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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.
Section 66A is divided into three sub-clauses. The first sub-clause targets any electronic communication that is "grossly offensive" or of a "menacing character". Neither of these terms are defined or even present in the Indian Penal Code, from which the legal ingredients of most offences can be fished out. This problem occurs again in the second sub-clause, which makes any false information which causes "annoyance, inconvenience, danger" punishable. There are many more terms under this sub-clause, which contains a laundry list of terms such as "insult" and "ill will". Even these are not defined. This clearly demonstrates that the law is vague and goes against a cardinal principal in the drafting of criminal statutes: the law should be defined precisely. Moreover, the section lacks coherence and often seems to be a provision in search of an offence. It is no wonder that in most cases it is used as a residuary provision, adding to the heap of sections already contained in an FIR. The section has been used that way in cases of alleged blackmail through emails, dowry harassment, defamatory internet content and even copyright infringement. These predate the recent cases against Aseem Trivedi for posting cartoons online and Jadavpur University professor Ambikesh Mahapatra for parodying Sonar Kella to mock Mamata Banerjee, not to mention the case in Thane, where two girls were arrested for a status message on Facebook that questioned the shutdown in Mumbai after Bal Thackeray's death.
In all these cases, Section 66A is not the only provision being employed. It is used in addition to the existing criminal offences. Most of such offences are in the IPC, a colonial statute that displays the best Victorian sensibilities as it covers offences such as defamation, outraging the modesty of a woman by signs and gestures, obscenity etc. But such offences are well defined in the statute itself and do not suffer from the infirmities of Section 66A. In many ways, Section 66A is not only superfluous but, because of its shoddy drafting, also likely to be used to criminalise speech that was not considered actionable under law even in the 19th century.
These problems are not problems of overzealous prosecution in isolated cases but systemic flaws that stem from crude drafting. Such vague drafting is almost Kafkaesque and at odds with the reasonable restrictions that can be placed on the exercise of free speech.
The writer is a partner in a Delhi-based law firm and visiting faculty at the National Law University, Delhi, firstname.lastname@example.org