In February 2009, a few months after the close of the 2008 winter session of parliament, Pranesh Prakash from the Centre for Internet and Society in Bangalore wrote that “Section 66A (of the IT Amendment Act, 2008) which punishes persons for sending offensive messages is overly broad, and is patently in violation of Art. 19(1)(a) of our Constitution.” It is inexplicable that there has been precious little engagement with this badly drafted law, which has had the ability to wreck online free speech and freedom of expression in India, for over 40 months by either the media or citizens.
Since early 2011, there have been at least five high-profile cases where Section 66A has been invoked. They range from Jadavpur University’s Prof. Mohapatra’s case which was related to a parody cartoon of Mamata Banerjee posted online who was arrested in April 2011, to Aseem Trivedi, who was arrested in September 2012 for posting ‘seditious cartoons’ of national symbols, to Heena Bakshi from Chandigarh, who was charged but not arrested, for posting ‘abusive remarks’ against the Chandigarh Police on Facebook, to Ravi Srinivasan who was arrested in October 2012 for a tweet that alleged corruption and more recently the Palghar arrests over a comment posted on Facebook and a subsequent ‘Like’ of said comment. While these are cases where the application of Section 66A has been criticised, there have been instances where there has been no such criticism - take for example, the arrest of Saravana Kumar Perumal for sexually harassing singer Chinmayi Sripada on Twitter.
A first order problem with Section 66A is that the restrictions it places on freedom of speech and expression exceed the reasonable restrictions that are laid down in Article 19(2) of the Constitution. Secondly, the wording of Section 66A is exceedingly vague and broad and many terms used including “grossly offensive”, “menacing character” and “annoyance, inconvenience” do not find definition with the Information Technology Act, 2000 and as such, do not find a parallel in the reasonable restrictions as mentioned in Article 19(2) of the Constitution. Thirdly, Section 66A seems to give rise to a duplication of offenses, many of which are already well defined in our existing penal laws and further, increase existing penalties for already defined offenses. Fourthly, Section 66A is applicable only to online communications and speech, which leads to an illogical outcome where there are different standards for restrictions on freedom of speech and expression online and offline.
With the recent citizen outcry and sustained action from various civil society organisations, the Government has issued a clarification that complaints under Section 66A must be approved by a DCP or/and IGP before they are registered. While this does sound like a reasonable clarification, it is worth recalling that the complaint made by Karti Chidambaram was made, according to various media reports at the time, to the Inspector General of Police in Puducherry, showing that it isn’t necessarily the protection it pretends to be. With the Supreme Court now having stepped in, a decision on the constitutionality of the section is inevitable.
Section 66A is a badly thought out and horribly drafted law that needs to go because clarifications cannot fix basic flaws of drafting that have given us a law that violates constitutionally guaranteed principles of freedom of speech and expression. Additionally, specific laws to regulate online speech lack a reasonable basis for such segmentation based solely on the medium, and existing laws more than suffice to deal with these matters both online and offline. Finally, we as citizens, have an obligation to engage with the law making process because, as the aphorism goes, the price of freedom is eternal vigilance.
Gautam John used to be a lawyer with a focus on copyright laws and has also been an entrepreneur. He works with the Akshara Foundation, where he manages the Karnataka Learning Partnership project, and Pratham Books. The views expressed in this column are the individual’s and don’t represent those of the paper.