SC strikes down Section 66A of IT Act. All you need to know about the controversial law

by Ayeshea Perera  Mar 24, 2015 10:40 IST


The Supreme Court on Tuesday struck down Section 66A of the Information & Technology Act today after hearing a clutch of petitions challenging it.

The case has been closely followed, mostly for its implications on how Indians can use the Internet and social media, and because of its implications on the freedom of speech.

Here is all you need to know about section 66A, the cases against it, and what the controversies surrounding it are:

What does section 66A of the IT act actually say?

“Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three years and with fine.”


The issues with the wording of the act

One of the main problems with the act is the fact that it is framed in vague and sweeping language, which allows law enforcement authorities to interpret it in a subjective manner. What, for instance is information that is ‘grossly offensive’ and has menacing character’? If someone were pro-life, for instance, they may find an email forward endorsing abortion ‘grossly offensive’. Similarly, if someone were a religious purist who believed God created the world in seven days, they may find a status update on evolution to be ‘false information’. By making the act so open ended and subjective, the government is trying to save itself the trouble of having to define each and every cyber crime, but what they have overlooked or ignored is that in its present form, the act also easily lends itself to prosecuting people who dare to have and express a controversial or different opinion that may not necessarily be dangerous.

This issue was also brought up by the Supreme Court while it was hearing the petitions against the act.

Dealing with the word “grossly offensive”, the bench referred to the judgement cited by the ASG and said, “what is grossly offensive to you, may not be grossly offensive to me and it is a vague term.” “Highly trained judicial minds (judges of the UK courts) came to different conclusions by using the same test applied to judge as to what is grossly offensive and what is offensive,” the court added.

In fact one of the judges on the case, Justice Nariman, even gave an example to the court of how the vague definition of ‘grossly offensive’ could be dangerously twisted. According to Times of India report, he said in court, “”I can give you millions of examples but take one burning issue is of conversion. If I post something in support of conversion and some people, not agreeable to my view, filed a complaint against me then what will happen to me?”

The petitions against the act

Some of the petitions seek setting aside of section 66A of the Information Technology Act which empowers police to arrest a person for allegedly posting offensive materials on social networking sites.

The first PIL on the issue was filed in 2012 by law student Shreya Singhal, who sought amendment in Section 66A of the Act, after two girls — Shaheen Dhada and Rinu Shrinivasan — were arrested in Palghar in Thane district as one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray‘s death and the other ‘liked’ it.

Most activists and policy experts point out that the Section 66A is loosely worded and puts too much powers in the hands of the police.

Recent controversies surrounding the act

Much of the outrage surrounding section 66A has been because of arbitrary arrests of people posting content on social media against various politicians, with police using the vague language of the act to their advantage.

As pointed out by Firstpost editor Sandip Roy, “There’s nothing in Section 66A that’s specific to politicians, but politicians of all stripes have seized on it as the handy bully club to squelch all kinds of dissent from cartoons to abuse. There’s that old saying jiski laathi uski bhains(whoever owns the big stick, owns the buffalo). For our politicians, Section 66A is the big stick.”

Apart from the two girls who were arrested in Maharashtra mentioned earlier, some other controversial arrests around the act are:

* A tourism officer in Varanasi was arrested for uploading “objectionable” pictures ofMulayam Singh YadavAkhilesh Yadav and Azam Khan on Facebook.
* Ambikesh Mahapatra, a Jadavpur University professor, was arrested in Kolkata for forwarding a cartoon about Mamata Banerjee.
* In Goa last year, police booked a young shipping professional for a Facebook post which said that the Prime Minister-elect Narendra Modi would start a holocaust in India. Devu Chodankar had written on a Facebook forum on Goa+, a popular forum with over 47,000 members, if elected to power, Modi would unleash a ‘holocaust’. He deleted his post subsequently. Chodankar later apologised for his choice of words but stood by the sum of his argument, calling it his crusade against the “tyranny of fascists”.
* Most recently a class 11 student was arrested for making a Facebook post about UP minister Azam Khan. “A Class XII student made comments against me on FB. Law is enforced with strictness and he has been arrested within 24 hours,” Khan told the media.
* A man was arrested in Puducherry for tweeting that Karti Chidambaram, son of then union minister P Chidambaram was ‘corrupt’.

The government’s defence of 66A

The main defence of the government has been that the act cannot be “quashed” merely because of the possibility of its “abuse”.

According to a report in Times of India, additional solicitor general Tushar Mehta told the court that “there was a need for a mechanism to put checks and balances on this medium”, because the Internet doesn’t “operate in an institutional form.”

He told the court that, “Considering the reach and impact of medium, leeway needs to be given to legislature to frame rules. On the Internet every individual is a director, producer and broadcaster and a person can send offensive material to millions of people at a same time in nanosecond just with a click of button.”

Mehta also said that the vague wording of Section 66A, which said ‘grossly inoffensive’ content could land someone in prison for three year, was not a good enough reason to get rid of the section.

In the earlier hearings, Mehta had given examples of how the Ministry of Defence and External Affairs, received emails that were designed to hack and steal information from the ministries, in an effort to convince the court that Section 66A was needed to prevent such activities.

What the court has said so far

Apart from raising objections to who could determine what constituted ‘grossly offensive content’, the court has also not been impressed with the government argument that the section was needed to protect government data from hackers, and had pointed out that this eventuality was already dealt with viruses and hacking for which Section 65 of the IT Act was relevant.

The apex court had also on 16 May, 2013, come out with an advisory that a person, accused of posting objectionable comments on social networking sites, cannot be arrested without police getting permission from senior officers like IG or DCP.

The direction had come in the wake of numerous complaints of harassment and arrests, sparking public outrage.

It had, however, refused to pass an interim order for a blanket ban on the arrest of such persons across the country.