We agree that the section 66A of the Information Technology Act is highly problematic. The government initially took the position that it was the misuse of the law rather than the law itself that was of concern. After the highly publicized Palghar arrests in 2012, the Department of Electronics and Technology, Government of India issued an advisory on January 9, 2013 to all State governments and Union territories, asking them not to arrest any persons under Section 66A without the prior approval from a seniorfficer.
However, despite the government advisory, Jaya Vindhyala, from People’s Union for Civil Liberties, was arrested in May 2013 in Andhra Pradesh for posts critical of legislator Amanchi Krishna Mohan and Governor K. Rosaiah on her personal Facebook account. Kanwal Bharti a Uttar Pradesh based scholar was arrested in August 2013 for his comments on Facebook, blaming the Uttar Pradesh government for bias against Durga Shakti Nagpal, a civil servant who was suspended controversially for allegedly demolishing an illegal mosque. More recently, the application of Section 66A demonstrates a worrying intolerance for dissent. In the past month alone, Section 66A was invoked to arrest atleast 6 people (an engineer in Goa and five students in Bangalore including one activist of the Aam Aadmi Party) for content which was “Anti-Modi”.
The ongoing trend of unreasonable arrests under section 66A clearly demonstrates that clarifications and advisories are insufficient. In addition, leaving the discretion with regards to when Section 66A should be applied to the police, an arm of the executive, is inconsistent with basic standards required under Article 19 of the International Covenant on Civil and Political Rights. The UN’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression opined that “legislation restricting the right to freedom of expression must be applied by a body that is independent of any political, commercial or other unwarranted influences in a manner which is neither arbitrary nor discriminatory, and with adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application.” It is therefore clear that the law is untenable in its present form.
Section 66A contain a number of deficiencies which render it unworkable and unconstitutional. These include the following:
- A number of operative terms (“grossly offensive” or “menacing character” or causing “annoyance or inconvenience”) in the section are incurably vague. The Thirty-first Report of the Committee on Subordinate Legislation draws attention in explicit terms to the absence of any definitions of these terms and to the mounting instances of the section’s consequent arbitrary application and misuse.
- The standards for merely inconveniencing another or causing offence or annoyance are both subjective and considerably lower than those ordinarily required in order to invite criminal sanction. As a result, section 66A discriminates against content online without clear justification in a manner inconsistent with Article 14 and is disproportionate and therefore unreasonable in its restriction of the Article 19(1)(a) right (even assuming that one of the pigeonholes in 19(2) can be applied to cover such imprecise terminology).
- The terminology used in section 66A does not afford any clarity as to which content specifically is prohibited and which is permissible. Given that it creates a criminal offense whose violation can mean three years’ imprisonment, by design, section 66A would have an unjustifiable chilling effect on speech.
- The use of the term “sending” rather than “publishing” extends the scope of the offence. Private sending of otherwise legal content on the Internet is criminalized, and as a result the same act of sending through media other than the Internet would be entirely legal.
The Supreme Court is seized of the matter of the section’s constitutionality in Shreya Singhal v. Union of India, where a number of the above arguments have been presented by the petitioner. In addition, it is important to note that Section 66A is not necessary in order to address problematic content. The Indian Penal Code, 1860 already covers “criminal intimidation” under Section 503, “insult” under section 504 and “enmity, hatred and ill-will” under section 153A(1)(a).
For the foregoing reasons, we would propose that Section 66A be repealed in its entirety.