Room for misuse in law against ‘offensive’ posts on internet
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In 2005-06, while finalising amendments to the Information Technology Act, the law ministry's legislative department, which is responsible for drafting all legislations and ensuring they would pass the test of constitutionality, gave a lot of thought to whether section 66A, which was being added to the Act, would pass what is called the "Clear and Present Danger" Test.
It is under section 66A that two young women were arrested in Mumbai for a Facebook post and a "like", the original comment having questioned the need to shut down a city on account of Bal Thackeray's funeral.
The "Clear and Present Danger" Test was modelled on a landmark ruling by the US Supreme Court in the Schenck versus United States case of 1917. It was aimed at checking if uttering some words, which normally would not seem dangerous, would be so when seen in light of the existing circumstances. An example: loudly saying you have a bomb in a crowded place might be held dangerous but not so if you uttered these words in a place where there's nobody to hear you.
According to sources in the law ministry, including those associated with the drafting of the controversial section, which makes it an offence to post any content that is "grossly offensive or has menacing character" online, there were many who felt that section 66A could be misused or become a tool for harassment in the hands of internet-illiterate police personnel. But, since the section passed the "Clear and Present Danger" Test, it was cleared for inclusion in the list of amendments and was finally passed by Parliament in December 2008.
"But there was no doubt in our minds that it would take a lot of time for the police personnel to understand when and under what circumstances to use this clause," said a law ministry functionary. "By no stretch of logic can we accept that the Facebook posts of the two young girls is an offence. In fact, action must be initiated against the police officials who cleared their arrests."