The arrest of two Mumbai Girls for their Facebook Posts u/s 66 A of the IT Act brought into focus the likelihood of misuse of the provision and usual hue and cry over such incidents ranging from either legislating new laws or expunging existing laws from the statute book. Satvik Varma takes a look at the various facets of the controversy

The arrest of Shaheen Dhada, who posted an innocuous comment on her Facebook page, and her friend, Rinu Srinivasan, who ‘liked’ her comment, has again brought to the fore the debate about the freedom of speech and attempts to curb it.

By all accounts, the arrest was unjustified, disproportionate to the alleged violation of law, and a perfect example of the arbitrary exercise of executive power. Legitimate questions are being asked whether the haste with which the Maharashtra police acted was on account of political pressure. One wonders whether any case, at all, had been made out for the authority to grant the judicial remand of these twenty something’s. Thank God, these girls were granted immediate bail. Now if only the charges against them are dropped with equal immediacy!

Despite any of the above, to say that Section 66A of the Information Technology Act, under which these girls were charged, is a “perverse provision of law” and hence should be abolished both undermines the law making process and wrongly assumes that the law was legislated only with the intention to check free speech online.

In due course, one will have clarity on this matter since a young law student has filed a Public Interest Litigation (PIL) in the Supreme Court of India and the Apex Court issued notice on the petition indicating that it is inclined to examine the provision and its legal sanctity. Hence, at this stage, it would not be appropriate for one to pass any conclusive opinion on a matter which is sub-judice.

Notwithstanding, as a defender of the rule of law, one submits that just because an administrative authority acts in an arbitrary manner is not sufficient argument to call for the striking down of a statute (provided of course it stands the test of legal scrutiny), especially since purported arbitrary action will itself eventually be struck down by courts. In fact, this is a matter which has often been reviewed by the Apex Court and it has held that, “the duty to act judicially excludes arbitrary exercise of power and it is, therefore, essential to the rule of law that the duty to act judicially is strictly observed by the administrative authorities upon whom it is laid. If any departure from the observance of the duty to act judicially could pass unnoticed, it would open the door to arbitrariness and make a serious inroad on the rule of law.”

The Apex Court has also held that “. . . the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that the decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he stands.”

A reminder of the above cited judicial decisions assumes importance in light of the recent notification and guidelines issued by the Ministry of Information & Broadcasting acknowledging that executive authority entrusted with implementing Section 66A may have exceeded its jurisdiction and acted in breach of the powers vested in it.

The Ministry has issued guidelines that action on a complaint under this section may be carried out only after a police officer of the level of an Inspector General grants his approval. During a recent debate on the subject in the Parliament, Mr. Kapil Sibal, Minister of Communications and Information Technology, stated during question hour that “we will soon be sending advisories to state government that inspector, or sub-inspector level officers should not use section 66(A) of the IT act without any order from senior level officers.”

Unfortunately, none of the above appeases the opponents of Section 66A who will settle for nothing short of it being expunged from our statute books. In this context, it may help to trace the history of the provision. Introduced in 2008, the intention behind Section 66A was clearly to check the growing menace of irresponsible electronic essages/communications. This Section punishes with imprisonment and a fine, any person who sends information that is grossly offensive, has a menacing character or which causes annoyance, inconvenience, insults, or promotes hatred or ill-will.

Admittedly, the inclusion of annoyance and inconvenience can lead one to believe that the Section is broadly worded. But benefit of the doubt needs to be given to the draftsmen who recognised the rapid pace of technological development and their inability to comprehensively cover all offences, and hence judiciously enacted a broad provision.

The main argument against this Section is that it is a bad job of cut-and-paste from foreign legislations and is beyond the scope of reasonable restrictions on the exercise of free speech, provided under Article 19(2) of the Indian Constitution. Another criticism is that it criminalises conduct, in excess of what constitutes an offence under the Indian Penal Code. It’s argued that, a verbal insult or annoyance is not an offence, then why should the same thing, if done using an electronic medium, be deemed a crime?

As stated above, most of these are matters now pending before the Supreme Court and hence it would not be proper to comment upon them. However, what one can say in defence of the Section is that the anonymity of the online world necessitates that electronic communication which insults or is intended to cause persistent annoyance or spread falsehood must be treated as a crime. The words persistent and intended to cause insults as contained in the Section are important and usually get overlooked when debating the provision.

The comment of Shahee Dhada on her Facebook page when compared to what else one reads online is rather benign. If at all the subject of her post, a revered local leader, may be perceived as being ill-timed, especially since the law stipulates that the character of every act depends on the circumstances in which it is done. However, even that does not make out the offence for which she has been charged. Her case is easily contrasted from that of the tweeter charged in Karti Chidambaram’s complaint, under the same section. There, Mr. Srinivasan, a self-confessed India Against Corruption supporter, opposed to the ruling government, made personal allegations against Chidambaram and persistently published grossly offensive information intended to spread ill-will and hatred about him. Should there be no law that regulates such action?

Confronted with these current day challenges, the Supreme Court recently re-examined the delicate balance between the freedom and restrictions and noted that freedom of speech is essential for the proper functioning of the democratic process.

It held freedom of speech and expression as the first condition of liberty and one which occupies a preferred position in the hierarchy of liberties. Liberty of thought enables liberty of expression. However, the Court notes that rights are not absolute and uncontrolled in operation and the existence of every right is coupled with a corresponding duty. There has to be a balance and proportionality between the right and restriction on the one hand and the right and duty on the other. It would create an imbalance if undue emphasis is placed upon the right of a citizen without considering the significance of the duty. Thus all freedoms, including the freedom of expression have to be examined with reference to the concept of fundamental duties and non-interference with liberty of others.

One has the right to express and dissent, but does that include the right to insult, offend and disparage? Just because the viral world offers no physical contact, does that mean it requires no checks on what one can say or does?