Apar Gupta
The recent arrest of a industrialist for an alleged defamatory statement made against Karthi Chidambram demonstrates the ease with which arrests can be made following police complaints for online speech. I stress that the result is quite different when such speech is made in print or even on television due to specific provisions which exist under the Information Technology Act, 2000 and apply only to online speech.
These provisions are more stringent than the ones which exist under general penal provisions as well as laws specifically apply to other mediums.
Through this blog post I will analyse Section 66A of the Information Technology Act, 2000 under which the arrest in Mr. Chidambram’s case has been made.
Section 66A of the Information Technology Act
Section 66A is one such provision which has frequently been used by the State as well as the vast class of offended persons who resort to it when remarks are made against them. The problem with Section 66A is that it is so broadly framed that the remarks do not even need to be libelous for it to be attracted. It reads as follows:
66A. Punishment for sending offensive messages through communication service, etc..- Any person who sends, by means of a computer resource or a communication device,-(a) any information that is grossly offensive or has menacing character; or(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,© any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to tthree years and with fine.Explanation: For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.
Previous use of Section 66A
Section 66A has had a tremendous effect on curbing the fundamental right to freedom of speech and expression. This is most evident in its application to dissent in India especially at the behest of state authorities. Recently some instances have come to light where Section 66A has been applied liberally. Some recent incidents where Section 66A has been applied include:
a) Professor in Kolkata
Jadavpur University professor Ambikesh Mohapatra, was arrested in April, 2011 for posting a cartoon on West Bengal chief minister Mamata Banerjee on the internet. The spoof parodying Satyajit Ray’s detective flick, Sonar Kella (The Golden Fortress).The spoof has lines from the film, in which a boy called Mukul is duped by two criminals into believing that they caused a “wicked man” — who is actually a good person — to “vanish”. In the spoof, the “wicked man” who has “vanished” is former railway minister Dinesh Trivedi, forced out of office by Banerjee in March.
Based on this, Ambikesh Mohapatra was charged under under u/s 66A of the Information Technology Act, 2000; under Section 500 (defamation); 509 (insulting the modesty of a woman through word, gesture or act) and u/s114 (presence of abettor at the time of commission of offence
b) Aseem Trivedi and Cartoons Against Corruption
Aseem Trivedi was arrested in September, 2012 following a complaint filed against the cartoons authored by him which depicted national symbols in cartoons questioning corruption. Though the specific cartoon in the police complaint on which the arrest was made are not specified, his cartoons can still be accessed on his facebook page.
Based on this Aseem was charged under of section 66A of the Information Technology Act, 2000; 124A of the Indian Penal Code, 1860 (sedition); under Prevention of Insults of National Honour Act, 1971.
c) Heena Bakshi post on Chandigrah Traffic Police Webpage
After Heena Bakshi’s car was stolen due to alleged harassment she wrote a post on the facebook page of the Chandigarh Traffic Police. The posted contained expletives, though they were not directed on the police directly. The post is extracted below:
You people kill us with your ‘nakaas’ n check points. Harassing us if we are just driving around at night. But you have no fucking clue when somebody steals that car from under your eyes. The police started questioning me. If I was making this whole fuck up or if someone actually stole it (sic).
Heena Bakshi was booked under Section 66A and Section 67 of the Information Technology Act, 2000.
Problems with 66A
Offences under Sec. 66A are broad
The freedom of speech and expression is a fundamental right contained under Article 19(1)(a) which is subject to the “reasonable restrictions” contained within Article 19(2). Any restriction through law, which does not fall within the grounds for restricting speech as enumerated within Article 19(2), may be struck down as unconstitutional.
Towards this, Sec. 66A of the Information Technology Act, 2000 contains broad phrases which will not fall within the reasonable restrictions as contained under Article 19(2). The phrases include under, Sec. 66A(1) “grossly offensive” and “menacing character”; Sec. 66A(2) “annoyance, inconvenience..”; and Sec. 66A(3), “purpose of causing annoyance or inconvenience”.
These offences are broadly worded and do not contain any further definition by way of any proviso or explanation. In such case, linking them to the limitations under Article 19(2) becomes problematic as it states that, speech can be limited when, “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, Public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”
Offences under Sec. 66A are novel and do not contain any limitations
The phrases contained under Sec.66A which have been highlighted are novel and do not find definition through the Information Technology Act, 2000. Further, the phrases do not have analogous provisions existing under other criminal laws or have been developed judicially. They in themselves are a wholly novel set of offences which have been broadly prescribed under the Information Technology Act, 2000.
Due to the absence of any definitions of “grossly offensive” or “menacing character”, the offences under it are without any limitation. The absence of limitations itself is against Article 19(1)(a)/21 and as per the general rule that criminal statutes should be defined certainly and strictly construed. In as much due to the vague phrasing they are ripe for arbitrary application and can be struck down as unconstitutional as being vague.
Ingredients of offence under Sec. 66A are not specified
It is pertinent to mention that Sec. 66A does not contain one offence, but contains any possible offence which may be applied to any speech or content uploaded online. In as much Sec. 66A lacks any coherence and structure as to the commission of a single offence. Due to this lack of clarity it does not contain any definitive ingredients of an offence which are specified in its clauses.
This is most noticeable in Sec. 66A(2), which contains a list of distinct grounds under which the section can be attracted. It is pertinent to mention that most of the grounds are not even specified for instance, “annoyance” or “inconvenience” does not contain any ingredients. Moreover, even for grounds for which analogous criminal offences may exist, there is no reference made to such distinct sections. For instance, it states “criminal intimidation” but does not make reference to Sec. 503 of the Indian Penal Code, 1860 which contains the offence of criminal intimidation.
Offence under Sec. 66A results in duplication
Not only are the offences under 66A not defined and broadly worded but even when the best construction is placed on them they result in a duplication of offences which are contained under existing penal laws which are adequate to check the commission of crimes and also contain legislative and judicially defined limitations. These limitations are in the sense of the ingredients which must be satisfied for the conviction as well as the safeguards and exceptions which can be pleaded.
For instance, the first case of the Professor in Kolkata where he has been booked under u/s 66A of the Information Technology Act, 2000; under Section 500 (defamation); 509 (insulting the modesty of a woman through word, gesture or act). The ingredients for the offence of defamation as well as insulting the modesty of a woman are clearly contained under the Indian Penal Code. Also, Section 500 of the Indian Penal Code which contains the offence of defamation clearly contains exceptions under which an act of parody would clearly qualify. Sec. 66A due to its vague and broad phrasing and the absence of any ingredients and exceptions results in a more difficult burden which is placed on the accused.
It may also be highlighted that provisions under the Indian Penal Code, 1860 are not limited to acts which done offline or not on an electronic network. Court have repeatedly and purposively interceded the provisions to apply with the advance in technology. Hence, it is evident that Sec. 66A results in duplication of existing penal provisions without any concomitant purpose and only makes the burden on the accused harsher.
Offence under Sec. 66A is cognizable
Another anomalous position is presented as the punishment which is prescribed under Sec. 66A is a term of imprisonment for 3 years. This makes it cognizable and non-bailable. Hence, even though the other provisions of penal law may contain a lesser punishment and hence may be non-cognizable and bailable, in which the accussed will have more liberty, with the application of 66A the accussed may fear arrest and the police seeking their custody.
For instance, the punishment prescribed under Sec. 500 of the IPC which contains the offence of defamation is only for a period of two years. Hence it is non-cognizable and bailable. In such cases when a FIR is registered under it the police does not seek custody. However if the police also applies Sec. 66A to the same FIR then it can arrest the accused. This has happened in the case of the Professor in Kolkatta. Another instance is the case of Mangal Deswal, an Animal welfare officer who has been booked both under Sec. 500 of the IPC and 66A of the Information Technology Act.
Edit : An offence under Sec. 66A is bailable. I had missed this earlier as I failed to notice Sec. 77B of the Information Technology Act which states that, notwithstanding the law contained under the Code of Criminal Procedure, 1973, the offense punishable with imprisonment of three years and above shall be cognizable and the offense punishable with imprisonment of three years shall be bailable.
Offence under Sec. 66A increases jail terms for existing offences
In addition to duplication of existing offence, Sec. 66A increases the jail terms excessively of existing offences. In the case of Heena Bakshi she could have been prosecuted under Sec. 294 of the Indian Penal Code, 1860 was most properly applicable as it contains a punishment for obsence songs and gestures. On conviction of an offence under Sec. 294 the punishment which is prescribed is an imprisonment for a period of three years. However, under Sec. 66A under which she is now booked, she can be now imprisoned for a period of 3 years.
Offence under Sec. 66A applies only to online speech
Sec. 66A as a section only applies to online speech. This presents a problematic outcome where the same speech may be legal offline but may be illegal online. This has the tendancy to place an unreasonable restraint on a medium without a valid diffrentia or purpose.