Section 66 A of Information Technology Act

Indian Constitutional Reference:

Article 19 of the Indian Constitution protects certain rights including freedom of speech and expression with reasonable restrictions.

According to Article 358 of the Indian Constitution, when a proclamation of national emergency is made the six fundamental rights under article 19 are automatically suspended.

But the 44 th Amendment Act of 1958 restricted the scope of Article 358 by restricting its applicability only when emergency is proclaimed on the ground of war or external aggression.

Section 66 A of IT Act states that any person who sends by means of a computer resource or communication device any information that was grossly offensive or has a menacing character could be punished with imprisonment for a maximum term of three years, besides imposition of appropriate fine.

Argument:

Can we really say that Section 66 A can be termed as a reasonable restriction for Article 19? or are we in the state of emergency proclaimed on the ground of war or external aggression?

Firstly, usage of subjective terms like "grossly offensive" and "menacing character" to define such an important article makes it very susceptible for misuse by our administration, politicians, wealthy and police. Also, things which are offensive to a person may be acceptable to other, which makes this further debatable.

Furthurmore, the constitutional validity of the article is being widely discussed and is still pending with the Supreme Court. Government tried to support the act with various explanations like "saying misuse of law isn't strong enough reason to scrap or amend it" or "an advisory has been issued to the Chief Secretaries and DGP's of all States and UTs.The advisory asks State governments not to allow the police to make arrests under Section 66A of the IT Act without prior approval from an officer not below the rank of Inspector General of Police in the metropolitan cities or Deputy Commissioner of Police or Superintendent of Police at the district level". Also the Government tried to justify the legality of the act by comparing it with Section 127 of the UK communication act.

 

Comparing the act with another act in UK doesnt really justify the act itself. Moreover, when the said act in UK was widely criticized by the House of Lords. Our Constitution was framed by taking references from various other constitutions in the world. As outlined by Dr. B.R. Ambedkar in this context, "The only new things if there can be any, in a constitution framed so late in the day are the variations made to remove the faults and to accommodate it to the needs of the country." (Constituent Assembly Debates, Vol VII p (35-38)). In such a case, making an act in lines with an act in UK which was widely criticized by its own House of Lords is clearly a risk to the idea of the formation Indian Constitution itself.

This law is similar to the laws made by the Imperial British Government in India in the Pre-Independence era to curb the nationalist movement. Would the National Leaders, framers of our Constitution or we ourselves would have accepted a similar law if it was passed by the Colonial Government in India before 1947? Six decades after Independence are we going back to those days? During the colonial rule news papers, pamphlets, journals, public meetings are the main routes for the speech and expression, propagation of nationalism by the nationalists. In this era, social media is an additional route which is more powerful than any of the above means. Restricting it through Section 66 A also makes it almost impossible for people to criticize politicians or expose corruption. This is surely against our values of liberty and democracy.

In a way this can even restrict the freedom of press. Are we trying to go to such a state after all these days and struggles? If we continue in these lines we will slowly retreat to our earlier days of colonial policies but by our own people.

Another perspective:

Some argue "Indian National movement is the only movement where the broadly Gramscian theoretical perspective of a war of position was successfully practiced; where state power was not seized through one movement of revolution, but through prolonged popular struggle on political, moral and ideological level; where counter hegemony was built up over the years."
But the social media with full freedom, can try to bring the radical social change in a modern liberal democracy, as described by Gramsci which involved more than anything developing a strong and dynamic culture people capable of establishing the necessary institutions for a subversion of hegemony. For such a state social media can be a means, is this what our Government is trying to avoid?

As a democracy, if these dynamic changes are what the people want then then Government shouldn't try to undermine them, people should be given the choice.

Relief:

Atleast we can take respite from the stand taken by the Supreme Court in the dismissal of a PIL by Advocate M. L. Sharma seeking intervention by the court in directing the Election Commission to curb hate speeches (debatable decision), instills the confidence that we haven't lost this war for our freedom of speech and expression yet.


Disclaimer: This post doesn't criticize anyone, it is just an opinion and facts drawn from various sources.