In a discussion on withdrawing the controversial Section 66A of the Information Technology Act 2000, member of parliament from Karnataka, M. Rama Jois, proclaimed that, “this law was passed in a hurry and we are worrying at leisure!” Hurry is putting it loosely. On the last day of the Winter Session of the Lok Sabha (India’s lower house of Parliament) in December 2008, seven bills were passed in seven minutes, without any discussion on them.
Section 66A, as has been widely reported, 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. As a result, there have been arrests across India on the basis of a Facebook update, tweet and even sharing a cartoon online. Experts have panned Section 66A across India, and student led Public Interest Litigation (PIL) challenged its constitutionality in the Supreme Court stating that Section 66A curbs freedom of speech and expression and violates Articles 14, 19 and 21 of the Constitution. In response, the government issued an advisory asking state governments not to allow police to make arrests using this section unless authorized by a senior officer, both at city and district levels.
The court of public opinion has been firmly against the government’s position that the enforcement agencies are to blame for misuse of Section 66A, not the wording of the IT Act. In an interview in November 2012, the Minister for Information and Technology, Kapil Sibal categorically stated, “there is nothing unconstitutional about the Section.”
However, a host of civil society actors and politicians have continued to challenge this school of thought. In his Private Members Bill in the Lok Sabha, Member of Parliament Jay Panda has stated that within Section 66A, “clause (a) of Section 66A uses expressions such as ‘grossly offensive’ and ‘menacing’ which are not only impossible to define but also highly subjective by individual standards. Clause (b) prescribes penalties for offences such as ‘annoyance’, ‘criminal intimidation’, ‘insult’ and promoting ‘hatred’ or ‘ill- will’ between groups. Prescribing the same punishment for ‘annoyance’, as well as ‘criminal intimidation, by bundling of disparate terms within the same clause is bound to lead to confusion and misuse.”
Similarly, Pranesh Prakash of the Center for Internet and Society called Section 66A “patently in violation of Art. 19(1)(a) of our Constitution.” In a detailed note, he explains that the origin of Section 66 A(c) –“for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages” -- can be found in the then Minister A. Raja’s desire to respond to an observation by the Standing Committee on Information Technology that the Act in its current state did not have any provisions for spam. If this is indeed the case, as was suggested during an Index event in New Delhi by panelist Ajit Balakrishnan, founder of web portal rediff.com and part of an expert committee that worked on the Information Technology Bill, when he said, “government officials have genuine problems with phrasing,” then clearly the problem with the Bill lies in its language. However, he has also reasoned that the Bill was passed without debate as it was in Parliament only a month after the 2008 Mumbai terror attacks, because it gave the state “requisite power” to deal with Information Age challenges.
This March, the discussion in the Rajya Sabha (Upper House) of Minister of Parliament, P. Rajeev’s Private Member Bill to withdraw Section 66A revealed very interesting aspects of both sides of this debate. One of the main criticisms this section has faced is that it puts harsher punishments for the same crime committed offline. For example, 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. There are other examples. However, in his rebuttal, Information and Technology Minister, Kapil Sibal, stated in the house that, “the print media gets extinguished. You read the newspaper the next day, and it is over. The social media is a continuing process. You will have that byte on the site for months. In a sense, it is a continuing offence, not so in the print media. It has a life of its own, not so in the print media. So, should the same norm be applied to the social media as we do in the real world?”
Taking on the government’s suggestion that the main problem with Section 66A lies in its proper implementation, MP R. Chadrasekhar told the House, “to say that it is only a law enforcement implementation problem, is mischaracterizing the problem. Of course, there is the issue of abuse by agencies, as recent incidents have shown. The police machinery is not equipped with legal tools to interpret the statutes in online speech cases and cave in to political pressure often.” However, Vice Chairman Dr. E.M. Sudarsana Natchiappan, countered this thought with his defence of the Section, saying that misuse of all laws take place and “therefore, what one can do is, one can, somehow, rectify the approach of those who execute the law rather than deleting those Sections from the Statute Book.”
The robust debate led to P. Rajeev withdrawing his Resolution as Minister Kapil Sibal assured the House that the resolution will be taken up after the Supreme Court of India rules on the Public Interest Litigation currently challenging the Section 66A.
Over four years after the Act was passed, and countless arrests and misguided blocking of websites later, Section 66A lies firmly in place in India law. If the government holds its position that Section 66A is constitutional and needs only proper enforcement, then there is something to worry about. Some experts, like Ajit Balakrishnan, believe it takes 25 years for the police at the lowest level to understand the workings of any law, and according to the Indian government itself, the entire country will be connected to the internet well before then. Perhaps, the Supreme Court really is the last hope; else this debate can be expected to snowball in the coming years.