Monday, December 10, 2012

Amend Article 66A of IT act 2000 to protect constitution-guaranteed freedom of speech

Article 66A of the IT act 2000 is in the forefront of the news after the recent arrest of two young girls at Palghar, Maharashtra. The girls had protested on their facebook profiles over the unofficial shutdown of Mumbai on the day Bal Thackeray, chief of Shiv Sena was to be cremated. Subsequent to the countrywide outrage over the arrests, a petition was filed in the Supreme Court by Shreya Singhal, an Indian-born student of Cambridge presently on vacation at home, terming Article 66A as unconstitutional since it violates freedom of speech as defined under Article 19 of the constitution & thus praying for the act to be repealed/amended.

Earlier too, Article 66A has been misused by the police in West Bengal, Tamilnadu & Pondicherry at the behest of complaints filed by politicians & their discretionary interpretations by the police .

Of course, one needn’t have to be a politician to file a complaint under Article 66A. Any citizen of India, if he/she feels that any comment made by another individual on-line (e.g. on facebook & other social media sites; or on emails or on comments sections of articles of any on-line media publications etc.) is “offensive & menacing” and one that causes “insult, hurt or injury;” then he/she can cite Article 66A to file a complaint to the police.

It is then left to the interpretation of the police official (earlier it was the OC but now it requires the approval of a senior police official like the DIG) as to what exactly is “offensive.” The official in question has the discretionary power to accept anything & everything as offensive. For example, a harmless cartoon involving the CM of West Bengal & the-then Union minister of railways (also hailing from West Bengal) was interpreted as offensive. This caused a professor of Jadavpur University to be arrested not for making the cartoon (somebody else did it) but for forwarding it to others. The point to be noted is that one can be booked not only for creating the on-line “offensive” material but also for “sharing, distributing or liking (as in facebook) ” the same.

Now this is utterly ridiculous and leaves ample scope for arbitrary use of Article 66A by anybody who has the access to & influence over the police officials. More importantly, this violates te freedom of speech & expression of an individual either to criticise or merely to pass an opinion on another individual.

Article 66A needs to be struck down and in its place a new law, if deemed necessary, should be created . This law should clearly cite examples as to what is meant by “offensive” or “ insult” or “ injury, ” so that the supervising police official has less discretion for wide, subjective interpretation. The cyber-crime cell, which is located only in the metro cities should be created in ever district headquarter and only trained officials from this cell should be involved in the assessment & approval of the complaints. It is to be noted that just by raising the approval authority to a DIG level (as has been done recently by the concerned cabinet committee on IT matters) doesn’t remove the power of discretion or subjective interpretation since the same authority could possibly be as untrained & incompetent as the OC to deal with such matters.

It’s somewhat heartening to note that the Supreme Court has taken cognizance of the petition filed by Shreya Singhal and as with all goofed-up decisions of the executive & the legislature; a citizen expects that the highest court of the land will come to his/her rescue by removing/rectifying the draconian measures embedded in Article 66A.

Author's note: A Bengali transcreation of the article is available in Ei Samay paper here.

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