The Telegraph
Friday , November 30 , 2012
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Vague law that curbs freedom

New Delhi, Nov. 29: A 116-word amendment to the Information Technology Act that can threaten senders of casual or even “just-for-fun” email messages or Facebook posts with three years in jail has come to haunt the Indian government.

Section 66A of the IT Act has, since April this year, hurled a Jadavpur University professor, two Air India employees and two college girls in Maharashtra, among others, into short spells of police custody, kindling debates on freedom of expression.

The public outcry triggered by those detentions has snowballed into a nationwide protest against what some lawyers and analysts tracking the legislative process say was an amendment passed by Parliament in December 2008 with virtually no debate.

“Section 66A restricts free speech for reasons far beyond those allowed by the Indian Constitution,” said Chinmayi Arun, assistant professor at the National Law University in New Delhi. “Ambiguity in its language is a key problem.”

The section applies to any person who uses a computer resource or a communication device to send any information that is “grossly offensive”, or “menacing”, or has the potential to cause “annoyance”, “inconvenience”, or “insult”.

“It gives the complainants and the police too much power without adequate checks or balances. It is ammunition to gag free speech,” Pavan Duggal, a New Delhi-based lawyer who specialises in IT law and cyber crime, told The Telegraph.

Duggal said that Section 66A, passed by Parliament along with “a bunch of amendments relating to cyber terrorism”, was discriminatory against online or “electronic” free speech in relation to the freedom of speech allowed by the Indian constitution in the physical world.

In April this year, Jadavpur University professor Ambikesh Mahapatra spent several hours in police custody after electronically posting a joke about Mamata Banerjee.

Two Air India employees spent 12 days in a police lock-up earlier this year for sharing jokes about political leaders. This month, two young women in Palghar, Maharashtra, were picked up by police for respectively posting and “liking” a Facebook message that questioned the Mumbai shutdown on the day of Bal Thackeray’s funeral.

Article 19 of the Constitution guarantees freedom of expression while imposing restrictions for reasons such as security of the state, public order, decency or morality, among a set of well-defined criteria, Duggal said.

But Section 66A’s vague language such as “annoyance” or “inconvenience” may be used to muzzle virtually any opinion that someone somewhere doesn’t like, said Gautam John, a Bangalore-based lawyer who has launched an online petition against the section.

“It criminalises what was not illegal earlier,” John said.

Analysts tracking the legislative process said it’s unclear how the ambiguous language was introduced into the text of the amendment. But the non-government Centre for Internet and Society (CIS), a Bangalore-based organisation, had expressed concerns about its implications in early 2009.

“We wrote to officials in the (IT) department but they did not even acknowledge our communication,” said Pranesh Prakash, a lawyer and director of policy at the CIS.

The momentum against Section 66A seems to have stirred the government into action. Union IT minister Kapil Sibal today chaired a 40-minute meeting of India’s apex cyber law panel where, a source present at the meeting said, Section 66A was high on the agenda.

Senior IT department officials, secretaries of other government departments, and representatives of the IT industry were among those who attended the meeting of the Cyber Regulation Advisory Committee.

The source said the discussions at the meeting suggested “the senior leadership of the department understands the problem”.

“Section 66A will need to be revised to bring it in line with Article 19(2) of the Constitution,” said John. “This could be done in the current session of Parliament.”

The section needs to be amended, Duggal has written in his blog, so that Indian cyber law is consistent with the principles enshrined in the Constitution and with the “existing realities of social media and digital platforms”.