Explained: Article 66A

A batch of petitions have alleged that the section tramples upon the Fundamental Right to freedom of speech and expression, and asked that it be declared unconstitutional.

Written by Utkarsh Anand | New Delhi | Updated: March 24, 2015 11:31 am
66 The vagueness about what is “offensive”. The word has a very wide connotation, and is open to distinctive, varied interpretations.

The Supreme Court is examining the constitutional validity of Section 66A of the amended Indian Information Technology Act, 2000. A batch of petitions have alleged that the section tramples upon the Fundamental Right to freedom of speech and expression, and asked that it be declared unconstitutional. On Tuesday, the court gave the government a week to clarify its stand on Section 66A. UTKARSH ANAND explains.

What is Section 66A of the IT Act?

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.

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.

How frequently has 66A been used?

Most cases of arrest were reported in 2012. Jadavpur University professor Ambikesh Mahapatra was arrested for forwarding caricatures on Trinamool Congress chief Mamata Banerjee on Facebook. Activist Aseem Trivedi was arrested for drawing cartoons lampooning Parliament and the Constitution to depict their ineffectiveness. Air India employee Mayank Sharma and K V Rao from Mumbai were arrested for allegedly posting offensive comments against politicians on their Facebook group.

Businessman Ravi Srinivasan was booked by Puducherry police for an allegedly offensive tweet against the son of a former cabinet minister.

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.

What has the court said so far?

The Supreme Court, in the preliminary hearing, accepted the contention that the provision was “very widely drafted”, and gave arbitrary powers to police officers to make arrests. Nudged by the court, the central government issued a set of guidelines in January 2013, intended to prevent misuse of the provision. These guidelines mandated that only senior police personnel could order arrests under this section. The petitioners have, however, maintained that the guidelines could not redeem a provision that was otherwise unconstitutional.

What happened on Tuesday?

The court gave an ultimatum to the Centre to either clarify its stand on the provisions that envisaged arrest for contentious posts on social media, or be ready to have such laws stayed. It warned that it would make the provision inoperative if the government failed to file, within a week, a comprehensive affidavit, and explain its final stand on either amending or deleting Section 66A.