Pooja Chaudhuri Chaudhuri
The only fiction I enjoy is in books and movies.
An October 11 report by Internet Freedom Foundation (IFF), revealed that the Government of India plans to bring back Section 66A of the Information Technology Act (IT), 2000 which was struck down by the Supreme Court in 2015.
The IT Act, 2000 was amended in 2008 and received the assent of the President in 2009 to include Section 66A.
The law gave the government power to punish anyone for sending ‘offensive’ messages via online communication.
It said, “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; or
(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.”
Recently, a teenager in Uttar Pradesh, Zakir Ali Tyagi, had been arrested for commenting on social media on the recent ruling about the Ganga and Yamuna rivers being ‘living human entity’ and also commenting on the temple politics of the BJP.
The FIR accused Tyagi of posting “galat tareeke ke (wrong type of) comments” on Facebook and he was booked under Section 66 (computer-related offences of dishonesty or fraud) of the IT Act. However, his legal aid said that the teenager was first booked under Section 66A as the police were unaware that the law was deemed unconstitutional by the Supreme Court. Apart from this, he was also booked under sedition, Section 124A.
Tyagi was vocal about his opinions, some, many of us might not agree with. But that doesn’t take away his freedom of expression.
Time and again, Section 66A has been misused by those in power. In 2012, Jadavpur University professor Ambikesh Mahapatra was arrested for posting a spoof caricature on West Bengal CM Mamata Banerjee. Activist Aseem Trivedi, a controversial Indian political cartoonist and activist, has also been booked under the draconian law. In 2013, poet and writer Kanwal Bharti was arrested by the Uttar Pradesh police for posting a Facebook message that criticised the state government’s suspension of IAS officer Durga Shakti who had cracked down on the sand mafia.
In 2015, over 3,000 people were arrested by the police for violating section 66A of the Information Technology Act despite it being struck down.
In April this year, Varanasi district magistrate (DM) Yogeshwar Ram Mishra and SP Nitin Tiwari issued a joint order stating that an FIR can be filed against a social media group’s administrator if factually incorrect information, rumours, morphed images or misleading information are circulated on her/his social media group.
Currently, 66A stands defeated, however, with the already existing laws on ‘hate speech’, it will lead to further policing of social media groups, in turn, curbing free speech.
The Supreme Court’s landmark judgement in the 2015 Shreya Singhal vs Union of India case brought down 66A of the IT Act.
Law student Shreya Singhal moved the SC in light of the arrest of Shaheen Dhada and Rinu Srinivasan on November 2012 over a Facebook post that criticised the shutdown of Mumbai after the death of Shiv Sena leader Bal Thackeray.
In her petition, Singhal had argued that “unless there is judicial sanction as a prerequisite to the setting into motion the criminal law with respect to freedom of speech and expression, the law as it stands is highly susceptible to abuse and for muzzling free speech in the country”.
While determining the constitutionality of the law, the Supreme Court observed, “Section 66A has no proximate connection with incitement to commit an offence. Firstly, the information disseminated over the internet need not be information which “incites” anybody at all. Written words may be sent that may be purely in the realm of “discussion” or “advocacy” of a “particular point of view”. Further, the mere causing of annoyance, inconvenience, danger etc., or being grossly offensive or having a menacing character are not offences under the Penal Code at all. ”
Calling 66A “open-ended, undefined and vague”, the court said, “Quite obviously, a prospective offender of Section 66A and the authorities who are to enforce Section 66A have absolutely no manageable standard by which to book a person for an offence under Section 66A.”
“Section 66A is unconstitutional and we have no hesitation in striking it down,” the court ruled, adding, “The public’s right to know is directly affected by Section 66A.”
The IFF revealed undisclosed document of recommendations of the Section 66A Committee that is working toward bringing the law back.
The committee, headed by former Union Law Secretary and Secretary General, Lok Sabha, Dr T.K. Viswanathan, has proposed substantive alterations in the Indian Penal Code (IPC) and procedural safeguards in the Information Technology Act.
To achieve this, it is bringing forth the additions of Sections 153C and 505A in the Indian Penal Code, as per the recommendations made in March this year in the 267th report on ‘hate speech’ of the Law Commission of India.
The IPC already includes Sections (124A, 153A, 15B, 295A and 298, 505) to deal with ‘hate speech’. The inclusion of the two new Sections was reasoned by the Law Commission as, “Critical and dissenting voices are important for a vibrant society. However, care must be taken to prevent public discourse from becoming a tool to promote speech inimical to public order. The mode of exercise, the context and the extent of abuse of freedom are important in determining the contours of permissible restrictions. The State, therefore, assumes an important role in ensuring that freedoms are not exercised in an unconstitutional manner.”
The Commission observed that “Incitement to violence cannot be the sole test for determining whether a speech amounts to hate speech or not” in the age of technology.
“Keeping the necessity of amending the penal law, a draft amendment bill, namely, The Criminal Law (Amendment) Bill, 2017 suggesting insertion of new section 153C (Prohibiting incitement to hatred) and section 505A (Causing fear, alarm, or provocation of violence in certain cases) is annexed as Annexure-A for consideration of the Government,” it added.
Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe –
shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.
Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe
uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;
(i) within the hearing or sight of a person, causing fear or alarm, or;
(ii) with the intent to provoke the use of unlawful violence, against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”.
The Section 66A committee said that it “takes into account the constitutional infirmities” that the apex court had found in relation to Section 66A. Thus, the draft formulations of Sections 153C and 505A recognises “only online speech that relates to religion, race, caste, community, sex, gender, place of birth, residence and language falls within the purview of the proposed section.”
The Section 66A committee says that only the content which is used with an intent to cause “fear or harm” and that is not “gravely threatening” will be considered an offense. This sets a dangerous predicament and raises the immediate question – what constitutes as “gravely threatening” and how does the government seek to define it?
The use of the words “highly disparaging, abusive or inflammatory against any person or group of persons”, uttered with the intention to cause “fear of injury or alarm”, “gravely threatening or derogatory information” and uttered with “intent to provoke the use of unlawful violence” are vague and can be used by political leaders to curb what they consider a threat to their rule.
As said by IFF, the proposal to insert Section 505A is a major cause for worry because it reads a lot like Section 66A. Even though the conditions under which a “perpetrator” might be booked are more regulated than in the previous law, the vagueness (leaving room to be grossly misused by those in power) remains.
Another concern raised by IFF that should be echoed by anyone who has a moderately active presence on the internet is the fact the proposals by the Committee were brought about without any public discourse or comment. A democracy thrives on pluralism and this goes against our constitutional values of a government of the people by the people and for the people.
We already have laws that need reform – Section 69A of the IT Act (power to issue directions for blocking for public access of any information through any computer resource), Section 124A (sedition), among others.
When the government, in order to protect itself, goes against constitutional values, there remains little scope for the citizens to protect themselves. Any law is meant to safeguard citizens and the country, not the government.
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