By Danish Raza

According to popular perception, Section 66A of the Information Technology (amendment) Act, 2008 is used by the government to curb voices of dissent. The spate of arrests under section 66A last year — cartoonist Aseem Trivedi, Jhadavpur university professor Ambikesh Mahapatra and Kochi businessman who commented on the wealth amassed by the then home minister’s son — provides fuel for this belief.

But to say that only the government is misusing this law may be a wrong reading of the situation, according to observers of varying trends of online freedom of speech and expression.

Many recent incidents point to the fact that citizens too, have been taking recourse to the vague wording of section 66A, something which the government is accused of doing.

One classic example was seen last week. Based on a case filed by Zee News journalist Sudheer Chaudhary, a trial court in New Delhi asked the Economic offences Wing (EoW) to file an FIR against unknown persons. Chaudhary had complained that some of his ​‘new’ followers on Twitter posted nasty tweets and created fake profiles to defame him.

Chaudhary’s name figured in a sting operation allegedly done by Jindal Steel and Power Limited which shows him demanding money to not air a story which shows the Jindals in a bad light.

Making a case against invoking section 66A, the EoW argued before the court that the complainant was merely creating new defences in an older case, reported The Hindu.

According to the report, the EoW said in response, that ​“The contents of the tweets were already in ​‘public knowledge’ and were not ​‘false or grossly offensive or menacing in character,’ which are grounds for legal action under Section 66 (A).”

In March last year, Hemanth Nimbalkar, deputy inspector general of police (internal security), filed a complaint with Vidhana Soudha police against former Lokayukta Justice Santosh N Hegde and former additional director general of police (ADGP) Rupak Kumar Dutta, according to this Times of India report.

In 2009, the Lokayukta office alleged that Nimbalkar owned assets worth Rs 81 lakh, which was disproportionate to his known sources of income. But three years later, the Lokayukta office filed a report in the court saying there was no case against Nimbalkar. ​“Explaining the consequences of the raids, the IPS officer pointed out that false allegations made by Justice Hegde and Dutta made it to the web as they were carried by e‑papers, websites and blogs and remain available to this day,” says adds the report.

There is a spurt in police invoking section 66A in cases of fake Facebook profiles, as seen in various states including Chennai, Mumbai and Punjab.

“There has been an increase in the number of complaints pertaining to fake profiles on social networking sites. We have received more that 30 complaints this year,” Times of India quoted S N Seshasai, joint commissioner of police, cyber crime branch, Chennai, as saying in November 2012.

As per Section 66A of the IT Act, causing annoyance or inconvenience electronically, is a criminal offence, punishable with maximum of three years imprisonment. The arrest under this section does not require a warrant. The primary problem with the Act is that it does not define the term ​“offensive”.

“Section 66A, I believe, imperils freedom of speech more than is allowable under Art 19(2) of the Constitution, and is hence unconstitutional,” notes Pranesh Prakash of The Centre for Internet & Society, Bangalore based NGO, working for online speech.

Even as the law was designed with an evil intent of charging anyone who speaks against the high and mighty, Apar Gupta, a Delhi based lawyer who works on cyber laws, says, there has been an increasing trend of citizens using the law against a fellow citizen or even against the authorities. ​“Section 66A has set a really low threshold for the police to arrest anyone who said anything offending or dissenting online. There is no justification for these arrests,” says Gupta.

Shehla Rashid, project officer with Internet Democracy project, an initiative for online freedom of speech, underlines a pattern in the users of section 66A. ​“In many of the cases concerning 66A, we have seen some powerful entity — which could be the State or a mob or any powerful individual – arm-twisting police into harassing dissidents. There have been many arrests under this section. But how many convictions? Perhaps none! Thus, it works fine as a bullying tactic as the accused gets arrested,” she says.

Despite its vague nature — making anything and everything online a criminal offence — section 66A fails to address many issues faced by netizens, says Mumbai based blogger Vidyut Kale. ​“Look at the confession pages which have come up in various schools and colleges. You can be anonymous on a public platform and write anything about any student or teacher on the campus. Many reports say that people are having harrowing experience because of what has been written on these pages,” says Kale. ​“Therefore, section 66 A is meant to silence people and not to protect them,” she concludes.