Fighting the draconian S66A
Issuing guidelines against misuse of S 66A and withdrawal of cases against Shaheen Dhada and Renu by the Maharastra police are no solutions to the draconian criminal law called Information Technology Act 2000. Our only hope is the Supreme Court, which admitted public interest litigation to review this anti-expression law. The Maharastra state suspended two police officers for arresting the young women. As per the amended code, there shall be no arrest of person charged with an offence which can be punished with less than three years in jail. Age old norms specifically prohibit arrest of women beyond sunset.
Meanwhile another young person Sunil Viswakarma (19) who was arrested for writing against Raj Thackeray of NavNirmanSena was released by police. Their investigation revealed that somebody else posted these comments with an intention to get Sunil into trouble. It is for Maharastra police to explain why they have not paid compensation and tendered apology for these wrongful arrests? Not only that, the officers involved should be prosecuted for wrongful arrests as suggested by Justice MarkandeyaKatju, Chairman, Press Council.
It is unfortunate that like the police, the lower courts also admitted these cases without even primary examination and extended the custody of persons under this section. Both the police and judicial officers need to be trained about need for free expression in a democratic society and to apply their mind before depriving citizen of their personal liberty. The whole purpose of the great debate before the amendment of the criminal procedure law of arrest has been defeated as the officers are not giving any serious thought to apply those norms. They behave as if there are no curbs on such arbitrary arrests.
The problematic part of section 66A of the IT Act 2000, which says it is a crime punishable with imprisonment upto three years and/or with fine, is:“Any person who sends, by means of a computer resource or a communication device:(a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device…….”
Annoyance is making some one angry; insult means offensive remark or action. But legally speaking insult means the words expressive of contempt of dignity or insolence such as abuse. Any comment online can be considered as grossly offensive or has menacing character to attract prosecution because of this law.
The Indian Penal Code Section 504, criminalizes only intentional insult that provokes any person to cause him to break public peace, whereas, the IT Act has made the transmission of insulting remark itself an offence. Even assuming that online remarks are defamatory, they may not be of criminal nature attracting s 499 or s500 of IPC. But under this section every defamatory remark is considered punishable with jail up to 3 years, where under s500 maximum punishment for criminal defamation is up to 2 years. The IPC has ten exceptions to criminal defamation, while IT does not even talk about any exception.
The terms “causing annoyance”, “causing inconvenience”, “causing obstruction”, “causing ill will” are open ended expressions and a sub-inspector’s understanding of online content as of this character will be enough to jail the netizen. It is a very high power in the hands of police and ruling party which can spell a constant threat to political rivals and hostile media.
Article 19(2) of our Constitution says the state can impose reasonable restrictions on the exercise of freedom of speech and expression in the interests of the “sovereignty and integrity of India, the security of the state, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”. These restrictions must be through legislation and reasonable. Section 66A went beyond these grounds and added unreasonable restrictions. That is why this is an unconstitutional provision which violated Article 19(1)a (freedom of expression), Article 14 (right to equality) and also Article 21(right to life and personal liberty).
It is wrong to consider that this danger is confined to bloggers and browsers only, as content of every print medium is now available in net, each of a journalist could be in the net of custody also. Thus media personnel and organizations should get alert and fight against this section. It is also possible that rival politicians also can be arrested for making annoying comments of ruling political party leaders and mutually critical speeches during election campaign as they also will be available online. Every ruling party can use this as a weapon to get opposition voices stifled. One need not wait for its further misuse against rival politicians and abuse against hostile press.
The problem cannot be resolved by review of S 66A by Judiciary or guidelines against ‘misuse’ are issued by Executive. Only way is first part of this section should be suspended immediately and deleted later. The best thing would be immediate amendment to remove this, so that precious time of Supreme Court is saved.
The author is Professor & Coordinator Center for Media Law & Public Policy, NALSAR University Hyderabad, sridharnalsar@gmail.com