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Updated: February 20, 2013 01:14 IST

An unreasonable restriction

Aparna Viswanathan
Comment (18)   ·   print   ·   T  T  

It is disingenuous for the government to claim its IT law is modelled on British statute when the House of Lords has already read down the U.K.’s worst provisions

On February 6, 2013, Sanjay Chaudhary was arrested under section 66A of the Information Technology (IT) Act for posting ‘objectionable comments and caricatures’ of Prime Minister Manmohan Singh, Union Minister Kapil Sibal and Samajwadi Party president Mulayam Singh Yadav on his Facebook wall.

This arrest follows numerous others over the past few months for political speech through social media: Manoj Oswal for having caused ‘inconvenience’ to relatives of Nationalist Congress Party chief Sharad Pawar for allegations made on his website; Jadavpur University Professor Ambikesh Mahapatra for a political cartoon about West Bengal Chief Minister Mamata Banerjee; businessman Ravi Srinivasan in Puducherry for an allegedly defamatory tweet against the son of Union Finance Minister P. Chidambaram; two Air India employees, who were jailed for 12 days for allegedly defamatory remarks on Facebook and Orkut against a trade union leader and a politician; Aseem Trivedi, accused of violation of the IT Act for drawing cartoons lampooning Parliament and the Constitution to depict its ineffectiveness. However, the incident that rocked the nation was the arrest last November of two young women, Shaheen Dadha and her friend Renu Srinivasan, for a comment posted on Facebook that questioned the shutdown of Mumbai following the demise of Shiv Sena Supremo Bal Thackeray. The girls were arrested under Section 66A(a) of the IT Act for allegedly sending a ‘grossly offensive’ and ‘menacing’ message through a communication device.

Constitutionality of Section 66A

Several PILs have been filed challenging the constitutionality of Section 66A of the IT Act. In a November 2012 PIL, Shreya Singhal submitted to the Supreme Court that Section 66A curbs freedom of speech and expression and violates Articles 14, 19 and 21 of the Constitution. The petition further contends that the expressions used in the Section are “vague” and “ambiguous” and that 66A is subject to “wanton abuse” in view of the subjective powers conferred on the police to interpret the law.

In reply to the Shreya Singhal petition, the Union government defended the constitutionality of Section 66A relying first on the “Advisory on Implementation of Section 66A of the Information Technology Act 2000” issued by the Department of Electronics and Information Technology on January 9, 2013 to the Chief Secretaries and the Director General of Police of all States/UTs. The advisory asks State governments not to allow the police to make arrests under Section 66A of the IT Act without prior approval from an officer not below the rank of Inspector General of Police in the metropolitan cities or Deputy Commissioner of Police or Superintendent of Police at the district level. However, this advisory is clearly not sufficient as political interference in law enforcement is well known and the arrests, as shown above, have not abated.

The Centre has further sought to justify the legality of Section 66A, introduced in the 2009 amendments to the IT Act, on the ground that it has been taken from Section 127 of the U.K. Communications Act, 2003. In fact, Section 66A is very different from Section 127 which, moreover, has been ‘read down’ by the House of Lords on the grounds that Parliament could not have intended to criminalise statements that one person may reasonably find to be polite and acceptable and another may decide to be ‘grossly offensive.’

Section 66A(a) refers to the sending of any information through a communication service that is ‘grossly offensive’ or has ‘menacing character’. In the U.K., Section 127(1)(a) makes the sending of ‘matter that is grossly offensive or of an indecent, obscene or menacing character’ an offence. The drafters of the 2009 amendments to the IT Act in India presumably omitted the words ‘indecent, obscene’ as Section 67 of the IT Act makes the publishing or transmittal of obscene material in electrical form an offence. The meaning of the term “grossly offensive” in both Section 66A(a) and Section 127(1)(a) is crucial and remains yet undefined in India.

In a 2006 judgment in Director of Public Prosecutions v. Collins, arising out of racist references in messages left by a constituent on the answering machine of a British MP, the House of Lords laid down a seminal test for determining whether a message is ‘grossly offensive.’ It agreed with the formulation by the Queen's Bench Divisional Court that, in determining whether a message is ‘grossly offensive’ the “Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances.” The House of Lords added that “there can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context.” Most importantly, the House of Lords held that whether a message was grossly offensive did not depend merely on the degree of offence taken by the complainant but on whether it violates the basic standards of an open and just multi-racial society. This is considered a ‘reading down’ by the House of Lords of Section 127(1) of the U.K. Communications Act 2003, a hugely controversial legislation in the U.K. for its chilling effect on speech. It is particularly relevant in India where the ‘hurt sentiments’ of particular groups (or of individuals purporting to represent particular groups) is viewed by the state as sufficient to take criminal action against speech and expression.

Section 66A(b) is even more problematic than Section 66A(a) because it makes an offence of sending through a computer resource or communication device “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.” Surely it cannot be a legitimate legislative objective to restrict freedom of speech in order to prevent annoyance or inconvenience? Can a democratic society criminalise the causing of annoyance, inconvenience, insult or ill will? Causing insult or ill will or enmity could be a criminal offence if it amounts to defamation. However, insulting someone or causing inconvenience per se cannot surely be a crime in itself either in the real or virtual world.

While Section 66A(b) of the Indian IT Act has unbelievably lumped causing annoyance and inconvenience in the same Section as criminal intimidation and made it subject to the same punishment, Section 127(1)(b) of the U.K. Communications Act is limited to the sending of a message that he knows to be false “for the purpose of causing annoyance, inconvenience or needless anxiety to another.” Section 127(1)(b) itself has been copied from the Post Office (Amendment) Act 1935 in the U.K. and it is very surprising that in the Internet age, not only have British lawmakers sought fit to copy from what is clearly outdated legislation, even worse, their Indian counterparts are so neo-colonial in their drafting that they even copied the British mistake of applying 1935 legislation for one-to-one postal communications to social media despite the much greater chilling effect on free speech.

Section 127(1)(b)

The punishment for the offence in Section 127(1)(b) is a maximum of six months’ imprisonment or a fine of £5,000 while Section 66A imposes a much more serious punishment of imprisonment up to three years and a fine without limit. Therefore, Section 66A(b) of the IT Act is not the same as Section 127(1)(b) of the U.K. Communications Act, 2003 in terms of scope of the offence or the punishment.

Ironically, the Indian government defends Section 66A by saying it has been copied from Section 127 of the U.K. Act, while in the U.K., there are calls for repeal of this Section, already ‘read down’ by the House of Lords in order to ensure compliance with Article 17 of the European Convention on Human Rights. Instead of defending Section 66A on the grounds that it has been copied from U.K. legislation, the Union Government should take inspiration from the House of Lords’ view about what is ‘grossly offensive.’ This is the standard that should have been incorporated in the advisory issued by the Department of Electronics and IT.

Section 66A certainly does not engage in the delicate balancing required to pursue the legitimate objective of preventing criminal intimidation and danger through social media without going no further than required in a democratic society to achieve that end. The drafters of Section 66A(b) have equated known criminal offences in the real world with acts such as causing annoyance and inconvenience that can never constitute an offence in the real world and should not be offences in the virtual world. Therefore, the legislative restrictions on freedom of speech in Section 66A(b) cannot be considered as being necessary to achieve a legitimate objective. Section 66A should not be considered a ‘reasonable restriction’ within the meaning of Article 19 of the Constitution and must be struck down as an unconstitutional restriction on freedom of speech. If political speech, that is, criticism of politicians and exposure of corruption continues to be punished by arrest instead of being protected, India's precious democracy and free society will be no more.

(Aparna Viswanathan is a lawyer and author of Cyber Law: Indian and International Perspectives (Lexis Nexis, Butterworths, Wadhwa 2012))

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Why are we still making/drafting our laws and legislation after British ones? When are we going to get ourselves rid of the colonial mentality? Can a country with such a rich inheritance not have its own independent thinking and will to find its own identity? It is baffling that the legality of 66 is defended by saying "hey we took it from the brits". How does that justify it?

from:  Kimish
Posted on: Feb 22, 2013 at 00:02 IST

Appreciate the quality of journalism in the hindu. perhaps, the guardian and hindu are old fashioned/non-tabloidal journalisms last stand.

from:  Abhinav
Posted on: Feb 21, 2013 at 20:58 IST

The last words are very correct. If this Act continues unamended, it
will completely kill the very right, freedom of speech. It is completely
ambiguous how the government still remains silent albeit such
controversies over these issues go on. If that is the veracity and
correctness of the Act, then what is left for freedom of speech?, why do
many want the Act to be amended? Is this really a 'democratic' country
where people are above everything?

from:  Jayasimha
Posted on: Feb 21, 2013 at 07:40 IST

If exposing our thought is crime then why in the parliament, voice of
common people, always offence each other and do not job of solving out the problems of country.

from:  Lokesh khatri
Posted on: Feb 20, 2013 at 21:35 IST

Completely agree with the author. 66A of the IT Act needs to be reworded carefully to leave no room for misinterpretation, willful or otherwise. The current trend of having the innocent arrested and the criminals running free does not inspire confidence in the law enforcement agencies. As Justice Verma states in his report on the amendments to criminal law the root cause of these issues is a failure of governance.

from:  Samir Mody
Posted on: Feb 20, 2013 at 20:55 IST

It is very unfortunate that the country which boasts itself as the world's largest democracy is spewing out venomous teeth to chew out the rights of the people in every day life. Many a time a person is just put behind bars for a long time at a mistake that can be opposing someone's move in written form. The very fundamental right, Freedom of Speech, has turned very hazardous for the people as they are no longer supposed to be expressing his/her opinion about a certain personality or act. Section 66A has succeeded to lynch the most possible rights to express or speak out in the public or on social networking site. What if the rights of people were crushed down in the name of obscenity or hatred, can one dare protest against anything illegal happening under his or her nose??? Is this a step forward to further smash the right of the people in all possible forms and transform the country from democracy to autocracy??? This is a very high time for us to come forward to eliminate such acts.

from:  Sohrab Sherghatvi
Posted on: Feb 20, 2013 at 16:52 IST

The section 66A of the IT Act is draconian in spirit and its recent
implementation has only reinforced this view. It is a foregone
conclusion that flow of information and its power to enlighten the
masses has raised exponentially. Gone are the days that press and
information flow was closely guarded secret of the government to
stifle the movement of the people. The said section of the IT Act is
to silence critics and to instill fear among the active netizens who
share knowledge and propagate their views freely. This is also an
attempt by the government to stifle the freedom of speech as enshrined
in the constitution of India. My only fear is that, India, by copying
a piece of legislation from the UK IT laws (n proudly claiming so) is
poorly showing itself to be still a dominion state of the British
Empire which it should desist itself from projecting as such on the
occasion of the British PM'S visit to India.

from:  Atul
Posted on: Feb 20, 2013 at 15:39 IST

The Government (read as political class) is really worried about petty
comments. In olden days Kings used to go out at nights in mufti to
know what people are thinking about his rule. Now, here is a class of
rulers who don't want to talk anything about the Government in open.
You feel it inside and don't express it. If scientists succeed to
invent any such device that helps to know what is in people's mind,
the Government will surely deploy it to repel any antagonism against
it. This is utterly misgovernence by our greatest leaders. What to
comment about this insensitive class. They are shameless to say the
least.

from:  A.VENKATA SIVAIAH
Posted on: Feb 20, 2013 at 15:10 IST

Deriving inspiration from laws extant in other jurisdictions is not
problematic if they are not thoughtlessly transplanted and are rather
conditioned according to the taker's need. Jurisprudence on freedom of
speech and expression in India lacks defined contours and we keep
dwindling from Hicklin's test to the US's 'community standard' test.
Taking a look into the Canadian experiment with 'harm principle' where
only those categories of speech are unprotected which cause direct
harm to someone might help the current legal doldrum and smoothen the
adjudication process. It must be remembered that the freedom of speech
and expression is intrinsically different from other liberties upheld
by liberal democracies as its restriction might usher Orwell's 1984
kind of government, completely demolishing the aspirations of civil
society. Such a threat is indeed real with the growing connivance of
state and private players to distort the openness of internet
architecture.

from:  Salmoli
Posted on: Feb 20, 2013 at 15:02 IST

Yet another criticism of Section 66(A) under IT act. What i believe is
that our executives need this law to check malicious false propaganda
against some individual or caste or creed. The main point to emphasize
here is that the words must be judged taking account of their context
and all relevant circumstances rather than just taking cognizance of
hurt sentiments of people. Like in case of Asish Nandi. Need is to
implement the advisory more effectively with higher officials taking
onus of prudently deciding if a case comes under this act or not. And
to reflect this changed outlook these sections should be rephrased.

from:  Deepak Jakhar
Posted on: Feb 20, 2013 at 13:11 IST

It is very appropriately said by writer that insulting someone or causing inconvenience per se cannot surely be a crime in itself either in the real or virtual world. Because if this is a crime that most of the persons in Indian parliament or any state legislature are crimanl because they are insulting the people of India by not doing their duties properly and wasting the indian tax payer's money. I feel insulted because these MP's and MLA's who should be the voice of common peoples in parliament or legislature are involved in dirty politics and making absurd comments on each other's character rather than doing their work sincerely. Should these MP's and MLA's not be arrested for insulting India people's on national Televisions?

from:  sunny
Posted on: Feb 20, 2013 at 13:10 IST

How annoyance and inconvenience can be considered as crime? It directly weakens the freedom of speech. And moreover, why only politicians everytime get annoyance and inconvenience. There are N number of spoofs on cricketers, actors, corporate persons but, no one gets offended.
Our "young and bold" politicians has to understand that India is a democratic nation not a dictator one.

from:  Dinesh.b
Posted on: Feb 20, 2013 at 13:06 IST

India's legal luminaries may have copied from U.K. laws without much debate, and tweaked a bit here and there without a clue. Granted. Debate involving parliament and society at large did not occur. But are we blaming U.K. for this failing of ours ?

from:  Kumar
Posted on: Feb 20, 2013 at 12:56 IST

In that case, according to Section 66A (b), most of the guests who
debate on news channels should be behind the bars as they one or the
other way causing inconvenience/insult/enmity/annoyance to others or
the public. So, point here is without causing inconvenience to others,
how one can fight for a good cause or even how one can fight against
the corruption in India. Legitimacy in making a new law should always
foresee how well this act can bring the progress of living citizens in
a state or province. It’s highly disturbing to see how the Section 66A
(b) of the Indian act has been copied directly from Section 127(b) of
the UK communications act which is again a copy from Post office Act
1935. The term freedom of expression includes any act of seeking,
receiving and imparting information or ideas or opinions, regardless
of the medium used.

from:  Subramanya GT
Posted on: Feb 20, 2013 at 12:11 IST

This is not the first time that the law is used like a playdoll. Altering law as per one's whims and fancies has been a common practice since ages specially in India. As mentioned in the article the statements in the act should give no room for ambiguity , it should be as discrete and elaborative as possible, that's the only way one can beet law the judicial way and protect the so called human rights.

from:  chhavi chawla
Posted on: Feb 20, 2013 at 11:51 IST

[Instead of defending Section 66A on the grounds that it has been copied from U.K. legislation, the Union Government should take inspiration from the House of Lords’ view about what is ‘grossly offensive.’] But... wouldn't this be neo-colonial?

[India's precious democracy and free society will be no more.] You speak as if they ever existed.

from:  Ashu
Posted on: Feb 20, 2013 at 09:32 IST

we are in a wrong impression that we are independent
actually we are dependent
we have to beg for each and everything to our so called
representatives and its their privilege to listen or not

from:  mohit
Posted on: Feb 20, 2013 at 08:58 IST

Govt. needs to spend its resources to provide better living conditions
for people. The objectionable postings will automatically stop.

from:  shouvik mukhopadhayay
Posted on: Feb 20, 2013 at 02:28 IST
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