Since the 24th of this month, there has been a new sensation in India in the field of Cyber Laws. A two member bench of the Supreme Court of India on that day released a judgement on a set of petitions before it challenging the validity of Section 66A of Information Technology Act 2000 as amended in 2008 (ITA2008) as being in infringement of the constitutional right of “Freedom of Expression” guaranteed under Article 19(1) of the Indian constitution. The Court proceeded to strike down the section 66A as violative of the constitutionally guaranteed freedom of expression.
Since “Freedom of Expression” is a core principle respected in all democracies and is considered sacrosanct in the Internet world, the fact that the Court had upheld the right created a euphoria on the cyber space and people hailed the judgement as a “Land Mark Judgement Protecting democratic principles in India” etc. Even the political parties had to tow the same line that we appreciate the judgement. Most of the media reports also supported this view and some of the anchors even censored any contrarian opinions. It was considered politically correct to hail the judgement as anything said against it would be considered as “Opposing the Freedom of Expression”.
The objective of this article which will be followed by a series of articles is to vent an alternate opinion that the perception that Section 66A was violative of Article 19(1) was perhaps incorrect and therefore the judgement to strike down the section for that reason was a judgement issued under a mistake of fact. Additionally, it is felt that the section did have some beneficial features to protect against cyber stalking, cyber bullying, spamming and phishing which now have to be managed under other sections if available or from outside the ITA 2008.
This alternate school of thought are intending to request the Government of India to apply for a review of the decision to a larger bench of Supreme Court for
a) Withdrawing the striking down of Section 66A
b) To take such steps as may be necessary to prevent misuse of the provisions by Police and
c) To set up a mechanism such as setting up a “Netizen’s Rights Commission” to address the misuse any provision of ITA 2008 in the future.
To start with, I would like to reproduce the section that has been struck down:
Section 66A of Information Technology Act 2000 as amended with effect from 27th October 2009
Punishment for sending offensive messages through communication service, etc.
Any person who sends, by means of a computer resource or a communication device,-
a) any information that is grossly offensive or has menacing character; or
b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device,
c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages
shall be punishable with imprisonment for a term which may extend to two three years and with fine.
Explanation: For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.
At a very first glance, it is clear that this section is meant to address “Sending” of messages through an electronic medium and is focused on E-Mail and SMS/MMS based offenses.
Prior to this the earlier version of Information Technology Act 2000 (ITA2000) had addressed under Section 67, “Publishing and transmission of information in electronic form which was considered Obscene”.
Consequently, publishing of information which could not be considered as fitting into the description of Section 67 as “Lascivious”, “Prurient”, “tending to deprave and corrupt the minds of the persons who are likely to read..” was not considered as an “Offense”.
Since there were instances of Cyber stalking and cyber bullying which did not come under Section 67 as well as concealed and implied threats that could be sent through emails or sms messages or even missed calls or blank SMS messages, the persons who drafted the amendment considered a specific section to be inserted for Offenses through messages and came up with Section 66A.
At the time the section was drafted, there was no possibility of guessing that the section would be misused by Police and Politicians for filing cases on every incident of political opposition and lower Courts would not be able to check such attempts. As a result, political parties such as Shivasena in Palghar, (Maharashtra), Congress in several places and TMC in Bengal persuaded the Police to arrest and file cases under Section 66A for postings made on Facebook, For clicking the “Like” button on a Facebook post, for Twitter posts, for uploading of cartoons on websites etc. These resulted in a public outcry that the Section enabled muzzling of public opinion and is violating Freedom of Expression.
It is one thing to oppose the arrest of innocent persons such as the two girls in Palghar, the Cartoonist in Lucknow and a Professor in Kolkata and another to strike down a section of the Act and provide a loophole in law that can be exploited by other criminals. (P.S: I can categorically say that I support freedom of expression and has consistently opposed each of the above arrests in the past as readers of naavi.org know).
What was unfortunate was that in each of these cases the Police applied Section 66A and sought further action and Magistrates allowed custody upto 15 days or so so that the victims were actually punished without trial. If the magistrates had thrown out the complaints in the first place, no arrests would have lasted beyond 24 hours and the police-politician nexus could have been curbed.
The build up of the opposition to Section 66A was therefore as much a contribution of the inability of the lower judiciary to understand the legal provisions as that of the Police.
In my opinion since the law related to internet which many considered as a grey area, was mis-used because few people had clear understanding of the law. Politicians being clever as they always are, exploited the situation which was advantageous to them.
Some have tried to say that the section itself was introduced for political considerations. I disagree with this and donot want to credit the politicians of the then ruling party to have understood the potential of the section to curb political opposition and introduce it for that purpose.
The standing committee of the parliament felt it was necessary for a strong and deterrent cyber crime law and introduced the section which was later used as a weapon by politicians of the ruling party to harass their opponents.
What is strange in the current situation is that out of the several provisions introduced by ITA 2008 many of which may be as “draconian” if not more than Section 66A, the Court has singled out this section for the extreme step of striking it down sending out a signal to certain types of Cyber Criminals that “Common, we welcome you to play around”.
It is in this context that the undersigned wants to present the contrarian views about why this judgement is not to be credited as a “Land Mark Judgement” in the positive sense. If some one wants to call it so because of its adverse effect on law enforcement in India, may it we can let it pass.
…To be continued