Section 66 A Of The Information Technology Act 2000: A Draconian Law

Section 66 A Of The Information Technology
Act 2000: A Draconian Law

IN FOCUS:

 

Section 66 A Of The Information Technology
Act 2000: A Draconian Law

I SECTION 66 A : AN INTRODUCTION

Section 66A of the Information Technology Act 2000 (hereinafter referred to as the IT Act) makes it an
offence, when you send, by means of a computer resource or a communication device, any of the
following information:

a. any information that is grossly offensive;
b. any information that has menacing character;
c. any information which you know to be false but which is sent for purpose of causing annoyance;
d. any information which you know to be false but which is sent for purpose of causing
inconvenience;
e. any information which you know to be false but which is sent for purpose of causing danger;
f. any information which you know to be false but which is sent for purpose of causing
obstruction;
g. any information which you know to be false but which is sent for purpose of causing insult;
h. any information which you know to be false but which is sent for purpose of causing injury;
i. any information which you know to be false but which is sent for purpose of causing criminal
intimidation;
j. any information which you know to be false but which is sent for purpose of causing enmity;
k. any information which you know to be false but which is sent for purpose of causing hatred; or
l. any information which you know to be false but which is sent for purpose of causing ill will. All
the above information as per point (a) to (l) must be done persistently by using a computer
resource or communication device.
m. any e-mail or electronic mail message for the purpose of causing annoyance;
n. any e-mail or electronic mail message for the purpose of causing inconvenience;
o. any electronic mail or electronic mail message to deceive the addressee or recipient about the
origin of such messages;
p. any e-mail or electronic mail message to mislead the addressee or recipient about the origin of
such messages.

Section 66A provides for up to three years of jail term for offenders alongwith fine.

II MISUSE OF SECTION 66 A

Section 66 A is worded in such a way that its interpretation borders on the vague, leaving the law open to misuse. Any user of a computer system or a mobile phone needs to be careful while sending information through it. If you are not careful, you could be brought within the ambit of Section 66A of the IT Act.

The misuse of Section 66A has happened in various instances:
a. The most recent case is the arrest of two 21-year-old women in Palghar, Maharashtra, who wondered on Facebook if Mumbai should have indeed shut down for Shiv Sena founder Bal Thackeray’s funeral. The woman who put up the post, and her friend who merely ‘liked’ it on
Facebook, were arrested
b. A professor in West Bengal was arrested for posting cartoon against Chief Minister Mamata Banerjee.
c. A businessman in Puducherry, and two Air India employees in Mumbai, were arrested by the cyber crime cell of the Mumbai police for Facebook posts alleged to be offensive to politicians. Like the Palghar case, they too were charged under Section 66A of the IT Act.

III BREACH OF FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND
PERSONAL LIBERTY

If the police consider a tweet or blog ‘grossly offensive’ or‘of menacing character’, or causing ‘inconvenience,
annoyance, danger, obstruction or insult’, they can
prosecute the person responsible under Section 66 A of
the IT Act. The section alongwith section 80 of the IT Act
deprives citizens of their personal liberty guaranteed
under the Constitution. This is a draconian section that
gives immense power to the Police. The law grants power
to every police officer of the rank of Inspector and above
to enter, search and arrest (in a public place without
warrant) a person who is reasonably suspected of having
“either committed a cyber offence, committing a cyber
offence or is about to commit a cyber offence. ” In other
Under Article 19 (2) of the
Constitution, threat to public order, defamation, incitement to offence, contravening decency and morality, committing contempt of court, etc, are grounds to limit freedom.
Restraint on speech cannot go beyond this. Therefore if an expression is not criminal when it is made in the non-
digital world, it cannot become one in the cyberworld.
words an arrest can be made on the basis of intention to commit a crime depending on the discretion of the police officer. Section 66 A alongwith section 80 of the IT Act violates Article 19 (1) (a) and Article 21 of the Indian Constitution.

Explaining the scope of freedom of speech and expression the Hon’ble Supreme Court has said that the words “freedom of speech and expression” must be broadly constructed to include the freedom to circulate one’s views by words of mouth or in writing or through audiovisual instrumentalities. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution.

Under Article 19 (2) of the Constitution, threat to public order, defamation, incitement to offence, contravening decency and morality, committing contempt of court, etc, are grounds to limit freedom. Curbs on speech cannot go beyond this. Therefore if an expression is not criminal when it is made in the non-digital world, it cannot become one in the cyberworld.

Through the interpretation which has been given to the words life and personal liberty in various
decisions of the Apex Court, it can be said that the protection of life and personal liberty has got multidimensional meaning and any arbitrary, whimsical and fanciful act of the State which deprives the life or personal liberty of a person would be against the provision of Article 21 of the Constitution.

IV PUBLIC INTEREST LITIGATION FILED IN THE SUPREME COURT OF INDIA

In protest against the Mumbai incident which led to unjustifiable arrest of two young girls, a public interest litigation has been filed before the Supreme Court of India by Shreya Singhal a student. She has sought a direction from the court that no cases under section 66 A be registered across the country unless such complaints are seen and approved by the DGP of the state concerned. The PIL further states that the provision of the IT Act, which gives power to arrest, is “wholly unconstitutional” and needs to be done away with. The petition has also sought issuance of guidelines to reconcile Criminal Procedure Code Section 41 (power of police to arrest without warrant) and 156 (1) (police officer’s power to
investigate cognizable cases) with the Constitution’s Article 19(1)(a) (right to freedom of speech and expression).

The Supreme Court while entertaining the petition has also observed that, “The wording of the Section is made very wide as it can apply with regard to anybody or any activity.” It has issued notices to Ministries of Home, Department of Telecommunications and Law and Justice to respond within four weeks. The bench also decided to issue notices to Maharashtra, West Bengal, Puducherry and Delhi. The Attorney General appearing in the matter however has found no fault with the law and has stated that section 66 A was bailable and would require prior permission from the superior police officials for registering the complaints.

Section 66 A of the IT Act is a potential tool in the hands of the powerful to suppress the voice of the common man. It is dangerous for the freedom of speech of the ordinary citizens and the press in particular. The provisions of the section are vague and have a wide
interpretation. The government has failed to issue any clarificatory rules or guidelines under the IT Act to provide safeguards against blatant misuse of the section. The various terms in the section like “offensive”,
“menacing,” “annoyance” are being widely interpreted to the whims and fancies and convenience of local policemen to harass innocent people.

Though the government is reviewing the existing sections under the IT Act, the problem is with implementation of those laws. There is a need to amend section 66 A to bring it in conformity with the fundamental rights of freedom of speech guaranteed by the Constitution of India and also the protection of personal liberty.
The limitations on freedom of speech
can only be subject to Article 19 (2)
of the Constitution.

The government especially after the Mumbai incident
which shocked the nation over the unjustifiable highhandedness of the police has issued an advisory to states on how to implement the controversial Section 66(A) of the IT Act. The Government is in the process of issuing guidelines according to which cases to be registered under the provision of the IT Act have to be decided by senior police officials of the ranks of DGP for cases pertaining to rural areas and IGP for metros. This is to ensure that section 66 A is not misused.

The freedom of speech is of utmost importance. Millions of citizens, are users of the Internet and of social networking sites such as Facebook and Twitter and the recent events involving action taken by various authorities under Section 66A of the IT Act has left a chilling effect on them. The phrasing of terms under Section 66A are wide and vague and incapable of being judged on objective standards. They are susceptible to gross abuse by people in power.

Though the government is reviewing the existing sections under the IT Act, the problem is with implementation of those laws. There is a need to amend section 66 A to bring it in conformity with the fundamental rights of freedom of speech guaranteed by the Constitution of India and also the protection of personal liberty. The limitations on freedom of speech can only be subject to Article 19 (2) of the Constitution.

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