In this blogpost, Saumya Agarwal, student, Amity Law School, Delhi  writes about why we need an alternative to Section 66A of the IT Act

INTRODUCTION

Much has been written about Section 66A of the IT Act, 2000 already. With the landmark judgment given by the Supreme Court in the Shreya Singhal case last year, most of the citizens wonder whether the internet has become a free domain to express their views and opinions. Is an alternative to Section 66A really needed?

BRIEF OF SHREYA SINGHAL’S CASE

Shreya Singhal is a 21 year old girl who had just returned after completing her astrophysics course in UK’s Bristol University. Being a fifth generation lawyer herself, she knew she could approach the Supreme Court directly. She filed a PIL for striking down the draconian Section 66A based on the arrest of two girls from Mumbai for questioning the shutdown of Mumbai on the death of Shiv Sena chief Bal Thackeray. One girl posted her views as to the need for shutting down Mumbai while the other one simply liked her view.

The Supreme Court held that Section 66A was poorly drafted and vague. The Court held that it is ‘unconstitutional.’ While defining the word “grossly offensive” in the section, ASG said that the interpretation of the section is arbitrary. According to him, “what is offensive for me may not be offensive for you and it is a vague term.”[1] He said in court, “I can give you millions of examples but take one burning issue with respect to 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 main contention argued by the defendant Tushar Mehta was that just because there is a possibility of its “abuse,” the Supreme Court should not “quash” the Section.

He also said 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.” “Considering the reach and impact of the 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 the same time in a nanosecond just with a click of button.”

To this Supreme Court argued that “The information disseminated over the Internet need not be information which ‘incites’ anybody at all. Written words may be sent that may be purely in the realm of ‘discussion’ or ‘advocacy’ of a ‘particular point of view’. Further, the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the Indian Penal Code at all.”

WHAT HAPPENED TO THE CASES WHICH WERE BOOKED UNDER SECTION 66A?

The police said that it cannot be expected from them to go to every person against whom the cases were filed and ask them to withdraw their application. However, it said that the people against whom the cases are filed can approach the court and file for withdrawal of the case in the light of the Shreya Singhal judgment.

NEED FOR AN ALTERNATIVE TO SECTION 66A

As has been argued by ASG Tushar Mehta, internet doesn’t “operate in an institutional form.” There is a need for a new law which is not vaguely drafted and is not misused by the politicians and the police to harass the people. Most of the people use the internet to advocate their views or as a platform for discussion, but there are some miscreants who use it to defame others. There is a need for the people to be booked under the IT laws in case any violation happens. We also have to look at the fact that the law is not over-regulatory and curbs our fundamental right to freedom of speech on the internet. There is a greater need to draft a law under the IT Act to deal with such cases.

POINTS GOVERNMENT SHOULD CONSIDER BEFORE DRAFTING THE NEW SECTION

The new law should not repeat the old laws’ deficiencies; the new law should not duplicate the old law. The old law was misused by the politicians for their own benefits. Care should be taken while drafting the new law. The government should take into consideration the future of the new law along with the security and privacy of the users, which is a crucial point. The new law should be more carefully drafted which should not be struck down.

The government should ensure that people use the internet with responsibility, to post information, to share their views, photos and videos. But there are a few users who use the internet to malign it by sharing morphed photos, videos and other materials which are likely to spread communal violence. So to prevent all this, it is necessary that there should be a proper law.

The government should take reference from other legislations of the world and also not repeat the mistakes present in the old law. The government should consult experts like privacy groups, judges, lawyers, police and other prominent citizens in the relevant arena before drafting the new law. The MPs should debate on the draft before passing the new law in the Parliament.

It should be more participative and should not curb the freedom of speech of the citizens in any way. It should be more citizen friendly and not favoring the government and the politicians. The most important of all is that the law should not be to harass people and must not be misused by the politicians.

CURRENT SITUATION

Presently, after striking down the Section, the complainants are using Section 499 and 500 of the IPC to book people.

Section 499, IPC describes defamation and Section 500, IPC prescribes its punishment.

Section 499, IPC-

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Section 500, IPC-

Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Under Section 66A, police had to interpret whether the material is defamatory or not, on this basis the police could arrest a person. The Section gave the police sweeping powers. The kind of law we need should be where the police books the case, investigates it and reports it to the court and it will be the court’s discretion in deciding the period of sentence. When the court is completely satisfied that the material is defamatory in nature then only will it pass judgment.

Hence in light of the above situation, there is a need that the legislature must come up with an alternative to Section 66A to ensure that a person enjoys his fundamental right to speech and at the same time, understands the responsibilities attached to it.

[1] http://www.firstpost.com/india/victory-for-free-speech-as-sc-strikes-down-section-66a-of-it-act-heres-all-you-need-to-know-2169787.html