marketplace was taken to court because someone had used the site to auction a pornographic MMS. The seller remained anonymous but when the Act was invoked Bajaj was the only person who could be held liable.

Yet the amendment that was finally proposed to the parliamentary standing committee lamented that the law was too liberal and there was need not only to increase the jail terms in existing offences but to increase the number of offences as well! This led to the enactment of the controversial Section 66A that ironically finds no mention in the parliamentary report which spanned over 200 pages.

However Section 66A was still not made into law, which happened two years later, after Mumbai terror attacks in 2008. A Bill got passed in unseemly haste, in just seven minutes with eight other Bills, without any preliminary discussion. The illegality of Sec. 66A would have been apparent had the legislature in its wisdom paused and discussed the amendment which contained this draconian provision.

Even after Section 66A was notified into law in 2009 there it took time before its full impact unfolded. In retrospect, probably the constituency of the ‘easily-offended’ that exercises influence in the corridors of power had yet to discover Section 66A’s full potential. Even then, this section was being selectively used in cases of dowry harassment, financial fraud and even copyright infringement! Although not many such cases came to light during that period, these prosecutions demonstrated that Section 66A had infinite elasticity, promising a criminal remedy even if there was pin prick to someone’s delicate sense of proprietary.

Gradually, the worrying provisions of the Section 66A started to become apparent. Not only was it vaguely framed but this controversial piece of legislation, for the first time introduced several novel criminal offences that due to the absence of a definition could be applied with incredible subjectivity. Many a time, these criminal offences overlapped with existing criminal provisions that not only contained ingredients for the offences but also carried a smaller penal provision. For instance, the punishment for defamation which only carried a jail term of two years now became a jail term for three years, if such a communication offended or annoyed a person. Since one single piece of content or speech can lead to multiple offences, police officers started bunching together existing penal offences with Section 66A.

Though this may seem solely as one more criminal charge to an FIR, the effects were much more repressive given the procedure of criminal adjudication. Given India’s poor conviction rate, it is no surprise that the muzzling of speech is in the process of investigation by police and prosecution by the court as opposed the ultimate finding of guilt or innocence by a court. With the increase of jail term to three years under Sec. 66A many existing FIRs that contained penal provisions for lesser jail terms, suddenly became cognisable. In cognizable offence the police can arrest you without a court warrant. All of sudden, the police could arrest you for speech which it could not before.

The government’s defense to mounting criticism was that though Sec. 66A was a cognisable offence, it was bailable. Hence even though the police could arrest the accused, he or she still had the opportunity to seek bail from the court as a matter of right. However, is that a sufficient remedy or an adequate safeguard against an incredibly vague statute?

Another point to note is that Section 66A applies only to online communications. So a speech which can be considered legal in physical communications such as pamphlets or in addressing public gatherings can be called “illegal” simply because it is published online.

A batch of recent cases has demonstrated all these legal deficiencies and the vast abuse this provision. No doubt, these cases have spurred a public interest petition in the Supreme Court, seeking to challenge the constitutionality of Section 66A. The challenge does not only represent a continuance with the best traditions of freedom of speech protected by the Constitution but also  acknowledges the new-found democratisation and empowerment made available to young Indian population.  This is best put in a submission by the petitioners’ counsel when a query to her status and interest in filing the petition was raised by the bench. The learned senior counsel stated with a wistful expression, “Your lordships, the petitioner is a law student. She is also a user of Facebook. Unlike most of us…”

This article was originally written for the Financial World on November 30, 2012 before I appeared in the matter titled as Shreya Singhal v. Union of India which challenges the constitutionality of Sec. 66A. Though this article makes a passing reference to the case, the thrust of it is concerned with the implications of Sec. 66A and its legislative background. I believe a fair comment on Sec. 66A is in the public interest and I will continue with that, though in future I will not comment on the specifics of the case since that will be improper during the pendency of the proceedings.