This article was originally published in the Pioneer on November 28, 2012. In this I tackle the second argument which is made in the defense of Sec. 66A fails on the first (i.e. the problems are not with the provision but its implementation). The second argument is an appeal to emotion, stating that Sec. 66A helps in cases of online harassment and abuse directed towards women. Through this article I argue this is a disingenuous argument.
There are two classes of cases which are pitted against each other in the debate surrounding Section 66A of the Information Technology Act, 2000. Amongst other things, the section contains an offence for any electronic communication which is “grossly harmful” or has “menacing character”. The punishment for such an offence is three years; it is also extended to false communications which cause, “annoyance” or “inconvenience”.
The first case concerns an issue of free speech and the second concerns the boundaries that should be placed on them. A recent example of the first is the arrest of a person in Puducherry for tweeting on Mr Karthi Chidambaram allegedly amassing more wealth than Mr Robert Vadra. There are other instances of such use, with the provision being used against cartoonist Aseem Trivedi for posting his cartoons that supposedly lampooned national symbols online, against Heena Bakshi for allegedly using abusive language on the Facebook page of the Chandigarh Police, and against Jadavpur University professor Dhananjay Mohapatra for parodying Sonar Kella to poke fun at Ms Mamata Banerjee. The latest in the list is the recent arrest of two girls in Palghar, one for posting a status message protesting the bandh enforced due to the death of Bal Thackeray and another for liking it. All these cases show a tremendous intolerance of the state towards speech or of people who have a handle on the levers of power.
However, this concern for protecting the Constitutional guarantee towards free speech and expression is often called into question by the ostensible benefit the provision extends. The benefit is often made out by referring to a set of cases generally involving online abuse and harassment, which is directed towards women. One such instance is the prosecution which was launched against several people who allegedly directed abuse on Twitter at Tamil singer Chinmayi Sripad. Online abuse and harassment of women is widespread and disgusting, and there is no quarrel with the proposition that more criminal prosecutions need to be made for them. However, to use such cases to defend Section 66A is plainly disingenuous.
Section 66A, which is broadly framed, has offences without any definition, and that its application can be stretched to infinity was never intended to apply to cases of online harassment or abuse which is directed towards women. There is no mention of this in the deliberations of the parliamentary committee which made a report on the Amendment Act, 2008, by which Section 66A was inserted. This is further confirmed by the language of the provision itself, which does not contain any term that suggests the provision is intended to apply to such cases. Hence, if you, by the intention of the legislature, which is quite hazy, even though it can apply to every form of speech which may be little more than inconvenient to someone it has nothing which suggests it is for the benefit of women.
It is also relevant to state that many such debates cite such prosecutions as recognition of our Constitution’s qualified guarantee towards free speech, which is limited by the reasonable restrictions contained under Article 19(2). This is incorrect, as Section 66A is so broadly framed that it easily flows outside the grounds articulated as reasonable restrictions. In fact, it is an established judicial doctrine to strike down vague laws which are inherently open to arbitrary application.
Even now the Section 66A apologists will clutch onto the defense of provision by countering that in the absence of it, cases of online abuse and harassment will go unabated. Such a defence demonstrates a woeful ignorance of existing criminal statutes which have ample penal provisions for the protection of women. Just look at Section 509 of the Indian Penal Code which specifically deals with any word, gesture or act intended to insult the modesty of a woman. It can quite easily be applied to online harassment and abuse, and this makes Section 66A completely superfluous to the cause of protecting women online.
In sum, the “our sisters, our mothers” argument is little more than a crude attempt to divert the contours of the debate. If you want to open your mouths freely online then open your eyes to such obfuscation and resist it.
Just because of a few stray incidents, where our moral compass aligns with prosecutions under section 66A does not mean the provision is not vague and inherently prone to arbitrary exercise. As a general rule, beware of an argument which uses the concern of women and children to breach your civil liberties.