Law and practice

Apex court is seized of the IT Act's 66A, but tightening the law may not be sufficient to prevent its misuse

Thanks to a PIL, the Supreme Court has come to grips with the controversial Article 66A of the Information Technology (Amendment) Act of 2008, which has been misused to penalise political dissent. The three clauses of the section are designed to criminalise improper communications online, ranging from menacing messages to spam, but they are phrased in ambiguous terms and can be easily misinterpreted. Problematic terms include "grossly offensive", "annoyance" and "insult", which are open to subjective interpretation. The Supreme Court has said it was waiting to be approached in this matter, indicating that it will suggest a course correction in the Act to deter misuse while retaining its potency against genuine wrongdoing.

Tightening the law alone may be insufficient. Its language can be made more specific to reduce opportunities for wilful misinterpretation, but an exhaustively detailed law may also be too rigid to cover all bases in a rapidly evolving medium. The original IT Act of 2000 had to be amended in 2008 because the Internet had developed new platforms and usages like blogging. And even then, social media was not quite the phenomenon that it is today. A law that narrowly defines punishable behaviour may be unable to anticipate future behaviour, and may be resistant to interpretation by the courts. At the same time, according excessive discretionary powers would invite misuse. A mean must be discovered between these extremes.

Part of the answer may lie in streamlining the working of the law, not only the law itself. The police seem disproportionately eager to act on complaints filed under Article 66A. Kapil Sibal, minister for communications and IT, has sought to rein in their enthusiasm by restricting the right to initiate proceedings under Article 66A to senior officials. This may not serve the purpose, since there is no guarantee that even the highest-level police officials would be independent of their political masters. Since the police appears to be the weakest link, however, perhaps the answer lies in ensuring application of mind in that department. In Maharashtra and West Bengal, the law could be used to intimidate citizens expressing harmless opinions because the police applied it like automata, under political pressure. Perhaps the police should be assured room to think, by penalising political forces that bring them motivated complaints under Article 66A.

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