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An unreasonable restriction

Aparna Viswanathan
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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))

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


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