Article 66A of the IT Act
The Information Technology Act 2000 was passed by both the houses of parliament in May 2000 and was put into effect in October. This was India’s one of the earliest attempts to take cognizance of the Internet phenomena and to come up with a legislation that would prevent cybercrimes. The Act was further amended in 2008 and the Information Technology (Amendment) Act 2008 was enforced in October 2009. Since then, however, Article 66A of the IT Act has remained mired in controversy. According to Section 66A, “sending offensive message through communication service (electronic means)” is a punishable offense attracting an imprisonment of up to three years and an additional fine.
The act describes a violator as anyone who leverages computer resource or a communication device and sends information that is “grossly offensive or has menacing character” and someone who deliberately disseminates false information to cause “inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity and hatred”. According to the act, an individual would find himself on the wrong side of the law if he sends “any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages”.
Criticism and Controversy
While at the outset, the Article may seem quite straightforward, the legislators have failed to explain the term “offensive” leaving the law a vague one, amenable to the will of law enforcement bodies. The offensiveness of a communication sent through an e-mail, mobile device or a tablet is a very subjective judgement. The perils of this loose legislation are heightened in the face of social media networks and platforms where diverse people converge. Criticism and analysis is perhaps the heart and soul of Twitter. On Facebook, a witty cartoon, photo or a sarcastic quote is quickly shared and broadcasted to a lot many people. YouTube’s parody videos are now as popular as newspapers were a decade ago. Where, then, do we draw the line? This is precisely the controversy that surrounds Article 66A of the IT Act.
The most significant of all the criticism forwarded against the article is that it contradicts the Freedom of Speech guaranteed by the constitution under Article 19(2). Political dissent is the foundation of a flourishing democracy and the 66A legislation may well be used to curb our right to disagree.
Controversial Uses of 66A and Social Media Censorship in India
One of the earliest controversial uses of the law was recorded in 2012, when Jadavpur University (Kolkata) professor Ambikesh Mahapatra was arrested for circulating e-mails that contained caricatures of the West Bengal CM Mamata Banerjee. Much outrage followed the arrest and the government was accused of intolerance.
In May 2012, the law was applied to a social media platform when two Air India employees (Mayank Sharma and K.V. Jaganatharao) were arrested and detained for about 12 days for uploading “lascivious and defamatory content” to sites such as Orkut and Facebook.
Later that year, two girls from Maharashtra were arrested following a Facebook post criticising the shutdown of Mumbai during the funeral of politician Bal Thackeray, the Shiv Sena founder. The government responded to the outcry that followed by issuing a guideline that the registration of cases under this law was within the purview of officers of the rank of deputy commissioner of police or above in small cities and rural sectors and inspector general and above in major cities. This new guideline assumes that higher ranking officers are better equipped to understand and interpret the law. It also ignores the reality of political pressure exerted on the law enforcement agencies.
Aseem Trivedi’s arrest in September 2012, for circulating eight “seditious cartoons” criticising the corrupt practices of the country had also come as a shock to those using Internet as a mode of free communication. Over the past two years, a number of other cases have surfaced where Article 66A has been used arbitrarily by the police (with or without political duress) in a manner that suggests gagging of an individual’s right to expression, particularly on social media platforms.
Is Social Media Free?
In 2012, the then IT Minister Kapil Sibal had grandly announced that no Indian government shall censor Social Media. Perhaps his intentions had been to dissipate fears of a China-like situation. Yet, his assurances have done nothing to ensure a clarification of the legal context in which 66A may be used.
It is also noteworthy that in most cases where Article 66A has been cited to book a person, it has been used in conjunction with other acts, also pointing to its inefficacy. The Supreme Court of India has recently sought a full explanation of Article 66A from the government, failing which may cause it to be scrapped.
While it is undeniable that some measure of control is necessary when it comes to online interactions and publications – more so in case of social media – Article 66A is perhaps not the answer. In fact, the “reasonable restrictions” imposed by the act have not translated into reality.
For a young, tech-savvy yet politically conscious India to emerge, it is necessary that any legislation that attempts to control or even monitor social media interactions be discussed at length and not merely within the chambers of the parliament. Crowdsourcing ideas is a smart way to come up with a dynamic legislation aimed at protecting national security while at the same time promoting individual Freedom of Speech and Expression.
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