Is Section 66A Of IT Act In India Unconstitutional?
By Saif Ahmad Khan
28 December, 2014
Countercurrents.org
Section 66A of the Information Technology (IT) Act has been widely criticized by free speech activists and legal eagles. Many have dismissed this controversial section of the IT Act as “unconstitutional” and “arbitrary”. Hence, there is a need to ponder over the inherent flaws of Section 66A and the reasons as to why it has received so much of flak from public intellectuals. Before delving into the nuances of Section 66A, we first need to revisit the status of freedom of speech and expression in the context of Indian democracy.
Freedom of speech and expression is a constitutional liberty which finds explicit mentioning under Article 19 (1) (A) of the Indian Constitution which states, “All citizens shall have the right to freedom of speech and expression.” However, freedom of speech is not an absolute right and has been subjected to reasonable restrictions enunciated under Article 19 (2). These restrictions prevent the citizens of the country from utilizing the freedom of speech in a manner which endangers the “sovereignty and integrity of India, the security of the state and friendly relations with foreign states.” Other restrictions pertain to public order, decency or morality, contempt of court, defamation and incitement to an offence.
Article 19 (2) clearly spells out the constitutional philosophy of the Indian State in regards to freedom of speech and expression. Absolutionism is alien to Indian Constitution. In fact, even the citadel of freedom and democracy, the United States of America too cannot claim to be an absolutionist when it comes to free speech. Though First Amendment Absolutionists including the late Christopher Hitches always advocated in favour of absolute free speech, court judgements in the United States have ruled otherwise. In the case of Schenck vs United States, Justice Oliver Holmes Jr. famously proclaimed that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” This basically meant that the First Amendment could not be used as a cover to spread falsehood.
The fact of the matter is that “your freedom ends where my nose begins.” Hence, arises the need for legislations like Section 66A of the IT Act. All forms of media are regulated via some kind of legislation. The internet or the social media remains largely unregulated. Several problems have been created in the past largely due to the unregulated nature of the internet. In the year 2012, shortly after the Assam riots, doctored videos of the violence in Rohingya were widely distributed on the web. It was claimed that these pictures were emerging from Assam. Through this sinister ploy an attempt was made by certain miscreants to divide the society which ultimately led to the exodus of a large number of North Eastern people from the southern parts of India. Last year’s deadly Muzaffarnagar riots were stoked because of a doctored video posted on Facebook.
By delving into history, we can cite several such instances of cyber crime. Section 66A of the IT Act is an attempt to deal with such excesses. Section 66A makes it an offence to use a computer resource or communication device to pass on information which might be “grossly offensive”. The foremost criticism of Section 66A of the IT Act is the one articulated by Shreya Singhal in her PIL wherein she has challenged the constitutionality of the provision by stating that it is too “ambiguous” and “vague”. Though, this line of argument is pragmatic, nevertheless, it is simultaneously preposterous. Whenever a law is written, it has to be taken into account that the said law stands the test of time. The internet is an ever evolving phenomena growing at a meteoric pace. If Section 66A is loosely framed and does not have a wider ambit then it is quite possible that many instances of hate speech and misinformation would go unchecked.
Secondly, those who frown at the usage of terms like menacing, grossly offensive, insult, injury, danger, enmity, annoyance and inconvenience within Section 66A, should come forward and explain how they would construe Article 19 (2) of the Constitution. Is there a way to possibly define what is moral and decent? Is there a perpetual methodology using which we can predict which speech would harm public order and which one won’t? For all such matters, we have relied on the wisdom of the judicial courts in India and so far, they have put on show a commendable effort. These things vary depending on the circumstances and the situation. Yes, an attempt has to be made by the legislators and the interpreters of the law to give meaning to or define those words which have been subjected to intense criticism. Some of the more ambiguous terms can be expunged but wisdom does not lie in repealing of the entire provision. The larger interest of the nation lies in far-sighted interpretation of the law instead of a parochial one.
In an Op-Ed for The Hindu (An unreasonable restriction, February 20, 2013), Aparna Vishwanath has enlisted the cases which have involved invocation of Section 66A. There is just one similarity in all the cases that have been mentioned. All of those cases have some political connection. Shaheen and her friend Renu, were arrested for criticizing the shutdown of Mumbai city in the aftermath of Bal Thackeray’s death. Jadavpur University Professor Ambikesh Mahaptra suffered because he chose to pass on cartoons poking fun at Mamata Banerjee.
The threat to Section 66A is coming from politicians and hence there is some merit in the argument which says that the section is susceptible to misuse. The solution to this concern lies in de-politicization of the police. Until and unless we achieve so, there is no law in India which the political class cannot use to its advantage. The Central Government had issued an advisory stating that in metropolitan cities Section 66A should not be invoked before consulting an officer of the rank of Inspector General of Police. This kind of a response does not settle the issue because the probability of political pressure is more intense at the higher level. The only solution is complete de-politicization of police as stated earlier. If that doesn’t occur, no matter which law it is, it will be misused.
Another reason why Section 66A cannot be ruled as unconstitutional is because the quantum of punishment which it carries is of just 3 years which is nothing as compared to life imprisonment which one might be subjected to if a person is booked under the law of sedition in the Indian Penal Code. The quantum of punishment under Section 66A, if proven guilty, is in no way opposed to the principles of natural justice. There has also been some controversy over the ambit of Section 66A. People seem to be confused between the words ‘sending’ and ‘publishing’. In his petition before the Bombay High Court (“Section 66A of IT ACT challenged as unconstitutional, Court seeks Centre’s reply,” NDTV, February 28, 2013), Manoj Oswal opined that “Section 66A has not been analysed from a technological aspect, and it does not apply to Facebook, Twitter, websites, blogs, etc. It applies where only a sender and receiver are involved.” Such contentions are indeed very technical and complicated. Therefore, it would be unwise to comment on this sub-judice matter.
However, Oswal’s other claim which basically states that the IT Act can “be misused against the media as almost all the TV channels and newspapers are available over the internet” is frivolous. Why should there be a difference in law for the common people and the media? The media derives its freedom of the press from the same law through which citizens have been empowered with the freedom of speech and expression. Then why should a law which covers common citizens not cover the media? More importantly, in the age of 24*7 news flow and communication, let us not consider our media and judiciary to be so toothless that they would happily allow Section 66A to muzzle down their rights. Is there even one case of arbitrary conviction by any court of law across India under the guise of Section 66A? The previous government’s defence of Section 66A was lacklustre. They made certain controversial references to laws in Britain which ideally should have been avoided. But you cannot blame them for that blunder since the Manmohan Singh Govt. had developed expertise in doing the right things in the wrong way. The concerns revolving around Section 66A are genuine but way too farfetched. Section 66A has irritants but to outrightly claim that it is unconstitutional is wrong.
(The writer is pursuing MA in Convergent Journalism from AJK Mass Communication Research Centre, Jamia Millia Islamia. He has published several opinion pieces, news reports and letters for various news websites. He can be contacted at: http://in.linkedin.com/in/saifahmadkhan)
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