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Section 66A Of The Information Technology Act: A Provision Ultra Vires The Indian Constitution

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By Karmanye Thadani:

The nation is understandably outraged at the way two girls in Maharashtra were arrested for expressing themselves on Facebook (I can empathize with them, for I myself am very vocal about such issues on that very social networking site), condemning the forced bandh in Mumbai after Bal Thackeray’s death (one had posted the status and the other only ‘liked’ it), and earlier, how a man was arrested for tweeting against Chidambaram’s son. While the law enforcement agencies are to blame, in this case, so is the letter of the law, and the problematic provision is Section 66A of the Information Technology (IT) Act.

In an article I wrote, I defended the sedition law, saying that reasonable restraints to the freedom of speech and expression, as laid down in Article 19(2) of the Indian constitution or Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR), to which India is a signatory, are justified and democracy can’t be allowed to sound a death-knell to itself, misuse of the law, such as by detaining a cartoonist ridiculing the Parliament (he may have been ridiculing our MPs and not parliamentary democracy as such) notwithstanding.

I also support the provision in the Indian Penal Code (IPC), Section 295A to be precise, that classifies outraging religious sentiments as an offence. A civil critique of faith is different from outraging sentiments, and the anti-Islam film made in the US, for instance, in my opinion, should be banned in India, but not to say, a film like The Da Vinci Code, that doesn’t demonize Christ. This is not to say that I am not open to a critique of Ram, Krishna, Jesus or Muhammad, but it should be civil and free from ridicule or abuse, and in that spirit, I am not against Jethmalani’s remarks on Wahabi Islam a few years back or Ram more recently. Again, Section 295A of the IPC has also been misused against the girls who criticized the Mumbai bandh in addition to Section 66A of the IT Act, but how that relates to outraging religious sentiments is beyond me; yet, the possibility of misuse does not make a law redundant by itself.

So, in spite of not having fanatic views on free speech to the extent of being classified as a “liberal fundamentalist” (yes, this terminology is used!), why do I say that Section 66A of the IT Act is unconstitutional? The answer is simple — it doesn’t fall within the ambit of reasonable restrictions to the right to freedom of speech and expression mentioned in Article 19(2) of the Indian constitution. Let us have a look at Section 66A of the IT Act first. Here’s what it says —

Punishment for sending offensive messages through communication service, etc. – 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 makes 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.

Explanation: For the purposes of this section, terms ‘Electronic mail’ and ‘Electronic Mail Message’ means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.”

Now, let us have a look at Article 19(2) of the Indian constitution. It allows reasonable restrictions “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.

Next, let us evaluate Section 66A by this yardstick. Clause (a) is too vague and ambiguous. Clause (b), to a great extent, is reasonable because it mostly squarely falls within the scope of reasonable restrictions in relation to defamation. Clause (c), however, is the strangest provision that allows, in clear terms, merely “causing annoyance or inconvenience” to be a crime! Is this democratic by any means? And yes, clause (a) is also undemocratic, for the room it leaves. As for clause (b), defamation exists in India under the law of torts as also under the IPC, as defined in Section 499, and the punishment for it as a crime, as mentioned in Section 500 of the IPC, is imprisonment for up to two years, fine or both, and as for tortious defamation, the tortfeasor would have to pay compensation to the person he/she has maligned, and so, there is no reason for this to figure in the IT Act.

Worse still, for all these activities classified in this provision, the punishment straight away is imprisonment for three years, which is certainly draconian, going against the principles of fairness and reasonableness outlined in the landmark Wednesbury case in England and endorsed by the Maneka Gandhi case in India, even if by some absolutely bizarre logic, annoying or inconveniencing someone is a crime!

I am sure some human rights lawyers would file a writ petition in the Supreme Court under Article 32 of the constitution to have Section 66A of the IT Act struck down under Article 13(2) of the constitution, which states — “The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” The ‘Part’ referred to is Part III of the constitution, which contains the fundamental rights, including the right to freedom of speech and expression contained in Article 19(1)(a), and the apex court in its wisdom would take the necessary steps, even though Mr. Sibal, the IT Minister, seems to be in no mood to concede that this provision introduced by the UPA back in 2008, is blatantly unjust (for reference, please see this video, that also points to how Shiv Sainiks vandalized a clinic run by an uncle of one of the girls, which is hardly surprising, given the past record of that party).

It’s a test for Indian democracy now, and if we don’t act soon enough to protect our democratic character, then we may set in motion a historical process culminating in disastrous consequences.
[box bg=”#fdf78c” color=”#000″]About the author: The author is a freelance writer based in New Delhi. He has co-authored two short books, namely “Onslaughts on Free Speech in India by Means of Unwarranted Film Bans: An Issue Revisited in the Light of the ‘Aarakshan’ Controversy” and ‘Women and Sport in India and the World: A Socio-Legal Perspective’. A lawyer by qualification, he, till recently, worked in the Centre for Civil Society (CCS), a leading Delhi-based public policy think-tank. To read his other posts, click here.[/box]


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