In 2008, the United Progressive Alliance (UPA) government made an amendment to the Information Technology Act 2000 and added Section 66A to the Act. The amendment ostensibly targeted those who wrote offensive, false or threatening information on the Internet using a communication device. A conviction would fetch a maximum of three years in jail and a fine.The amendment was passed in both the houses of the Parliament and was supported by all parties. Last year, the BJP-led government defended this law in parliament. However, in April 2015, the Supreme Court struck down Section 66A, describing it as “draconian”.
What did Section 66A say?
According to the law, if anyone sent information that was “grossly offensive” or of “menacing character”, then the sender would be punished. The law also said that punishment would be given to the person who spread “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”. The last clause of the law said “any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punished.”
What’s wrong with that?
A lot, but don’t take our word for it. Here’s what the Centre for Internet Society had to say:
“…the careless phrasing [of Section 66A] makes it anything but an anti-spam provision. If instead of ‘for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages’ it was ‘for the purpose of causing annoyance and inconvenience and to deceive and to mislead the addressee or recipient about the origin of such messages”, it would have been slightly closer to an anti-spam provision, but even then doesn’t have the two core characteristics of spam: that it be unsolicited and that it be sent in bulk. (Whether only commercial messages should be regarded as spam is an open question.) That it arise from a duplicitous origin is not a requirement of spam (and in the UK, for instance, that is only an aggravating factor for what is already a fine-able activity).
Curiously, the definitional problems do not stop there, but extend to the definitions of ‘electronic mail’ and ‘electronic mail message’ in the ‘explanation’ as well. Those are so vast that more or less anything communicated electronically is counted as e-mail, including forms of communication that aren’t aimed at particular recipients the way e-mail is.
Hence, the anti-spam provision does not cover spam, but covers everything else. This provision is certainly unconstitutional.”
Another senior lawyer who wished to remain unnamed said, “The provisions of this act criminalize the communication process. The way it was passed in Parliament raises the question that it was made to criminalize the freedom of speech. This law was against human rights and if you look at the arrests you will see that is exactly what happened.”
Arrests Under Section 66A
It was in 2012 that Section 66A became big news because of how many people were arrested for writing or posting ‘offensive’ photos, write-ups and other seemingly innocuous updates on social media. Here are a few of the cases that drew attention to Section 66A’s draconian potential.
AseemTrivedi, 2012: Trivedi is a political cartoonist and was arrested by Mumbai police for posting cartoons that mocked the Indian parliament and political corruption. He had posted the cartoons on Facebook and on his website.
The Palghar Girls, 2012:ShaheenDhada and RenuSrinivasanfrom Palgharwere arrested after they posted a question on Facebook about whether Mumbai should shut down for Shiv Sena leader BalThackrey’s funeral. One of them posted this question to another one’s Facebook wall.
Ambikesh Mahapatra and SubrataSengupta, 2012: JadavpurUniversity’s professor Ambikesh Mahapatra and his neighbour Subrata Sengupta were arrested for allegedly posting cartoons mocking West Bengal chief minister Mamata Banerjee and Trinamool Congress leader Mukul Roy.
The Supreme Court to the rescue
On March 24, the Supreme Court scrapped Section 66A, describing it as unconstitutional. “It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right,” said the bench.
The reaction to Section 66A was overwhelmingly positive on social media, but as far as the political establishment was concerned, the response was mixed.