Room for misuse in law against ‘offensive’ posts on internet

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."

The ministry functionary said that the police would have to be sensitised to ensure that while enforcing this law, the Right to Freedom of Express and Speech guaranteed to citizens under the Constitution is not curbed.

Telecom and IT Minister Kapil Sibal has also said that the police action was questionable and there is a need to educate law-enforcement agencies about the various provisions of the IT Act to prevent misuse.

Senior advocate Atul Nanda feels the wording in the section has an element of ambiguity about the expression "offensive". "Though perceptibly intended to protect against instances of threat mails or cyber-stalking, it is too broadly articulated to serve as an effective tool to combat the said offence and therefore is a double-edged weapon that can be misused to harass innocent persons as well," Nanda said.

Incidentally, the Information Technology (Amendment) Bill, 2006, which added section 66A, was passed without debate in the Lok Sabha on December 22 and in the Rajya Sabha the next day. On both days, Parliament functioning was disrupted over then minority affairs minister A R Antulay's demand that the shooting of Mumbai ATS chief Hemant Karkare in the 26/11 Mumbai attacks should be probed.

Since October 2009, when the amendments were notified by the Ministry of Information Technology, cyber law experts and activists have been urging the UPA government to have a relook.

"Our point is that this law is akin to punishing three people guilty of offences of murder, theft and nuisance with the same punishment. This section does not pay heed to the fact that even a valid and true criticism of the actions of an individual, when brought to his notice, can amount to annoyance," notes Pranesh Prakash of the Centre for Internet and Society, Bangalore.

Early this year, a PIL was filed in the Madras High Court challenging the legality and constitutionality of section 66A. This followed the arrest of an India Against Corruption activist on the charge of posting an offensive message on social media against Union Finance Minister P Chidambaram's son Karti. The activist was arrested by the police on a complaint lodged by the minister's son.

"It is a cognisable and bailable offence. But the police should have considered the gravity of the so-called crime. What was wrong in what the girl said? It is a clear case of abuse of power by the police and suitable action must be taken," said noted criminal lawyer K T S Tulsi.

Activists also say that under the Code of Criminal Procedure, anybody who is charged with an offence that could lead to a prison term of less than seven years has to be first served a notice by the police to appear before the investigating officer or appropriate court on a fixed date. If he responds and presents himself, he cannot be arrested, they say.

"However, the maximum punishment for violating section 66A is three years. The police should have given a notice to the two girls and not straightaway arrested them. They jumped the gun," said a senior lawyer.

That police personnel have little knowledge of the newer laws, especially those dealing with technology-based crimes, became evident two years ago when the Kerala High Court set aside an FIR in which a 20-year-old had been booked under section 66A. The court took a strong view of the fact that the amended law under which he had been booked was still to be notified and hence was not in effect till then.

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