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Section 66 (A) of IT Act: Recent Controversies


 

Section 66 (A) of IT Act has been termed as “draconian” and “violating the fundamental right of freedom of expression” by various civil society activists and critics. Some incidents of arbitrary arrests under this Section in the recent past for posting alleged offensive messages on social media has resulted in huge public outrage against this Section of the IT Act. Voicing concern over recent incidents of people being arrested for posting alleged offensive messages on websites, the Supreme Court has agreed to hear a PIL seeking amendment to the Information Technology Act.

The recent controversy

The Section 66 (A) of IT Act gathered the public attention and became an issue of controversy when two young girls were arrested in Mumbai.  One of these girl was arrested  for questioning on Facebook the shutdown in Mumbai after leader Bal Thackeray's death, which was 'liked' and shared by the other girl, who was also arrested. The police invoked section 66A of the Information Technology (IT) Act against these young women.

Use of authority against a person for expressing an opinion on a restricted-access social networking site is arbitrary in nature and gross abuse of authority. The girl was not slandering anybody, nor was she promoting hatred towards any community. She was merely expressing the view that there was no need for Mumbai to be shut down because a leader had died. A section of society (the Shiv Sainik in particular) may not agree with this view, but there certainly was no criminality involved in it. What is even more bizarre is that another girl was arrested merely for indicating that she agreed with her friend.

The Supreme Court in various cases regarding the freedom of speech has held that fundamental right to freedom of expression protects not merely ideas that are accepted but also those that offend shock or disturb the State or any sector of the population.

What is Section 66 (A) of IT Act?

Section 66 (A), which is a bailable offence and provides for a jail term of up to three years, makes it an offence to send, by means of a computer resource or communication device, any information which is grossly offensive, menacing, causes annoyance or hatred.

66 A is related to Punishment for sending offensive messages through communication service, etc. Any person who sends, by means of a computer resource or a communication device,-

  • any information that is grossly offensive or has menacing character; or
  • 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,
  • 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 punishable with imprisonment for a term which may extend to three years and with fine.

Explanation: For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

Core Issue

The phraseology of Section 66A of the IT Act, 2000 is so wide and vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse and hence falls foul of Article 14, 19 (1)(a) and Article 21 of the ConstitutionCurrently, a police station in-charge or an inspector can register a case under the said provision.

Other cases involving misuse of Section 66 (A) of IT Act:

  1. April 2012 incident, when a professor of chemistry from Jadavpur University in West Bengal, Ambikesh Mahapatra, was arrested for posting a cartoon concerning a political figure on social networking sites.
  2. Arrest of businessman Ravi Srinivasan in October 2012 by the Puducherry Police for having made a allegation on twitter against a politician from Tamil Nadu
  3. Arrest of two Air India employees, V Jaganatharao and Mayank Sharma, by the Mumbai Police under the   for posting content of Facebook and Orkut against a trade union leader and some politicians
  4. Assem Trivedi, the famous cartoonist arrested misusing Section 66 (A) of IT act along with the sedition charges.

New guidelines for Section 66 (A) of IT Act:

The government has issued fresh guidelines in the backdrop of Public outrage against the Section 66 (A) of IT Act. The following are the guidelines:

  1. A police officer no less than the rank of DCP can sanction prosecution.
  2. In metropolitan cities, such an approval would have to be given by officers at the level of Inspector General of Police (IGP).
  3. Only officers of these ranks will be allowed to permit registration of a case for offences under the Information Technology (IT) Act relating to spreading hatred through electronic messages in a bid to prevent the misuse of the legislation.
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