Last week, in the small town of Palghar, Maharastra, a 21-year-old was arrested for a Facebook post questioning a citywide shutdown to mark the death of a regional leader. Her friend was arrested for ‘liking’ her status. The two women, Shaheen Dhada and Renu Srinivasan, faced charges under the controversial Section 66A of the Information Technology (Amendment) Act 2008.
The case has triggered a massive public outcry here in India over the last ten days, leading to the charges being dropped. Section 66A, now instantly quotable by India’s Twitter generation, allows for “punishment for sending offensive messages through communication service”, which include messages that cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred and even ill will. This very loosely defined law has led to a series of arrests around the country in the past year, some of which have only just come to light. Arrests included a professor from Kolkatta forwarding jokes about the West Bengal chief minister via email, an ordinary citizen from Pondicherry for tweeting that he believed the son of a senior cabinet minister is corrupt, a cartoonist in Lucknow whose sketches alleged that corrupt politicians have led to the debasement of democracy in India and two Air India employees in Mumbai who were arrested and held in custody for 12 days after they apparently insulted the prime minister and the national flag in their Facebook posts.
Bowing to public pressure, the Minister for Information and Communication Technology, Kapil Sibal, has spearheaded moves to quickly add guidelines to the section. These new guidelines require an inspector general or district commissioner of police (DCP) to process every complaint under 66A. Twenty-eight states and seven union territories have an inspector general, and each of the countries 657 districts has a DCP.
However, experts have warned this step is not enough to prevent unwarranted arrests and say the section itself needs further revision. In a further development, the Supreme Court of India has just accepted a public interest litigation case calling for the section to be scrapped on the grounds that it violates the right to free speech guaranteed by the Indian Constitution.
These arrests have shown how easy it is for powerful politicians to silence and intimidate their critics using the law as a crutch. Shaheen Dhada and Renu Srinivasan were arrested after a local political leader complained to the police. Even though the case has now been dropped, frightened by the mobs and media spotlight, Shaheen has left her hometown for some “peace”. Soon after, another boy, Sunil Vishwakarma, was questioned by the police for apparently making “vulgar” comments against Raj Thackeray, the nephew of the deceased leader. The police have since released him, as he maintains his Facebook was hacked by someone else to stir up trouble.
The misuse of Section 66A has revealed serious gaps in the legislative process and shown that junior police ranks lack the understanding and training to correctly implement this order. The IT Act was amended in haste in 2008 and passed in parliament without a debate. Under the Indian Penal Code (IPC), the charge of defamation carries a maximum jail sentence of two years, in contrast to the three years Section 66A carries for the same offence. But the IPC requires a warrant for an arrest for the offence, while arrests ordered under the IT Act do not. Further, Section 66A had no explanations or guidelines attached to it, which is why the government’s first step in response to the public outcry over these arrests has been to “modify” the section and provide guidelines.
These arrests — assaults on free speech — have revealed the nature of politics in the world’s largest democracy. These high-profile cases all involve the average citizen critiquing powerful politicians. The freedoms at risk – the right to tweet, update a status, forward a cartoon without the fear of becoming a political pawn, have galvanised and angered the netizens of India. There is a serious backlash against those political parties who seek to use the tools of social networking to control them.
India has a legal convention that allows a member of the public to act as a judicial activist and the the public interest litigation currently before the Supreme Court says:
"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."
This is a welcome step. The people are of India are gaining the confidence to use constitutional tools to fight back the top-down status quo of the country.