Section 66A Information Technology Act 2000 introduced new crimes without definitions. Fundamental principle of criminal law is that there shall be a definition of criminality for which the state wants to punish. Ex-post facto legislation is not valid in criminal law.
Shakespeare wrote in Henri VI, Part 2, “let’s kill all the lawyers”. Had he been alive now and wrote this in twitter, he would have got arrested under Section 66A of Information Technology Act 2000, because it could be ‘grossly offensive’ or ‘cause annoyance’ to a class people. The Information Technology Act 2000 is undoubtedly a required legislation to tackle fast growing cyber activities including cyber crimes. The problems thrown up in cyber space are much more serious than those on physical place. The draconian power of Section 66A of IT Act 2000 as amended in 2008 can be understood from the incidents where the state or police abused it to arrest the common man.
In 2013 an Andhra Pradesh MLA from Chirala (Prakasham District) Amanchi Krishna Mohan used it to stifle the voice of civil rights leader Jaya Vindhyala; he got her arrested under this section using his clout with police officials. Jaya Vindhyala is a civil rights activist of PUCL, was critical on Facebook about the political activities of the local MLA. This incident reveals how the ruling party leaders use this section to silence the opponents. Vindhyala made certain critical comments against former Chief Minister of AP, K Rosaiah, who earlier represented Chirala constituency in the AP Assembly. The complainant in this case, the Chirala legislator incorporated those comments in his complaint. He alleged that such comments caused “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will” to him and the TN Governor. Interestingly, the comments were not made when he was Governor and Mr K Rosaiah never complained against such comments. If what Vindhyala wrote is defamatory and thus objectionable, there are remedies available in the existing legal regime. There can be a criminal complaint for defamation. Then Jaya will have the defence of truth and fair comment as provided in Section 499 of the IPC. Strangely Section 66A does not allow any such defence. If truth defames a person, it is no defamation, but if truth annoys person the person who told truth will be jailed! Fair comment is also a defence. Even if a citizen passes a critical and defamous comment, he can escape liability by proving his comment as fair. Such defence is not made available to the netizen under section 66A. Is this the new rule of freedom of expression? The change in the medium cannot change the basic principle of law. Citizens using net to express cannot be subjected to additional restrictions which were not tested under the Constitution.
Freedom of speech is an essential component of free democracy because it facilitates the conflicting political ideas to reach the people. If dissent and criticism against the political parties and their leaders is not accommodated, the people will be deprived of their wise choice of electing a representative. Using Section 66A to snub the political voice is straight away breach of democratic norms. It is an indication that tomorrow its victims could be political opponents and also media. It has an inherent capacity of being misused by persons in high offices against powerless ordinary persons.
A scholar of law, Shreya Singhal, challenged the constitutionality of this section, filed a fresh application in the Supreme Court pointing out that the Facebook timeline includes her “petitions submitted under the RTI Act, the PUCL factfinding committee’s reports, a legal notice sent by the MLA’s counsel, and her reply to it.” The case is being heard for the last two and half years. The Government pleaded that more powers are needed to protect people from the abuse of cyber space, which has serious and damaging effect worldwide, depriving possibility of repair once damage occurred.
Presenting on behalf of Government of India, the additional solicitor general Tushar Mehta told the Supreme Court that “there was a need for a mechanism to put checks and balances on this medium”, because the Internet doesn’t “operate in an institutional form….Considering the reach and impact of medium, leeway needs to be given to legislature to frame rules. On the Internet every individual is a director, producer and broadcaster and a person can send offensive material to millions of people at a same time in nanosecond just with a click of button.” Mehta also said that the vague wording of Section 66A, which said ‘grossly inoffensive’ content could land someone in prison for three year, was not a good enough reason to get rid of the section. It should be noted that previously the court had commented on the vagueness of the term “grossly offensive.”
The apex court had expressed concern that a person could be jailed under the Act which remained largely subjective. “How long will a gentleman remain in jail? He may remain in jail till a judge of the Supreme Court or any other court will apply the judicial mind,” the bench has rightly asked. The bench also asked the ASG who would decide what constituted grossly offensive content. “Of course, it is the SHOs and other policemen,” it said noting that the police in India are not cyber experts. In the earlier hearings, Mehta had given examples of how the Ministry of Defence and External Affairs, received emails that were designed to hack and steal information from the ministries, in an effort to convince the court that Section 66 was needed to prevent such activities. The court was however not impressed and had pointed out that this eventuality was already dealt with viruses and hacking for which Section 65 of the IT Act was relevant. During hearing the Supreme Court rightly advised the state against stifling the voices of people through this new weapon.
There are several incidents where the draconian section is abused. The arrest of two girls Shaheen Dadha and her friend Renu Srinivasan, for a comment posted on Facebook questioning the hutdown of Mumbai after the demise of Shiv Sena founder Bal Thackeray, raised the flag on the abusive power of this section. The government considered their comments as ‘unwarranted’, ‘hasty’ and ‘cannot be justified’. The ministry defended it in response to a PIL against Section 66A saying the Thane police SP (Rural) has been suspended for arresting the two girls despite an instruction by the IGP not to do so.
Let us see some more incidents in the past leading to arrest of ordinary persons:
These are all ordinary persons. Had they been from media, journalists would have agitated against this misuse. The media cannot forget that they are equally vulnerable because all their writings in print media and videos on TV channels are part of websites streaming them. Any comment in print medium if appears in web newspaper also, it will attract the IT Act.
Let us see the full text of section 66A: “Any person who sends, by means of a computer resource or a communication device,—
A communications device in this context would also include a smartphone, a mobile or even a social media post, which expands the scope of crime and includes every ordinary activity like ‘liking’ or passing a comment, could prove dangerous. This section introduced new crimes without definitions. Fundamental principle of criminal law is that there shall be a definition of criminality which the state wants to punish. Ex-post facto legislation is not valid in criminal law. It is a fundamental right of a person not to be punished for an act which is not defined prior to the commission of that act. In addition to IPC, this IT Act created new crimes, without explaining the citizen what that exactly means. As Supreme Court rightly asked none knows what is grossly offensive, what is menacing? There are several other open ended expressions like causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidated, enmity, hatred or ill will which are now new expression crimes. None know which annoyance would land him in jail? If one causes inconvenience in real world, it is no offence. But the same will lead to three year imprisonment if it happens on a cyber medium. Article 19(2) prescribed certain grounds for imposing reasonable restrictions on freedom of expression. These expressions.. ‘causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will’…do not constitute neither ‘defamation’ nor any other crime.
Section 66A of Information Technology Act draws a distinction between citizens and netizens and if a citizen happens to be a netizen, his fundamental right to freedom of speech and expression under Article 19(1)(a) gets drastically curtailed. Like freedom of life the freedom of expression also is a fundamental right and thus it should have been guaranteed to ‘persons’, instead of confining it to ‘citizens’. That freedom got further shrunk with Section 66A. Threat to public order, defamation, incitement to offence, contravening decency and morality, committing contempt of court, etc, are listed in Article 19(2) as grounds to limit freedom. Curbs on speech cannot go beyond this. Section 66A differentiates citizens from netizens and is very harsh on the later. The freedom generally guaranteed under Article 19(1)(a) to citizens including general media now is curbed as far as netizens are concerned. If netizens make comments which could be made generally by citizens, they can be arrested. This is where Article 14 is also violated. With every newspaper being posted on websites and TV programs linked to Youtube, the difference between citizen and netizen is almost blurred and every citizen can be in the line of fire.
When Justice Markandeya Katju and media critics made more severe comments than the Maharashtra girls, they were not arrested. They should not be arrested. In the same stretch, the simple and ordinary people also should not be arrested. While general criticism is protected under Article 19, why should the same on cyberspace lead to immediate arrest? If a critic defames a minister, the latter has a right to file a criminal or civil defamation case, for which arrest is not necessary.
The Indian Penal Code and other provisions of the IT Act, especially after the 2008 amendment, provide enough safeguards against defamation, intentional insult leading to breaking the peace, incitement to commit offence, etc. Political criticism always causes some annoyance to someone. Ruling party and Opposition members routinely say unflattering things about each other. Should they be chargesheeted, too? The basic idea behind freedom of speech is to allow divergent critical views without looking into whether people are annoyed or inconvenienced.
Criminal defamation is a lesser offence with maximum of two years imprisonment prescribed under Section 500 IPC. But under the IT Act, the same could be punished with three years imprisonment and a huge fine.
Section 66A has changed the definition of defamation. According to Section 66A several new ‘expression’ crimes have been introduced. One cannot annoy, pass unwarranted comments, or offensive comments, cannot insult, ridicule etc. They were never part of any crime in any criminal law anywhere in the world. Section 66A is absolutely draconian as it gives rulers a weapon to misuse and deprive citizens of their personal liberty. Thus it not only violates Article 19(1)(a) but also Article 21, the right to life and liberty. If Section 66A is used, it will foreclose debate and discussion. Today netizens are victims, but next journalists will be threatened, as most of their writings are uploaded on the internet, too. This is a potential tool in the hands of rulers to curtail the voice of opposition. It is fatal for the freedom of speech of netizens in general and the press in particular. Instead of defending it the Government should delete it.
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