Olina Banerji explains why digital rights and free speech activists in India believe Section 66A of the Information Technology Act to be unconstitutional.
In November 2012, 21-year-old Shaheen Dhada from Palghar in Maharashtra posted a Facebook status update in which she insinuated that Mumbai had shut down in fear, rather than out of respect for Shiv Sena founder Bal Thackeray’s funeral procession. Within hours of the update, Dhada and her friend Rini Srinivasan, who had ‘liked’ the status update, were arrested, thus interrupting the forced calm that had enveloped Mumbai following Thackeray’s death. Dhada was booked under Section 295A of the Indian Penal Code and the controversial Section 66A of the Information Technology Act.
Section 66A, which was added to the Information Technology Act in 2008, passed without a single debate in the lower house of the Parliament. The section states that any message sent out electronically that is “grossly offensive or has menacing character” with 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 a fine and a prison term, which may extend to three years. The section was intended to curb the misuse of communications services such as SMS, MMS and email through the sending of offensive messages or spam.
Many lawyers have argued against Section 66A, saying that it demonstrates little understanding of how these mediums are used. “The problem lies firstly in the ambiguous wording of the law and secondly in its implementation,” says Supreme Court advocate Karuna Nundy. “The evolution of technology is the evolution of society. However, in this case, the law has evolved in an unconstitutional manner.” Nundy is currently in talks with the People’s Union Civil Liberties to file a petition to scrap the law. However, the government’s Ministry of Communications and Information Technology this month defended the law’s legal validity, arguing in an affidavit to the Supreme Court that Section 66A does not curb the right to free speech and expression.
The potential impact of Section 66A was evident in the wake of Dhada and Srinivasan’s arrests. Civil society actors, journalists and student groups protested against the government for overreaching in its net nanny duties; meanwhile, Thackeray’s supporters vehemently opposed the suspension of the junior officers who had made the Facebook arrests. A clinic owned by Dhada’s uncle was vandalised and she was arm-twisted into retracting her statement and deleting her Facebook account (she has since made it active again).
The outcry against the girls’ arrest led information technology minister Kapil Sibal to amend Section 66A: it now mandates that complaints under the section can only be registered with the approval of an officer of or above the rank of deputy commissioner of police, or inspector general in cities. This tweak sought to calm the frayed tempers of digital rights and free speech activists who saw four similar arrests under Section 66A in 2012 prior to Dhada’s. In most of these cases, the so-called seditionists had circulated material online that criticised the unlawful activities or whimsical attitude of the political class in India.
The history of dissent in India is fraught with instances in which the state has cracked the whip at its critics. Recently, the politics around free speech and expression has shifted online. Thanks to increased connectivity, dissent is taking on new forms and increasingly going viral. For example, nationwide protests against the gang rape of a student in Delhi were organised almost entirely though social networking sites and public demands were articulated in online petitions.
Despite the increased relevance of legislation pertaining to the internet or mobile communications, discussions about the Information Technology Act do not extend beyond the circles of power within which the Act originated. Many digital rights activists believe the consultation with civil society actors in the run-up to introducing the amendments to Section 66A following Dhada’s arrest was a mere ruse to grant legitimacy to the Section.
Not surprisingly, then, many of these activists do not accept the amended law. Pranesh Prakash, policy director at the Centre for Internet and Society in Bangalore, has written extensively in favour of scrapping this Section 66A. According to him, use of words such as “annoyance” or “inconvenience” to describe the nature of offensive material being sent electronically makes the scope of the law excessively broad. “Section 66A is patently in violation of Article 19(1)(a) of the Indian Constitution,” he claims.
Gautam John, head of the Karnataka Learning Partnership, agrees. “Existing laws are more than sufficient to deal with these matters both online and otherwise,” he says. “The segmentation of online speech only on the basis of medium is unreasonable.”John further argues that punishment for any real threat to public order or defamation is sufficiently covered under Article 19(2) as grounds to limit freedom.
While in the case of most criminal offences there’s a mismatch between what the law states and its implementation, the argument against Section 66A is that it’s fundamentally flawed and therefore poorly implemented. It seems the debate about the constitutionality of Section 66A will continue in India’s courts and public sphere.
Click here for an interview with Lawrence Liang on the legal role of Section 66A.
Olina Banerji is a Consultant with Ashoka India and graduated from LSE with an MSc in Media and Communications in 2010.