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Topic 6 - Article 66A

Introduction


Section 66A defines the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction can fetch a maximum of three years in jail and a fine.

The Supreme Court saved the day for Indian democracy when it struck down the appalling Section 66A of the Information Technology Act last week.
The apex court was sagacious, but the real heroes were those young Indians like Shreya Singhal who petitioned the Supreme Court, and Faisal Farooqui of Mouthshut.com, who campaigned against the law.

What is the problem with that?

The vagueness about what is “offensive”. The word has a very wide connotation, and is open to distinctive, varied interpretations. It is subjective, and what may be innocuous for one person, may lead to a complaint from someone else and, consequently, an arrest under Section 66A if the police prima facie accepts the latter person’s view.

How did the controversy begin?

The first petition came up in the court following the arrest of two girls in Maharashtra by Thane Police in November 2012 over a Facebook post. The girls had made comments on the shutdown of Mumbai for the funeral of Shiv Sena chief Bal Thackeray. The arrests triggered outrage from all quarters over the manner in which the cyber law was used.

What are the grounds for the challenge?

While the objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media, Section 66A comes with extremely wide parameters, which allow whimsical interpretations by law enforcement agencies. Most of the terms used in the section have not been specifically defined under the Act. The petitions have argued that it is a potential tool to gag legitimate free speech online, and to curtail freedom of speech and expression guaranteed under the Constitution, going far beyond the ambit of “reasonable restrictions” on that freedom.

Facebook with a veil

Ayear ago, India had one million Facebook users. In the first six months of 2014, Facebook restricted access to nearly 5,000 pieces of information, the highest anywhere in the world, in response to requests from the government of India. The grounds were usually hate content or criticism of a religion. The figure went up to 5,832 pieces of content on Facebook in the last six months of 2014.



Far too often we are deeply critical of our Supreme Court and its decisions. Indeed, the transformation that Professor Upendra Baxi referred to in the backdrop of the movement in the 1980s towards public interest litigation, when he famously remarked that the Supreme Court of India had at long last become the Supreme Court for Indians, was tragically transient. But, in quashing Section 66A, in Shreya Singhal, the Supreme Court has not only given a fresh lease of life to free speech in India, but has also performed its role as a constitutional court for Indians with considerable élan.

By quashing Section 66A of the IT Act as unconstitutional, the Supreme Court judgment shows us that with the right kind of conviction, it is possible to uncover the importance of free speech as a value unto itself within our larger constitutional scheme. It must allow us to believe that we can now challenge the noxious culture of censorship that pervades the Indian state

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