Post-Guidelines India: 8 reasons why the new Section 66A guidelines are not enough

by Shehla Shora

On 29 November, 2012 the Minister for IT, Mr. Kapil Sibal called a multi-stakeholder consultation with representatives of government, businesses and civil society to break the deadlock on Section 66A of the IT (Amendment) Act of 2008. Owing to lack of a clear agenda or even as much as a heads-up to participants, the major part of the meeting was dominated by a discussion on IT Rules of 2011 which was nevertheless useful and important. Premeditated guidelines aimed, supposedly, at preventing the abuse of Section 66A were issued at the meeting without taking on board the concerns of civil society. One of the positive outcomes of the meeting, however, is that the Minister agreed to have regular consultations with Civil Society roughly every quarter to discuss relevant issues.

While speaking to the press, I had maintained that even though we welcome the new guidelines (something was definitely better than nothing) the law needs to be amended. Right after the meeting, my comment may have sounded premature and unfounded but I had reasons to take that stand. I will not spend much time elaborating on what all is wrong with the section because anything that I say will be redundant. I will, however, list the reasons why the new guidelines, which do not have the force of a law, are not expected to change much on ground.

1. Ambiguity: The purpose of Section 66A is not clear even to senior cops- I can say this with some amount of certainty because the purpose of the section is not clear even to many experts. The Minister recently said in an interview with Ms. Barkha Dutt that the section is for protection of women”. My colleague, Richa, explains in this post why that can’t be true. Is this section really meant to protect women? If yes, the wording of the Section should make that clear. Is it meant to prevent cyber harassment? If yes, it should apply to unsolicited, directed communication and should include precise, yet foolproof, tests for what constitutes harassment. Again, if it’s meant to control spam, then it should clearly define and penalise the act of spamming”. How else is a cop- senior or junior- supposed to know what the law is meant for? How can a senior cop prevent the abuse” of a law the precise use” of which he is not sure about?

2. Umbrella Provision: Section 66A has been used in a wide range of cases from cyber squatting, defamation, blasphemy, obscenity, impersonation, stifling political criticism, criminal intimidation and so on. In all of these cases, it has been used either in conjunction with existing provisions of the Indian Penal Code (IPC) or as a substitute for missing crimes” like cyber squatting and political criticism! Wherever it is used in conjunction with other sections of the IPC, it apparently serves no purpose since the IPC already covers these offences. In cases where it has been used as a substitute for missing laws, it simply invents new crimes. How does uploading politically incorrect cartoons to a website amount to cyber harassment? (Ref: Aseem Trivedi cases) How does creating an image meme out of perfectly decent public photographs of politicians amount to cyber harassment? (Ref: Ambikesh Mahapatra case) How does criticism of a bandh” (shutdown) amount to cyber harassment? (Ref: Shaheen Dhada case) How does booking a domain name like prat​i​b​ha​p​atil​.com”, which would perhaps qualify as a case of cyber squatting in the US, amount to cyber harassment? (Ref: prat​i​b​ha​p​atil​.com case).

And, finally, how does sending a birthday cake to a girl with her picture on it amount to cyber harassment, if that’s what Section 66A is for? This arrest took place after the guidelines were issued. Even if the absurdity of the case were to be ignored and it were to be discussed technically, it’s still clear that the law was invoked without application of mind. The cake was sent physically, and not through any electronic medium and the cake” was not, by any stretch of imagination, a grossly offensive” message, unless the parents considered their daughter’s picture offensive. The point being, that the new guidelines clearly haven’t helped anyone.

3. Hatred ≠ Hate Speech: In addition to women protection”, hate speech is another favourite excuse to justify Section 66A. As I said above, Section 66A invents new crimes such as causing annoyance, insult and inconvenience even though we are well within our Constitutional right to offend, annoy, inconvenience or even insult institutions, practices, individuals, etc. as long as it is within the limits of decency and does not border on hate speech. Even potentially violent speech must pass various tests like public nature, impact, incitement to violence, incitement to discrimination, context, etc.” to qualify as hate speech but Section 66A, or the IT Act of which it is a part, does not have any such safeguards. In some cases, too much outrage, even violence, is seen over innocuous remarks made by someone on the Internet as happened in the Shaheen Dhada case. In these situations, it is the violent mobs that need to be controlled rather than free speech that needs to be censored. After all, anyone could take offence to anything and turn violent- that too in a country whose national hobby seems to be taking offence”.

4. Ineffective Cyber Police: Mr. Amitabh Kumar, who heads the social media wing of a Delhi-based women’s rights advocacy group, says that while handling a case related to the pornographic video of a trafficking victim uploaded to Indian porn site, Debonair Blog, in 2009 he contacted the Mumbai Police Cyber Crime cell (Delhi didn’t have one back then) but to no avail. He further adds that calling the numbers projected on the Cyber crime website was of no use as they would never answer! In sharp contrast, Mr. S. Ravi was arrested on the basis of a mere email from Karthick Chidambaram (incidentally, the son of senior Union Cabinet Minister, P Chidambaram). In fact, in most of the famous cases where arrests were actually made, a powerful figure or a politician was almost always involved in one way or the other. Such crass violation of the rule of law is bound to happen when interpretation of what constitutes gross offense” or menace” is left to the discretion of cops. Which brings me to my next point:

5. Senior cops have handled such cases before: In the case of Indian singer, Chinmayi, who was persistently harassed online the police commissioner of Chennai city was instrumental in getting the people booked under 66A and arrested. While the Chinmayi case does not present a black and white picture, there are some other controversial cases which were handled by ACP Netaji Shinde of the Pune Cyber Crime Branch including the one where an innocent man was detained for fifty days for no crime of his. In all fairness, I must admit that the new guidelines require a DCP” (senior to an ACP) to clear an FIR under 66A and that Section 66A was not introduced back then. At that time, such cases would be covered by Section 67 of the IT Act. However, even if the man were really guilty, he would have been guilty of uploading a picture of Shivaji in a bikini”. His bail application was rejected, he was not produced before a magistrate for a long time and he was forced to eat from the same bowl which he was supposed to take with him to the toilet!

6. Stating the obvious: If the police refuses to file an FIR, a case can be registered through the judiciary. This is what happened in one of the Aseem Trivedi cases (which I see as a complete abuse of 66A). So, as long as the section exists, it is open to abuse. In this massive country, there will always be that one senior officer who may, in all ignorance, book a person under Section 66A because he may have heard that it is used to arrest people for being offensive or blunt or even romantic- as happened in the birthday cake incident- on the Internet. With no offense meant to the honesty and dedication of senior police officers in general, there is always the possibility of being pressurized, even forced by powerful entities to take strict action against a dissenter. Let’s not be naïve, corruption is much more widespread than we would like to admit- so much so that we don’t think that it’s corruption anymore. What’s to stop a DCP level officer from acting in haste or under pressure or from acting maliciously?

7. Existing laws NOT good enough: India was caught off-guard in 2000 when the first cyber harassment case surfaced- an Indian woman, was being impersonated on an Internet chat room and the imposter, Manish Kathuria, was sending her phone number to people giving the impression that she is soliciting. Sadly, the existing provision- Section 509 which prohibits insulting the modesty of a woman”- was not sufficient as such an act did not constitute uttering of a word” or making of a gesture”, etc. as required by Sec 509 of the IPC. Even though it is often argued that existing laws can take care of cyber stalking, the truth is that Section 509 has still not been amended to include acts committed on the Internet neither does the IT Act include a provision dedicated to cyber stalking which is what Section 66A should ideally have been! The law of the land should extend to the Internet as well, even if no words were uttered” or no gestures made” and such silly loopholes should not allow perverts to escape proportionate punishment. Sadly, that’s not how our judicial system works and a lot depends on the wording of laws and their literal interpretation. Soliciting sex on someone’s behalf on the Internet should have been considered an online equivalent of uttering words” or making gestures”. So, to reiterate what I said, India does not have a proper law for cyber stalking, for women whom we so love to protect”! Even though Section 66A can deal with almost anything under the sun, it is not meant for the protection of women. I have been interviewing several women who have faced online abuse and not even one said that she was aware of laws that could come to her rescue! I have faced online abuse myself in almost all forms possible and at all levels thinkable, even unthinkable, and I was not aware of such laws either.

8. Conviction ratio too low: As was recently revealed in the Rajya Sabha, the number of people arrested under the IT Act so far is 1600 while the number of convictions is a shocking seven! Out of these seven convictions, only three are significant cases. Such a law would very clearly fail to act as a deterrent for hardcore criminals but the fact that Sec 66A is cognisable would make many respectable, law-abiding citizens think twice before posting even harmless opinions online. As they say, the law is like a spider web: the smaller flies get caught while the bigger ones pass through.

Until a proper ecosystem in which senior cops or judges understand cyber law and cyber crime, the new guidelines are not expected to change much. Also, the law should be framed in such a way that any police officer can interpret it correctly and not just a DCP or a DIG.