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.

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  1. I
    inChaos
    Mar 25, 2015 at 10:56 pm
    What if someone(a common person) posts an offensive remark to another(common person)? Would it be punishable? Or would it will also come under freedom of speech. If someone abuses someone's family member socially, will the offended have any right to file a complaint about that? I seriously dont understand this side, everyone is talking about defaming politicians and their misuse of Section 66A. Can anyone provide an answer to for above?
    Reply
    1. V
      Vinay Kumar
      Apr 14, 2015 at 12:34 pm
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      Reply
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        narendra
        Oct 1, 2015 at 7:50 pm
        please do it fast im facing the same problem
        Reply
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          Parantap Bhatt
          Mar 25, 2015 at 12:15 pm
          One step a day. Great Verdict.
          Reply
          1. R
            Raman Venmarathoor
            Mar 6, 2015 at 4:44 am
            2 thumbdowns... No wonder we get crooks, thieves, rapists, killers, kidnappers as our leaders....
            Reply
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              shagufta ahmed
              Mar 30, 2015 at 8:06 pm
              according to me its good to eradicated the SECTION 66 A.at least i don't need to be scared to behind the bars by simply liking the post or commenting on it.but the misuse of this freedom should be prohibited.
              Reply
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                archfiend
                Mar 25, 2015 at 11:46 pm
                Hey Inchaos.....if someone will come to you and abuse u on ur face....will u go to a police station to file charge against him.....no ...u will either ignore him or u fight with him...but u wont file FIR....same goes for online abusing
                Reply
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                  sumit
                  Mar 27, 2015 at 10:00 pm
                  Great work done by SC by quashing section 66a oi it act. more on this at
                  Reply
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                    Tom Schneider
                    Feb 26, 2015 at 10:41 pm
                    Amazing how the simple freedom to speak/express is under constant attack everywhere it has supposed to have been established.
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                      RAJU
                      Dec 7, 2014 at 5:31 am
                      throw away such useless absurd laws.Also biased absurd votebank laws like Sc/ST Act needs to be thrown away as these are almost always misused.Either amend them so that people misusing them should be similarly punished or do away with these useless alws.
                      Reply
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                        Anand
                        Dec 18, 2014 at 8:26 am
                        Totally agree. Now, If i upvote @jdavidrajkumar:disqus will I be arrested? I mean someone in some part of the country might find his post offensive. I find it intelligent and well written. I hope the police dont come knocking on my door tonight with handcuffs
                        Reply
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                          Idikkula Nair
                          Dec 18, 2014 at 5:00 am
                          You are under the impression that the Supreme Court is requesting the Government to amend the law. No. Supreme court will make it unconsutional if the Government does not offer a reply. That section will not operate from that second.
                          Reply
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                            Atul Gurtu
                            Dec 6, 2014 at 5:19 am
                            This Section should simply be done away with! Howsoever much one may define what "offensive" is, the powers that be will more often than not find some loop and slam innocents just to show who is boss. Our law enforcement agencies have lost all spine to stand up to the political bullies. In any case, internet trolls ociated or affiliated with parties get away with anything, so why not give the ordinary citizen to have her say too?
                            Reply
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                              ah
                              Dec 6, 2014 at 3:35 am
                              You can be hanged for TEXT message ...... but you can call who are with you Raamzaade and others as Haramzaade live on camera with impunity ................. and when if it gets HOT, I APOLOGIZE mode ............... BHAARAT MAATA ki .......... Jai
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                                ah
                                Dec 18, 2014 at 2:53 am
                                as per freedom of speech you can call others Haramzaade, or you can ask others to go to stan, or you can say Nathuraam Godse is a HERO .......... but other than that if you say anything anywhere is Criminal .......... BHaarat Maata ki ........ Jai
                                Reply
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                                  Santano Fernandes
                                  Dec 6, 2014 at 6:35 pm
                                  Section 66A is needed and PM modi should not listen to the SC as 66A is very important to take care of rowdies and people who are posting on social media and spoiling names so if SC makes a move for staying or making the provision inoperative then the Govt should disqualify the Bench with whatever powers in the parliament the Government has even if the PM modi and cabinet has to ask the President to disqualify the bench and appoint a new bench.
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                                    Neelesh Viswanathan
                                    Dec 18, 2014 at 2:56 am
                                    This is a ridiculous piece of legislation. You want to curb freedom of expression, merely because it is likely to offend someone. We express views and often the wrongdoer has to feel offended. We need to offend the wrongdoer, expecting that our views may shake his conscience and he may desist from causing further harm. Would we have discontinued with practices like Sati and untouchability, if no one had raised their voices against these practices, merely to avoid offending the persons supporting such practices? Freedom of expression should not be curbed and the offended person can react by exercising his freedom to express.
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                                      J David
                                      Dec 8, 2014 at 9:01 am
                                      If individual opinion on a common forum is to be treated as offensive and be punished, what punishment were meted out to those political figures who stronlgy objected to the judge's verdict published against inappropriate wealth case of jayalalitha, and had nerves upto post the posters all around the state condemning the judge as well as threatening the state of karnataka? Is it not blatant violation of fundamental rights as well as challenging the justice and the law of the country. Is the law choose to close blind eyes to the powerful one and open up only against the powerless.
                                      Reply
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                                        Raman
                                        Dec 18, 2014 at 2:26 am
                                        You are absolutely right. But I got offended with your post. I say, you are trying to spread anarchy by instigating the PM to go against top court, you are insulting the consution. Let me file a complaint against you under section 66A. You rowdy element.
                                        Reply
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                                          Sriram Vangal
                                          Dec 8, 2014 at 5:16 am
                                          What we need is checks and balances to prevent abuse, not abrogation. That way, w IPC has to be abrogated as every section has been misused.
                                          Reply
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                                            Sakshi Chopra
                                            Dec 6, 2014 at 6:44 am
                                            breaking english news :vishwagujarat/en/
                                            Reply
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