A COMMENTARY ON THE SECTION 66A OF THE INFORMATION TECHNOLOGY (IT) ACT

The Supreme Court of India, on March 24, 2015, struck down Section 66A of the Information and Technology Act, which allows police to arrest people for posting "offensive content" on the internet. The Bench said the public's right to know is directly affected by Section 66 A, which affects the right to freedom of speech and expression enshrined under the Constitution of India. "It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right," said a Bench of Justices J. Chelameswar and Rohinton F. Nariman. The definition of offences under the provision was "open-ended and undefined", it said.

The Bench turned down a plea to strike down sections 69A and 79 of the Act, which deal with the procedure and safeguards for blocking specific websites and exemption from liability of intermediaries in some instances, respectively. In the judgment, the court said the liberty of thought and expression was a cardinal value of paramount significance under the Constitution. Three concepts fundamental in understanding the reach of this right were discussion, advocacy and incitement. Dialogue, or even advocacy, of a particular cause, no matter how unpopular it was, was at the heart of the right to free speech, and it was only when such discussion or advocacy reached the level of incitement that it could be curbed on the grounds of causing public disorder.

The Act has recently been in the news because of its alleged misuse. The first PIL on the issue was filed in 2012 by a law student Shreya Singhal, who sought amendment in Section 66A of the Act; this case came to be known as Shreya Singhal Vs. The Union of India. It was filed after two girls - Shaheen Dhada and Rinu Srinivasan - were arrested in Palghar in Thane district as one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray's death and the other 'liked' it. This case is now in the annals of history as a landmark decision in the free speech regime.

Several cases have been wherein Section 66A of the Act was misused, and appeals seeking an amendment have been demanded. Jadavpur University professor Ambikesh Mahapatra was arrested for forwarding caricatures of Trinamool Congress chief Mamata Banerjee on Facebook in 2012. Activist Aseem Trivedi was also arrested in 2012 for drawing cartoons of Parliament and the Constitution to depict their ineffectiveness. He was arrested on charges of sedition, leading to massive protests. In another instance in 2012, Air India team members Mayank Sharma and KV Rao from Mumbai were arrested for allegedly posting offensive comments against politicians on their Facebook group.

In August 2013, poet and writer Kanwal Bharti was arrested by police for posting a message on Facebook that criticized the Uttar Pradesh government for suspending IAS officer Durga Shakti Nagpal, who had cracked down on the sand mafia. Bharti's post questioned why Nagpal had been arrested for ordering the demolition of a wall intended to be part of a mosque. At the same time, no officer in Rampur was dismissed when an old madrasa was pulled down. He said the reason was that Samajwadi Party leader Azam Khan controlled the town.

Rampur police arrested a Class XI student from Bareilly for sharing an "objectionable" post on Facebook against senior Samajwadi party leader and the then-state Urban Development Minister Azam Khan. A team of crime branch detectives picked him up from his house Monday, and he had been remanded in judicial custody for 14 days. An FIR was lodged against All-India Majlis Ittehadul Muslimeen (AIMIM) leader and MP Asaduddin Owaisi by Delhi police on the directions of a city court for his alleged "hate speech" in June last year. The FIR includes charges under Section 153 A (promoting enmity between groups), 504 (intentional insult with intent to provoke breach of peace) and 120B (criminal conspiracy ), as well as sections 66A, 66F and 67 of the IT Act that relate to "objectionable" speech and cyber terrorism. 

A Kerala youth was arrested for posting abusive comments and photos against Prime Minister Narendra Modi on Facebook. The case was registered against Rajeesh at Anchal police limits in Kollam district on Tuesday after he had posted three abusive posts on Facebook. An RSS worker had complained against Rajeesh – a local CPI (M) worker.

An expert committee to review the "good and bad" aspects of Section 66A has recommended amendments to the Indian Penal Code (IPC), the Code of Criminal Procedure and the Information Technology Act to deal with hate speech cases and the increasing number of harassment cases online. There was a demand for reintroducing Section 66A. Still, the committee headed by former Law Secretary and Lok Sabha Secretary General T K Vishwanathan has suggested improving the current rules under various sections of the law.

Though the expert committee has denied reintroducing Section 66A, other Sections of the IT Act need to be amended as per its suggestions. The committee has stated that "representatives of the Ministry of Women and Child Development stressed upon reintroducing a renovated Section 66A within the IT Act, incorporating suitable changes". But other committee members advocated that with the IT Act being "commercial in nature," it was necessary for an Act to invoke punishment to amend the Indian Penal Code.

The court noted that Section 66A did not have procedural safeguards like other sections of the law with similar aims, such as the need to obtain the concurrence of the Centre before action can be taken. Local authorities could proceed autonomously, literally on the whim of their political masters. Certain aspects of information technology indeed require specific laws, for they are novelties. An SQL injection attack is not the same as breaking and entering; hosting illegal files is not necessarily the same as fencing contraband property. But hate crime is as old as the hills. The court refused to distinguish between traditional media and the internet in this regard, which suggests that existing laws if diligently applied, should suffice. Unconstitutional curbs on free speech are bound to resurface in any legislation designed to fill the void happily vacated by Section 66A, which had affected the lives of far too many innocents. It was a legislative crime that the back door must not revisit.