It is time for politicians and their civilian aides to brush
up the war of words again; the general election knocks at the door and everyone
is up to exercise the Rights that actually pillar the core philosophy of
democracy. In this course, many Right to
free speech chilling laws get tested and the independence of the judiciary
is proved again and again. The time has come back with yet another law, S.66A
of the Information Technology Act, 2000(amended in 2008), which restricts
sending offending messages through communication devices in India. This time it
is a woman lawyer and human rights activist who is caught in the web world for
her exercise of free speech rights under S.66A. While The Hindu
reported that the accused activist had been sent a legal notice by the
complainant and she had also replied to it, I could not ascertain from the news
reports whether this accused was given any further chance to prove herself not
guilty, as she was reportedly arrested on a police complaint on the same ground
by the complainant and sent to judicial custody (See S.Murali, FB posting on T.N. Governor lands PUCL activist in custody (May14,
2013). Published in The Hindu, pg 1).
It is unfortunate to note that this is the same provision which has been used to arrest the person who had
used apparently ‘offensive’, ‘derogatory’ remarks about politicians; the first
reported case being that of a Professor
in Kolkata for allegedly distributing cartoons ridiculing West Bengal chief minister, the second being
the case of Palghar girls Facebook case, the third being the case of arrest
of two
Air India employees for their alleged derogatory posts about politicians
including the Prime minister of India, the fourth being the case of Twitter
posts by a Pondicherry based individual commenting about politician and union
minister P. Chidambaram’s son ( see for chronology India's dilemma
continues as highlighted by Subhajit Basu. http://works.bepress.com/subhajitbasu/76/)
. Supporters of Free speech demanded the amendment of S.66A due to such thought
less misuse of the provision. But at the same time, it has also been understood
that the law has some potentials to restrict offensive, unwanted, derogatory
speech when it comes harassment of true victims, especially women. I am one of
the supporters of S.66A due to it’s this very quality. But consider the
statement of the Twitter post accused Ravi, who argued “they could have sent me
lawyer’s notice or investigated the complaint before taking action” (see PrasadKrishna, Post and be Damned (Nov 19, 2012), published in http://cis-india.org/news/telegraphindia-opinion-story-kavitha-shanmugham-nov-14-2012-post-and-be-damned).
This statement holds the key to quiz the action of the complainants who drove
the police to take action in all these cases. S. 66A in its starting phrase in
clause (b) puts a water-mark caution by stating that “any information which he
knows to be false, but for the purpose of causing....”; the provision thus
clearly shifts the burden of proof on the person who posts the information and
by this the ‘sender’ becomes protected by due
process of law. Time and again, this important factor in the apparently
controversial S.66A has been over looked by those who wished to use the State
to gag the right to free speech without following proper process established by
legal rules. Unfortunately, such persons had been successful due to their
heavily influential positions and less aware police force. This has been proved
in the Palghar Facebook case (see http://articles.timesofindia.indiatimes.com/2012-11-19/india/35204312_1_arrest-state-bandh-prithviraj-chavanhttp://articles.timesofindia.indiatimes.com/2012-11-19/india/35204312_1_arrest-state-bandh-prithviraj-chavan).
It is ironical to note the common man’s
observation in this regard; in the comment section of the NDTV news website(see
http://www.ndtv.com/article/south/woman-human-rights-officer-arrested-for-posting-objectionable-content-on-facebook-account-366280?pfrom=home-lateststories)
where this report is published, many persons have expressed their anguish over
how the police and the law are up to help the politicians and not the ordinary
civilians who may become victims of harassing, abusive, defamatory posts. True!
Such
quick reaction from the police is still a distant dream for many victims,
majority of who are women. It is further ironical to note that while instantly
the posts in the above cases are taken down or the concerned social media are contacted
to take down the offensive information, many women victims in actual on-line defamatory cases continue to languish due to slow process of investigation. It
needs to be remembered that Police should be used as a machinery to prevent
imminent danger to really needy victims and not as a tool to stop the due
process of laws by those who can afford to roll it. Understandably costs of
hiring a lawyer and sending notice to the alleged harasser may not be affordable
for many women who may be financially dependent
on the male members of the family ( I observed this in my presentation in
Sweden Criminology Symposium in 2012. The excerpts of my findings are compiled by
Johanna Hagstedt, in “Risk behaviours increase exposure to cyber crime”
(October 5, 2012) Available @ http://www.criminologysymposium.com/symposium/event-information/2012/archive/news/2012-10-05-risk-behaviours-increase-exposure-to-cyber-crime.html).
This makes the police the last hope for the victims. Let us hope that the
supremacy of the fair process of laws is established again and the society
understands the actual role of the police.
Please
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please cite it as “Halder D. (2013), “The police and S.66A again......” 14th May, 2013, published in http://debaraticyberspace.blogspot.com/
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