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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
COVER STORY

LIBERALIZING SOCIAL MEDIA

Time to Redraft Section 66A IT ACT

Hemant Kumar, Advocate
hemantkumar.mallb@gmail.com
Apropos the outrage witnessed over reported abuse of section 66A of IT Act, 2000 in a series of instances by law enforcement agencies indeed disseminate a worrying signal amongst netizens that the State tends to indulge in strict moral policing of cyber space. Notwithstanding the fact that the spirit behind incorporation of the same is for the larger societal interest, the “vague” language used in the text of concerned provision of law has resulted in its erroneous application and faulty application by those who are supposed to administer it which in turn is causing serious concern coupled with raising of voices by civil society demanding its scrapping altogether or at least suitable re-wording.

On November 30, 2012 a Bench of the Supreme Court comprising Chief Justice of India (CJI), Justice Altamas Kabir and Justice J. Chelameswar while entertaining a Public Interest Litigation (PIL) filed by a 21-year old student of Delhi University, Shreya Singhal assailing section 66A of the Information Technology (IT) Act, 2000 owing to its repeated misuse by law enforcement agencies in certain parts of the country expressed its strong displeasure over the matter . The Bench agreed to examine the constitutional validity of the aforesaid provision. It issued notices in this regard to the Union of India and states of Delhi, Maharashtra, West Bengal and Union Territory of Puducherry. The case is slated to come up for further hearing on January 14, 2013.

It may be recalled that the ibid impugned section 66A was not provided in the original IT Act as enacted by the Parliament in the year 2000 and the same was only incorporated in the statute by an Amendment Act enacted in December, 2008 which was further enforced in October, 2009. It also merits due reference that for straight three years after its enforcement, no netizen or citizen across the country contested or protested against the same. It was only after a series of happening of certain unfortunate incidents last year wherein the instant provision of law was allegedly abused by police authorities by applying the same on certain users of social media who were just commenting and sharing their views amongst their fellow netizens over a host of contemporary events and issues. Such an action by authorities tends to muzzle their democratic Freedom of Speech and Expression which is guaranteed to all citizens of the country via Article 19(1)(a) of our Constitution. When this reported misuse of section 66A hogged media headlines and erupted such an outcry across the country, civil society took a strong exception of the issue with even CJI stating in open court that the Apex Court was contemplating of taking suo motu cognizance of the same had someone not moved by way of a PIL over the vexed issue.

Pertinent that owing to eruption of hue and cry over the issue, just a day before on November 29, a meeting of the Cyber Regulation Advisory Committee was also held under the chairmanship of Kapil Sibal, Union Minister for Communication and Information Technology to discuss the issues related to the Information Technology Act, 2000 which was attended by representatives of Government, Intermediaries, Industry Associations as well as Members of civil society.

The brief presentation made during the meeting highlighted the fact that the same words as used in certain sections of the IT Act including in section 66A have also been used in the statutes of other democratic countries and the same are quite contextual. However, the consensus suggested that a suitable clarification in the form of guidelines in this regard be issued by the Government to States and Union Territories to clarify the intent and enable uniform implementation across the country. A consensus on the content of the draft guidelines was also arrived at.

It nevertheless appears quite ironical that while according to the new set of guidelines issued by the Central Government, power relating to application of section 66A of IT Act including ordering arrests for alleged violations has been delegated to senior police officers viz . not below the rank of Deputy Commissioner of Police (DCP) in respect of rural and non-metro regions and not under the rank of Inspector-General of Police (IGP) for metro areas, section 78 of the Act which provides for power to investigate offences was amended in 2009 so as to lower the status of a police officer from the rank of "Deputy Superintendent of Police" to that of "Inspector" below which no one can investigate any offence under this Act. Be that as it may, it would be too pre-mature to predict at this juncture that just upgrading the rank of a police officer in respect of imposition of only section 66A and that too merely by issuance of advisory guidelines to State Governments/UTs would be able to check its abuse or misuse.

In an interview given to NDTV Group Editor, Barkha Dutt on November 29, Kapil Sibal while acknowledging that there has been "over-reach" in application of section 66A in certain unfortunate incidents by concerned authorities, did strongly defend the continuance of a special law ( herein the IT Act) to deal with offences related to computer/internet as the nature of law to deal with such cases has to be inherently different than that of ordinary civil or criminal laws. He asserted that as internet itself is evolutionary, so decision-making of the government should also be evolutionary. He finally summed up saying that no law is panacea for the future, every law is for the present and it seeks to deal with the future. If even after the framing of above guidelines, there seems no change on the ground, the government is ready to re-visit the law, opined Sibal.

It is noteworthy to mention here that the Information Technology (Amendment) Bill, 2006 as tabled in Lok Sabha in December 2006 by the then Union Minister for Communication & IT, Dayanidhi Maran inter alia proposed that under newly introduced section 66A, the maximum punishment would be imprisonment for two years as against currently prescribed period of three years. Even present part (c) of section 66A which ought to cover only internet spam but is vaguely worded thus inviting severe criticism from activists was not included in that Bill. Further, the ibid Bill under new section 77B had clearly proposed that no court shall take cognizance of certain offences including under section 66A except upon a complaint made by the person aggrieved by the offence. Even no power to arrest without warrant was proposed to be provided to police officers in respect of non-cognizable offences under the Act.

This Bill was much in line with the report of an Expert Committee constituted in January 2005 by the Central Government under the Chairmanship of Secretary, Department of IT and comprising various representatives of apex industry associations, IT industry, service providers, legal experts in Cyber Laws etc. to examine/review the IT Act, 2000 and suggesting suitable amendments to it in line with contemporary changes and developments. The Committee submitted its detailed report in August, 2005. The recommendations as suggested by it were far more benign and liberal and in line with conditions and cultural sensitiveness prevalent in our Indian Society.

Noteworthy that a large number of amendments were made in that Bill by A. Raja, the successor of Dayanidhi Maran in December, 2008 just before the passing of aforesaid Amendment Bill by the Parliament. These amendments were a result of the report of Standing Committee on Information Technology to whom it was referred for detailed examination. Remember, the Bill so passed was one of those unfortunate pieces of legislations which were cleared by the Lok Sabha within minutes without any debate amidst much uproar.

Sharing his deep concern over the incidents where section 66A has been wrongly applied by the police authorities, Milind Deora, Union Minister of State for Communications and Information Technology opines that the IT Act only provides a legislative framework for India's cyber world. Leaving India's internet lawless is neither prudent nor in line with global practices. Of course, he admits that there is a requirement of legal and administrative changes on the ground that can renew our youth's confidence in their inalienable freedom of speech and expression. He strongly asserts that section 66A which was made a bailable offence would continue to be so. Deora reiterates that government's role is limited to providing and enabling legislative framework to protect nearly 380 million internet-enabled mobile phone users and 125 million registered internet users, regardless of whether someone is a student or a VIP.

Reacting on the subject, noted cyber law expert and an advocate of the Supreme Court, Pavan Duggal is of the viewpoint that there are tremendous problems in the way section 66A has been drafted.  This provision, even though has been inspired by the noble objectives of protecting reputations and preventing misuse of networks, has not been able to achieve its goals.  The language of section 66A goes far beyond the reasonable restrictions on free speech, as mandated under Article 19(2) of the Constitution of India.  For India, being the world's largest, vibrant democracy, reasonable restrictions on free speech need to be very strictly construed.  Section 66A has the potential of prejudicially impacting free speech in the digital and mobile ecosystems.  The ibid section needs to be amended to made the Indian Cyberlaw in sync with the principles enshrined in the Constitution of India and also with the existing realities of social media and digital platforms today.

Finally, it can be concluded that notwithstanding the fact that the aforesaid section 66A has been allegedly abused in some cases by none other than the law enforcement agencies which resulted in a state of nightmare for certain hapless netizens and erupted a sense of fear psychosis amongst members of social media in the cyberspace who are constantly expressing and posting and sharing their free comments and views regarding contemporary events or developments, the same does not merits drastic dilution much less than scrapping of concerned provision(s) in our IT Act as the misuse or faulty application of a duly enacted law by those who are not fully aware of its proper interpretation and well-trained about its due implementation in appropriate cases surely cannot be a ground for its altogether abolition as the same might prove to be rather counter-productive. Remember, if the State has to protect Right of Freedom of Free Speech, it is also duty bound to preserve the Rights of alleged victims.

Of course, it would be imperative on the part of the Central Government if the language of section 66A is re-visited and suitably re-worded after broader consultations and due involvement of all stakeholders so as to dispel criticism regarding its 'vague' nature but without weakening the spirit behind the same. Alternatively, it would be wise if certain 'illustrations' are added beneath this section which tend to elaborate in unambiguous terms about what sort of sent/transmitted messages/information can be termed to be "grossly offensive" or of "menacing character" although the same cannot be fully exhaustive. But whatever initiative is taken in this regard by the Government should be accompanied by a suitable amendment in the IT Act as advisories or guidelines are never or seldom observed by the police and the law enforcement agencies owing to their non-statutory nature. Ultimately, with impartment of suitable training to the concerned personnel of law enforcement agencies and in a due course of time, it is highly hoped that the 'wisdom' of those who are supposed to administer IT law would develop further which would result in making the fast growing medium of internet much more freer, safer and positive experience for all of us.

 
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