The increasing application of the loosely framed Section 66A of the IT Act and consequent police action raises a critical concern. Tanvi Bhatikar finds that its frequent clubbing with laws related to other cognizable offences poses a grave threat to the freedom of all citizens. 

When Devu Chodankar claimed on a social networking site that, if elected, Narendra Modi was likely to unleash a ​‘holocaust’, little did he know that his staunch opinions would land him behind bars. ​“If Modi is elected as PM this election, Christians will lose their identity in South Goa. Mark these words”, the marine engineer from Goa, based in Mumbai, had posted on Goa+, a Facebook group, before deleting the post.

Chodankar was booked under sections 153‑A (promoting enmity between different groups), 295‑A (injuring or defiling place of worship with intent to insult the religion of any class) of the Indian Penal Code (IPC), section 125 of the People’s Representation Act (promoting enmity between classes in connection with election) and 66‑A of the Information Technology Act. While he managed to delete the post, Chodankar justified his actions on another popular forum, ​‘Goa Speaks’ by calling it his crusade against the ​“tyranny of fascists”.

While the Constitution already provides for sufficient laws against defamation, insults and inflammatory speeches, Section 66‑A is the latest addition to the Information Technology (Amendment) Act (2008) initiated to scrutinize the use of offensive language through communication services, mainly the Internet.

The fuzziness of Section 66‑A

As per this section of the Act, ​“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;

> 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 three years and with fine.”

Perhaps the greatest danger of a provision such as 66‑A, and what also generates widespread criticism and uproar, is its loose definition. To begin with, phrases such as ​“grossly offensive”, ​“menacing character” or ​“annoyance/​inconvenience/​insult” have been privy to subjective interpretations and misuse.

Chodankar is not the only one to have faced the brunt of the obscure nature of the law. In 2012, two girls were arrested in Palghar under the same section of the Act for their comments on Facebook against the closure of shops in Mumbai in the wake of Shiv Sena supremo Bal Thackeray’s death. Although the duo was later released on bail, the incident brought to surface the draconian nature of the law.

In more recent cases, Congress loyalist Amaresh Mishra was arrested by the UP police for his objectionable posts on social networking and microblogging sites against BJP’s prime ministerial nominee Narendra Modi and Rashtriya Swayamsevak Sangh (RSS). Yet another 23-year-old youth from Bhatkal in Karnataka was arrested in Bangalore for spreading morphed photos, perceived to be anti-Modi, on instant messaging service Whatsapp.

Section 66‑A has faced widespread criticism from civil society activists, lawyers and citizens who consider it to be a violation of the freedom of expression. Several Public Interest Litigations (PIL) have also been filed seeking the amendment of this act, one of the prominent cases being that of Delhi-based law student Shreya Singhal.

In November 2012, Singhal along with her counsel Mukul Rohatgi, filed a PIL in the Supreme Court challenging Section 66‑A, asserting that ​“the phraseology of Section 66A of the IT Act, 2000 is so wide and vague and incapable of being judged on objective standards that it is susceptible to wanton abuse” and hence, could be seen as violating Articles 14 (equality before law), 19 (freedom of speech and expression) and 21(protection of life and liberty) of the Constitution.

Among the other petitioners is the People’s Union for Civil Liberties (PUCL), which has, in its petition to the Supreme Court, stated that the provision is unconstitutional as it offends several fundamental rights.

Baijayant ​“Jay” Panda, a member of parliament belonging to the BJD in Odisha, had also introduced a Private Members’ Bill seeking amendments to Sec 66‑A. In his policy positions stated on his website, the MP draws attention to the need to ​“to narrowly delineate the contours of situations under which free speech on the internet may be restricted. In its original form, Section 66(A) uses expressions such as ​‘grossly offensive’ which are highly subjective and leave immense scope for misinterpretation by law enforcement agencies.”

The erstwhile UPA government, in response to Singhal’s petition in the Supreme Court, maintained the constitutionality of Section 66‑A; it cited the ​“Advisory on Implementation of Section 66A of the Information Technology Act 2000” issued by the Department of Electronics and Information Technology on January 9, 2013 to the Chief Secretaries and the Director General of Police of all States/​UTs. As per the advisory, the police cannot make arrests under Section 66‑A of the IT Act, without prior approval from an officer not below the rank of Inspector General of Police in the metropolitan cities or Deputy Commissioner of Police, or Superintendent of Police at the district level.

But this, in itself, has become a matter of contention. While the move was expected to reduce the number of frivolous complaints and cases brought to the court, one cannot deny the possible abuse of power it brings with it. Secondly, it places within the discretion of each senior official the decision on what could be interpreted as ​‘menacing character’ or ​‘grossly offensive’, thus adding an element of personal bias.

T.N Mohan, the Director General of Police (DGP) in Goa told India Together, ​“As a result of the Supreme Court verdict, the police have been presented with a large amount of discretionary power to whet complaints. It falls upon the official in charge to decide which complaint can qualify as a case. A law cannot give too much power in the hands of government officials. You cannot control the situation by hiking the amount of power given to the police“.

Mohan ascertains the fact that there is no particular limitation to the kind of complaints that make it to the Police, which is an added constraint for them while evaluating cases. ​“The complaints are too many and we find it difficult to separate the wheat from the chaff. Secondly, due to the vague nature of the law, even frivolous cases like those against the girls in Palghar can be registered. Such a law affects the freedom of speech and the law makers need to really put their heads together to amend it,” he states.

The Centre also sought to justify the legality of Section 66‑A on the ground that it has been taken from Section 127 of the U.K. Communications Act, 2003. However, there are clear discrepancies between both the laws. For example, punishment as per the UK law is a maximum of six months’ imprisonment while in India, this term can go up to three years.

Apar Gupta, lawyer and partner with the law firm Advani and Co. and a frequent commentator on issues of media, technology and civil liberties states, ​“Due to the vague and undefined purported offences contained within the Section 66‑A of the IT Act, the power to punish speakers and writers through arrest and threat of criminal trial is granted to complainants with offended sentiments and police officials. Such criminalisation of speech over the Internet and mobile phone communication is contrary to Articles 14, 19 and 21.”

Gupta points out that the section penalises and restricts online speech to a much greater degree than offline speech, restricts it in an unreasonable manner contrary to Article 19 (1) (2) of the Constitution of India and that a significant proportion of the offences in Section 66‑A do not even fall within the permissible categories of restriction in Article 19 (2).

Anja Kovacs, who heads the Internet Democracy Project in Delhi, echoes Gupta’s sentiments. ​“The section is framed in a way that is far too vague to be acceptable in a democracy, and runs the clear danger of coming in contradiction with the Constitution. There is a possibility that the Supreme Court will narrow the reading of the section. However, especially for a law that touches on one of the core freedoms in a democracy, that of the right to freedom of expression, this is not sufficient from the perspective of a citizen,” she states.

Getting arrested is easy!

There have been a plethora of gag cases over the recent past and with the growing influence and use of social media, the frequency with which the Section 66‑A of the IT Act is being deployed, is also increasing. But it is not just the fuzzy wording of the law that is moot here.

An issue of equal concern is that the 66‑A is often used in conjunction with other sections of the Indian Penal Code (IPC), such as Sections 504 (intentional insult to with intent to provoke breach of the peace), 153‑A, 499 (defamation) etc. These laws usually cover major offences and most of the times, the application of the 66‑A is found to be redundant in these.

The fact that the procedure to lodge a complaint is the same as any other procedure i.e, by filing a First Information Report (FIR), adds to the ease with which this section can be used. ​“The only differentiation between 66‑A and the rest of the laws is the use of medium of communication,” Mohan mentions.

Speaking about the recent case in Goa, he mentions that Devu Chodankar was charged under Section 66‑A only due to the use of the Internet, while the actual offence was registered under 153‑A, 295‑A of the Indian Penal Code (IPC) and section 125 of the People’s Representation Act.

Kovacs points out that all these sections of the IPC deal with cognizable offences, that is, where no warrant is needed for an arrest. 153A and 295A are also non-bailable. ​“By clubbing 66A, with its broad, rather vague ambit, with sections such as these, you thus ensure that people can end up being arrested without bail even for relatively minor offences. 66A allows the boundaries of sections such as 153A and 295A to be stretched in that sense. Whether the courts will uphold the charges is of course another matter.”

Kovacs is also vocal about the repressive nature of the sections of the IPC dealing with defamation. As she points out, these sections do not recognise the importance of unequal power relations. ​“Where a poor person from a lower caste offends the sensibilities of a rich person from a high caste, this is given the same weight as the reverse situation. What we really require therefore, is a restructuring of the law to take such unequal power relations into account,” she says.

According to her, for the time being, section 66‑A can safely be scrapped, as there are sufficient other provisions to deal with similar offences. The reason why some like to keep it on the books is because it allows for more stringent action immediately, even for merely voicing personal opinions on sensitive issues on the Internet or by electronic mail.

“The purpose of law is to help citizens understand what they need to do to stay on the right side of the law. Where the law says one thing but is understood by the Courts to mean another, it provides insufficient guidelines for citizens’ behaviour,” Kovacs states.

So what should the common man, who is not attuned to the law or legalese, be watchful against? ​“Anything or everything,” says Apar Gupta. ​“There is no determinacy to the law which leaves it open for arbitrary application. This is one of the very reasons that the petitioners of PUCL have been forced to approach the court,” he adds.

Like many other tough laws in India, 66‑A too requires certain amendments. The Section needs to be clearly defined and the citizenry along with police officials need to be educated about the law, so that it is not subject to personal interpretations and misuse. But Kovacs also stresses on the need to have a greater emphasis on non-legal ways to combat hate speech and not just rely on the law or the police.

“Many of the offensive speeches visible on the Internet, such as the misogynistic swear words often directed at vocal women, are sufficient to create an environment online that is not welcoming of particular groups of people and even makes the Internet an unsafe environment for them. Instead, we need to create a different culture online, one that is respectful of differences and the fundamental human rights all people have. The government can play an important role in this, for example through education and awareness, but it needn’t be the only actor. Users and social organisations, for example, can also make a difference, to start with by simply speaking up when they see someone else being abused,” she states.

On a positive note, Shreya Singhal’s counsel Mukul Rohatgi, who had filed the PIL in the Supreme Court along with her, has been recently appointed the Attorney General of India. One can only hope that he will attempt to steer the law along an appropriate course of action towards the amendments required to ensure justice.

Devu Chodankar meanwhile has learnt his lesson the hard way. He appeared before the Cyber Crime Branch in Goa on 2 June, and was subsequently quizzed by the police on the motives behind his original post. Whatever the motive may have been, the ensuing chain of events had certainly rendered him mellow, as is evident from his Facebook post on the day of the election results: ​“Despite all ideological differences, this victory of Narendra Modiji revives hopes for a stable and effective government at the centre. Congratulations to Narendra Modi for this massive victory. Verdict of the people of India has to be respected by all.”