A friendly warning: think twice before uploading criticism against anyone, particularly public personalities and politicians, on social media.
Before you can say “Tim Berners-Lee”, the police can enter your premises without warrant, and arrest and put you behind bars in no time while acting on any complaint that may describe your criticism as “grossly offensive” or “of menacing character”.
Yes, in the age of information and technology, we appear to be kissing goodbye to the Constitution-guaranteed fundamental right of freedom to speech and expression ever since Section 66A was introduced in the Information and Technology Act (IT Act) in 2009.
Instances are plenty, the most recent, high-profile being the arrest of two young Mumbai women.
One posted a comment on Facebook on the megapolis shutting down after Shiv Sena supremo Bal Thackeray’s death and the other ‘liked’ it.
Both were arrested and terrorised.
And who can forget the arrest of a Jadavpur University professor after he forwarded cartoons of Bengal Chief Minister Mamata Banerjee earlier this year.
Ms. Banerjee went on the offensive terming the act of posting her pictures by the professor on the Net a cyber crime that deserved legal action.
Also arrested recently was a small-scale industrialist for posting what was called “offensive” tweets on the Union Finance Minister’s son, Karti Chidambaram.
A large pool of the city’s legal fraternity describes this section of the IT Act as a “hidden tool” to curtail free speech and expression in the guise of controlling electronic communication.
“Section 66A undoubtedly is not only vague, but also [strikes at] the very root of the Article 19 (1) (a) of the Constitution, which guarantees freedom of speech and expression to every citizen,” says B.V. Acharya, former Advocate General and former member of Law Commission of India.
He wants these provisions to be immediately repealed or amended by Parliament to protect the Constitutional right of free speech and expression and to ensure that misuse of power is avoided or eliminated.
Power to the police
The worst part of the Section 66A is that its subsection (a) does not spare anyone from the offence even if their comments are found to be true.
Mr. Acharya says anyone disseminating information in electronic form — whether it is true or false — faces the consequences once the complainant claims that comments are “grossly offensive” or “of menacing character”.
However, terms such as these are “vague” and also not defined in the law, Mr. Acharya says and points out that this gives unbridled power to the police to interpret them as they please.
Pointing out that punishment prescribed in a law should be proportionate to the gravity of the offences, he says that offence under Section 66A is cognisable, non-bailable, and the police have power to arrest without a warrant.
Besides, he says, imprisonment (up to three years) is an automatic result of a guilty verdict as the courts have not been given the power of choosing imprisonment or fine as mode of punishment, unlike under Section 500 of Indian Penal Code (IPC) related to defamation.
Prakash K.M., an advocate practising in the field of IT law, confirms that provisions of Section 66A “can be interpreted in any way” and is certainly a “hidden tool” to restrict free speech in a democratic country.
“Section 66A, no doubt, is the result of a shoddy piece of legislative work. At the same time it reflects on the quality of debate that takes place on legislation in Parliament. One should find out how much time Parliament spent to pass the IT (Amendment) Act 2008, which introduced Section 66A,” according to Mr. Prakash.
Chandrashekar, another advocate, says that nowadays it has become common for people to express their views frankly on social media.
He says unprecedented levels of corruption, mainly involving bureaucrats and politicians, “and naturally criticism against them”, dominated all forms of media, including social media.
“Now people are beginning to experience the landmines buried in Section 66A by our administrators as a tool to protect them from criticism,” he says.
Though the National Crime Records Bureau (NCRB) statistics disclose a steep increase in the number of cases registered under IT Act and as well as the number of persons arrested (from 154 in 2008 to 1,184 in 2011) under various provisions of the Act, they don’t disclose either the number of cases booked or persons arrested under Section 66A.
Many legal experts say that the need of the hour is a countrywide online and on-road movement against Section 66A to protect our fundamental rights.