When you read about S.66A of the Information technology Act,
2000(inserted through amended Act, 2008), the first thing you may note is its
broad scope on censoring freedom of speech. The provision is named as “punishment for
sending offensive messages through communication services etc.” I had been an
ardent fan of it since it came into effect in 2008 especially because it
promised to prohibit harassment, threatening, defamation (call whatever name
you wish to) not only against all netizens, but especially against women. in
2008 India did not see Nirbhaya uproar, which finally gave birth to some
meaningful laws including anti-stalking (which included cyber stalking) law in
the form of S.354D of the Indian Penal Code. India neither had Protection of
women from sexual harassment at work place Act, which was ‘born’ in 2013. This law
while grouping certain behaviours as ‘penal’, also included conveying of
harassing messages through emails or other communication services as offensive behaviour.
Most notable of the present laws which penalises sending offensive messages
through communication services is obviously the protection of children from
sexual offences Act, 2012. Each time I go through these provisions, I find the
shadow of S.66A. Consider the first category of offensive message that has been
laid down by 66A: “any information that is grossly offensive or has menacing character”,
send by ‘any person’ send by computer resource or communication device. While this has attracted most of the
controversies and has created shock waves for those who oppose S.66A, the second
categorisation is contrarily more focussed. It categorises “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 makes by making use of such computer
resource or a communication device” as offensive communication, liable to be
penalised. I call it ‘more focussed’
because it has mentioned certain human emotions which can be triggered due to
sending of particular messages and which the sender sends with particular malicious
purposes. But still, this categorisation also attracted controversies due to linguistically
twisted presentation of the provision. The third and the last categorisation of
offensive messages create even more ‘shock’: it includes “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”. This is not the repetition of the earlier paragraphs or
categorisation, but it is actually for broadening the scope of 66A to mail or
messages and not just only ‘information’. People who oppose 66A, take up the defence of
its almost open-ended scope which can involve anything and everything as offensive
speech. Since the internet has offered
anonimity or no initial policing by the service providers while generating the message, sects of people
have started to use internet as a platform to express their opinion. One of the
very first oppositions for 66A came up when Aseem Trivedi , the political cartoonist was
nabbed by the crime branch for his politically satirist cartoons depicting
anti-corruption movement in early 2012; soon it followed by more oppositions due
to the arrest of Palghar girls Shaheen Dhada and her friend for their post in Facebook on
Mumbai shutdown on the occasion of the death of Balasaheb Thakre. Needless to say, such arrests were made by the
police on the instigation of political people who took full liberty to (mis)use
66A for curtailing the freedom of speech of common individuals. The latest
being the arrest of a school boy on the alleged post targeting another
political big shot in Uttarpradesh. Unfortunately 66A always found a slippery
way in the hands of police who were ‘instigated’ by some people who wished to
take the law in their hands in literal meaning. Added with it, s.66A being a
provision which proscribes punishment which may extend to three years, also
attracts the issues of cognizance and bailability. S.77B says any offence which
is punishable with three years imprisonment or more, is a cognizable offence
and bailable. It becomes an obvious fact that if and when any one intends to
misuse the law, may use the penal objective of the same with fullest meaning so
that the ‘accused’ gets a life time lesson. This is exactly what happens each
time 66A is used for curtailing free speech especially in cases of opinions
regarding political matters or consumer matters. I say this, because these arrests were also challenged
by Markendeya Katzu, who was a former Supreme Court judge.
But 66A also offers a wonderful safeguard against defamation
and other harassment if it is read properly. Consider Article 19(2) of the
Indian constitution which lays down reasonable restrictions for freedom of
speech. I see 66A in that light
shredding those ambiguous categorisations. it is accepted that 66A lacks clear definitions which is extremely important for any restrictive law. But needless to say, we still do not
have any provision to regulate online bullying, trolling or even harassment to
women by way of insulting posts. S.509 of the Indian Penal Code may fulfil the
gap since it punishes any word, gesture etc to insult the modesty of women. But
again, when applying 509, many women may face the problem of ‘what is modesty’
types of questions by the police itself. I have known many victims who have
been blamed by the police on this very basis. Police still depends upon related laws to book
the offender and many a times the case becomes extremely complicated due to
misunderstanding of the issues. 66A may provide a wonderful solace in such cases.
But still, 66A has been used in many
cases of harassment of women in the internet and it proved fruitful as well.
When I write this blog, I understand that within a few
minutes or a couple of hours, the Supreme court of India may take its landmark
decision on 66A on the grounds thus presented by the defenders and supporters
of 66A. I remember seeing a very
meaningful observation in Twitter by none other than Pavan Duggal who mentioned
that scrapping of 66A would not serve the purpose. I am an ardent fan of 66A
and I would continue to support restrictive laws such as this one(off course
when it is read and used in positive lights) if at all Supreme Court shows lenience towards 66A’s opponents. I really wish that 66A comes back, but not in
its old form. It should be re-born with clear language and purposes. 66A may then mother many other laws which may
be beneficial to not only women and children, but also groups of persons including
racial minority, gender minority etc.
Wish you good luck 66A!
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