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The debate about Section 66A of the Information Technology Act, 2000, is growing heated. As more cases of its abuse surface, even Communications and IT Minister Kapil Sibal has begun to mull changes to the act. The key question to be probed is whether individual actions booked under the provision are isolated instances of abuse or the section itself flawed. For that, we need to first explore how Section 66A came into being. What were the intentions of the legislature when it passed a provision that has come in for such sharp rebuke by civil libertarians?
After the IT Act was first passed in 2000, there were regular reports of cybercrimes and the lax enforcement that surrounded them. This was in no way helped by frequent media reports that sensationalised criminal actions online and warned of an impending flood of pornographic MMSes. This concern was reflected in a report by experts which considered amending the act to introduce several new offences. However, Section 66A was yet to make an appearance. When the first amendment bill was prepared in 2006, the provision appeared all of a sudden, without any explanation or a legislative note to explain its presence. Even the parliamentary committee that examined the draft bill was silent on the language of the section, only recommending that offences under the amendment be made cognizable, though bailable. The effect of this is felt in individual cases today, when the police can take cognizance of an offence and ask for custody but the alleged offender still has the right to seek bail on arrest.
These changes were finally sanctioned and Section 66A came into force when the amendment bill was passed, along with seven other bills, in seven minutes on December 23, 2008 — the last day of the winter session of the 14th Lok Sabha. This exercise in legislative efficiency is shocking, given that the language of Section 66A is completely at odds with the constitutional guarantees to freedom of speech and expression. Even a cursory look would have warned our legislators about the effects that are being felt today, as people are prosecuted for Facebook statuses and tweets.
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