SC strikes down section 66A: A victory for the aam aadmi over the mighty neta


March 25, 2015

NEW DELHI, INDIA – Let the bells of free speech toll. In a landmark judgement and in a victory for advocates of freedom of expression on the Internet, the Supreme Court has struck down the controversial article 66A of the IT act, deeming it both unconstitutional and untenable.

March 25, 2015

NEW DELHI, INDIA – Let the bells of free speech toll. In a landmark judgement and in a victory for advocates of freedom of expression on the Internet, the Supreme Court has struck down the controversial article 66A of the IT act, deeming it both unconstitutional and untenable.

The Supreme Court had taken exception to the vague wording of the judgement, and has said that it was in direct contravention to article 19(1) of the constitution and also directly impacted the public right to know. The court also said that the act did not protect public order although that was the ostensible object of the provision.

The verdict comes as a huge relief to advocates of internet freedom, who have pointed out that the act is loosely worded and puts too much power in the hands of the state, which can arbitrarily deem any content offensive or a threat to security.

Section 66A reads as follows:

"Any person who sends, by means of a computer resource or a communication device,—

  1. any information that is grossly offensive or has menacing character; or
  2.  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,
  3. 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, shall be punishable with imprisonment for a term which may extend to three years and with fine."

One of the main problems with the act is the fact that it is framed in vague and sweeping language, which allows law enforcement authorities to interpret it in a subjective manner. What, for instance is information that is 'grossly offensive' and has menacing character'?

This issue was also flagged by the Supreme Court while hearing the petitions against the act.

Dealing with the word "grossly offensive", the bench referred to the judgement cited by the ASG and said, "what is grossly offensive to you, may not be grossly offensive to me and it is a vague term," adding "Highly trained judicial minds (judges of the UK courts) came to different conclusions by using the same test applied to judge as to what is grossly offensive and what is offensive."

In fact, one of the judges on the case, Justice Nariman, even gave an example to the court of how the vague definition of 'grossly offensive' could be dangerously twisted toward political ends. According to a Times of India report, he said in court, ""I can give you millions of examples but take one burning issue is of conversion. If I post something in support of conversion and some people, not agreeable to my view, filed a complaint against me then what will happen to me?"

Earlier, the court had on 16 May, 2013, come out with an advisory that a person accused of posting objectionable comments on social networking sites cannot be arrested without police getting permission from senior officers like IG or DCP.

The directive had come in the wake of numerous complaints of harassment and arrests which sparked public outrage.

It had, however, refused to pass an interim order for a blanket ban on the arrest of such persons across the country.

The main defence of the government was that the act could not be "quashed" merely because of the possibility of its "abuse". Additional solicitor general Tushar Mehta said that the vague wording of Section 66A, which said ‘grossly inoffensive’ content could land someone in prison for three year, was not a good enough reason to get rid of the section.

In the earlier hearings, Mehta had given examples of how the Ministry of Defence and External Affairs, received emails that were designed to hack and steal information from the ministries, in an effort to convince the court that Section 66A was needed to prevent such activities.

Much of the outrage surrounding section 66A has been caused by arbitrary arrests of people posting content on social media against politicians.

As pointed out by Firstpost editor Sandip Roy, "There’s nothing in Section 66A that’s specific to politicians, but politicians of all stripes have seized on it as the handy bully club to squelch all kinds of dissent from cartoons to abuse. There’s that old saying jiski laathi uski bhains(whoever owns the big stick, owns the buffalo). For our politicians, Section 66A is the big stick."

Apart from the two girls who were arrested in Maharashtra over a Facebook criticizing the shutdown of Mumbai after Bal Thackeray's death, some other controversial arrests under the act were:

  • A tourism officer in Varanasi was arrested for uploading “objectionable” pictures of Mulayam Singh Yadav, Akhilesh Yadav and Azam Khan on Facebook.
  • Ambikesh Mahapatra, a Jadavpur University professor, was arrested in Kolkata for forwarding a cartoon about Mamata Banerjee.
  • In Goa last year, police booked a young shipping professional for a Facebook post which said that the Prime Minister-elect Narendra Modi would start a holocaust in India. Devu Chodankar had written on a Facebook forum on Goa+, a popular forum with over 47,000 members, if elected to power, Modi would unleash a 'holocaust'. He deleted his post subsequently. Chodankar later apologised for his choice of words but stood by the sum of his argument, calling it his crusade against the “tyranny of fascists”.
  • Most recently a class 11 student was arrested for making a Facebook post about UP minister Azam Khan. “A Class XII student made comments against me on FB. Law is enforced with strictness and he has been arrested within 24 hours,” Khan told the media.
  • A man was arrested in Puducherry for tweeting that Karti Chidambaram, son of then union minister P Chidambaram was 'corrupt'.

In effect, the judgement against section 66A can be seen as a victory for the Aam aadmi over the politician, who had been arbitrarily using the act to stamp out dissent and public criticism of them. As Roy said, ordinary citizens did not find the same levels of 'protection' that politicians did, thanks to the act. "If the police went after every Twitter troll for abusive comments with as much alacrity as they went after a youth in Rampur that posted on Facebook about Azam Khan, they would find little time to do anything else. When activist Kavita Krishnan was on an online chat discussing violence against women, she found herself threatened with rape repeatedly by someone using the handle RAPIST. No one rushed to file an FIR", he said.

And that is why the judgement is so important. It has taken away a tool that was used by the ruling political classes, to lord their 'khas admi' status over the rest of us all. The message they constantly gave us was that they had section 66A at their beck and call to harass and intimidate us, while they went around the country saying whatever they felt like. The Supreme Court has taken that tool away from them. The people of the country have all won.

Courtesy: FP