Thursday, 5 December 2019

Why Should Section 66a Of The I.T. Act Not Be Deleted?

Updated: January 5, 2013 2:15 pm

It is most obnoxious and one is totally gobsmacked to note that in our nation where our leaders believe in holding talks with terrorists and releasing them out of turn even after they lay mines and blow off hundreds of our brave soldiers in just one go should advocate retaining Section 66A of the Information Technology (IT) Act, which damns a person to jail for three years just for airing views on Facebook or anywhere else online. Time and again, it has been wrongly misused but now all limits have been crossed! The entire right minded section of society is quite worked up over it.

Not surprising that the Supreme Court too fumed while strongly endorsing the huge public outrage over the utterly condemnable manner in which two Palghar women Shaheen Dhada and Rinu Srinivas were arrested by the Maharashtra police for posting their own honest views pertaining to shutting down of Mumbai on November 18 after Bal Thackeray’s death . It minced no words in lashing out: “The way the children were arrested and treated like criminals outraged the conscience of a major section of society …” A bench comprising Chief Justice of India Altamas Kabir and Justice J Chelameswar further vented its anger by saying: “The Maharashtra government is directed to explain the circumstances under which the two girls Shaheen Dhada and Rinu Shrinivasan were arrested for posting comments made by them on Facebook. When were these girls arrested? As per the media reports, they were arrested after sunset? Might of the police, it seems, got activated only after the sunset.”

The bench asked the state government to file its response within four weeks on the public interest litigation filed by a Dehi law student, Shreya Singhal. It also said: “The way in which the state has reacted in this case and also the police action, we think that this matter requires some consideration from us.” The court, it must be pointed out here, also took note of a similar incident in which a professor from Jadavpur University in West Bengal was arrested for allegedly posting a cartoon online showing Chief Minister Mamata Banerjee in poor light. This action of the court ensued as a consequence emanating from senior lawyer Rohatgi citing the incident to demand that Section 66A of the IT Act was “vague, undefined and was being used to curtail one’s freedom of speech and expression”.

The bench of apex court also made as parties the governments of West Bengal and Puducherry where similar incidents had occurred in the recent past. It also issued notice to the Delhi government along with them and sought their response within four weeks and posted the matter for hearing after six weeks. Attorney General Goolam E Vahanvati, whose assistance was sought by the court remarked, “Please examine Section 66A of the Information Technology Act, 2000 and I will assist the court on this issue.” Vahanvati also referred to the guidelines which say that cases to be registered under the provision of the IT Act have to be decided by senior police officials of the ranks of DGP for cases pertaining to rural areas and IGP for metros. He also said: “This can’t be done by the head of the police stations” and added further that this was a matter which required the court’s consideration.

It is also pertinent to point out here that as soon as senior advocate Mukul Rohatgi sought an urgent hearing on a petition by 21-year-old law student Shreya Singhal, a bench of Chief Justice Altamas Kabir and Justice J Chelameswar was quick to point out: “We was wondering why no one was approaching the court and were thinking of taking suo motu notice of the incident.” Mukul Rohatgi also sought a direction from the court to all the states that no cases be registered across the country until such complaints were seen and approved by the DGP of the state concerned as “the law and order is a state subject and unless there is some kind of order from this court, this (abuse of the provision) may not stop”. Rohatgi very rightly pointed out that Section 66A of the IT Act, which gives power to arrest was “wholly unconstitutional” and needed to be done away with. The bench asked for the assistance of Attorney General Goolam E Vahanvati to decide the legal issues involved. Even as the bench said that it would prefer to wait for the Attorney General’s views, senior counsel Rohatgi persisted by mincing no words in conveying: “We get so many pesky calls despite rules and regulations prohibiting it. It causes a lot of annoyance to every person who gets these calls or SMSes. Should all those who send these SMSes or make the calls be arrested under the Act?” Eminent journalist Barkha Dutt very strongly feels: “But, as with all things new, the government has either not understood how social media works, or, even more ominously, has understood it all too well and is thus seeking to police it with a vaguely worded section under the IT Act that leaves it open to gross misuse. Legal recourse is the right of every citizen. That doesn’t mean, however, that Section 66A is either a reasonable law or a desirable one. Defamation laws in the country are sufficient in themselves to cover complaints of unsubstantiated allegations. Let the courts have the last word on those. Not a draconian law that gives the police, and by extension politicians overarching, unregulated control over what we write and how we think.”

Rajeev Chandrasekhar who is a Member of Parliament lays bare very forcefully his pragmatic views on this in The Times of India “Don’t kill freedom of speech”. He says: “Along with many other Indians, I am not satisfied by our government’s approach both to the internet and to the millions of Indians using it. It defies logic and does not adhere to the values of our republic and democracy. Governments everywhere have the same instinctive fear of the internet because it represents free and unfettered views, and, unlike conventional media which is vulnerable to coercion, is completely unmanageable for the establishment. And that, predictably, makes governments try to fetter this free and vibrant medium ; a natural instinct for those in power who fear being challenged. This misuse of vague rules has now started coming home to roost. In the Shaheen Dhada case she was arrested along with a friend under Section 66A of the IT Act as well as other sections of the IPC on the basis of a Facebook post she had made and this has clearly outraged the country.” Early this year, a PIL was filed, about which very few are aware, in the Madras High Court challenging the legality and constitutionality of Section 66A. This followed the arrest of an India Against Corruption activist on the charge of posting an offensive message on social media against P Chidambaram’s son Kartik. The activist here too was promptly arrested by the police on a complaint lodged by the minister’s son.

Nikhil Mehra, an advocate with the Supreme Court of India, very elegantly wrote in the Hindustan Times with the heading “Tomorrow, you may be at receiving end” that, “Section 66A aims to criminalise any kind of speech which appears ‘grossly offensive’ or ‘annoying’ or ‘inconvenient’ to someone. These are matters of highly subjective evaluation. And on the subjective whim of and sensibilities of another person, you could be sent to prison. Assume a situation where you post a status update on Facebook or upload a tweet suggesting that your local shop owner has caused you grave inconvenience by refusing home delivery of your kirana goods. He can claim that he finds it an ‘annoyance’ that you spoke brashly of him. He could also potentially have you arrested under Section 66A of the IT Act merely because you chose to express yourself on the internet. Something he could not have done otherwise had you expressed yourself offline. That is exactly how draconian the law is. Criminal law was never meant to be this broad or imprecise. This law forces us to be unnaturally civil. Any opposition to it deserves the unwavering support of one and all. Yesterday, it was two innocent girls in Palghar. Tomorrow it could be you.”

 By Sanjeev Sirohi

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