Friday, March 27, 2015

66A and after

Indian Government Notified the Information Technology act 2000, also known as ITA-2000 on October 17, 2000 for facilitating and authorising various commercial transactions. In the preamble to the act, this aim is well defined and says:

An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as "electronic commerce", which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers' Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto.”

The act also defined some offences such as Tampering with computer source documents - Intentional concealment, destruction or alteration of source code when the computer source code is required to be kept or maintained by law for the time being in force ( section 65) and hacking (Section 66), as punishable and proscribed punishments. A new section called Section 66A was added as an amendment in 2008 and was notified in February 2009. This section in short, defined the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction could fetch a maximum of three years in jail and a fine.

There was nothing wrong with this added section except the fact that the meaning of the word “offensive” was kept very vague (perhaps intentionally.) According to law experts, the word could have a very wide connotation (an associated or secondary meaning of a word or expression in addition to its explicit or primary meaning) and would be open to distinctive and varied interpretations. It is highly subjective as what could be innocuous for one person, someone else may find it offensive and may lead to complaints from him. If police decide to prima facie accept the latter person’s view, they can make an arrest under this section.

That this section could be misused, became very clear in next 3 or 4 years. Two girls from Palghar in Maharashtra had made comments on their facebok page in November 2012 about shutdown of Mumbai for the funeral of Shiv Sena chief Bal Thackeray. Their comment outraged some Shiv Sena followers, who complained to police and Police arrested the girls under section 66A. In the same year, four more arrests were reported under this section.

Firstly, Jadavpur University professor Ambikesh Mahapatra was arrested for forwarding caricatures on Trinamool Congress chief Mamata Banerjee on Facebook. followed by arrest of activist Aseem Trivedi for drawing cartoons lampooning Parliament and the Constitution to depict their ineffectiveness. An Air India employee Mayank Sharma and K V Rao from Mumbai were arrested for allegedly posting offensive comments against politicians on their Facebook group. Finally Businessman Ravi Srinivasan was booked by Puducherry police for an allegedly offensive tweet against the son of a former cabinet minister.

Following these arrests, there was an outrage from all quarters over the manner in which the cyber law was used. It had become very clear that this was a draconian law that directly affected the fundamental right of freedom of speech granted to Indian citizens under Indian constitution.

24 year old Ms.Shreya Singhal, a Delhi-based law student, was the first person to challenge the law in court after the arrest of the Palghar girls by Maharashtra Police in 2012. Shreya contended that Section 66A goes against the right to free speech as enshrined in India’s Constitution. Her Public Interest Litigation (PIL) cited the arrests as evidence that the law, though meant to protect citizens from defamation, can be used to restrict freedom of expression. Shreya was followed by 26 others.

The Supreme Court, in the preliminary hearing, accepted the contention that the provision was “very widely drafted”, and gave arbitrary powers to police officers . After this, the central government issued a set of guidelines in January 2013, intended to prevent misuse of the provision. . The petitioners however, maintained that the guidelines can not redeem an unconstitutional provision.

The final judgment came on 23rd March 2015, where the Supreme Court declared Section 66A of Information Technology Act as unconstitutional and struck it down. It rightly said that such a law hit at the root of liberty and freedom of expression, the two cardinal pillars of democracy. 
Section 66A now being history, question comes, how the law will now deal with miscreants, who want to use electronic media to trouble or harass others. A cyber culprit can still be sentenced under similar provisions of the IT Act (section 67), Sections 506, 509 of IPC and state-enacted provisions that criminalize harassment.

27th March 2015

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