Demotix/Arindham Mukherjee. All rights reserved.
Indian parliamentarian M. Rama Jois once described the controversial Section 66A of the Information Technology Act 2000 as “passed in a hurry”. “Hurry” is putting it lightly. On the last day of the Winter Session of the Lok Sabha (India’s lower house of Parliament) in December 2008, seven laws, including 66A, were passed in seven minutes, without any discussion.
Section 66A 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 across India have criticised Section 66A, and the student-led Public Interest Litigation (PIL) challenged its constitutionality in the Supreme Court, stating that Section 66A curbs freedom of expression and violates Articles 14, 19 and 21 of the Constitution. In response, the government issued an advisory, asking state governments to prevent police from making arrests using this section unless authorised by a senior officer, both at city and district levels.
The court of public opinion has been firmly against the government’s position that enforcement agencies are to blame for the misuse of Section 66A, rather than the IT Act itself. 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 said:
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 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 then Minister A. Raja’s response 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 on Censorship event in New Delhi by panelist Ajit Balakrishnan, founder of web portal rediff.com when he said, “government officials have genuine problems with phrasing,” - then clearly the problem with the law lies in its language. However, he has also reasoned that the law 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 during a discussion in the Rajya Sabha (Upper House) 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 imposes harsher punishments than are imposed 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.
Over four years after the Act was passed, and countless arrests and misguided blocking of websites later, Section 66A lies firmly in place in Indian 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, such as 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. This debate can be expected to snowball in the coming years.