State getting increasingly illiberal?
The controversial Section 66 (A) of the Information Technology Act has finally struck Andhra Pradesh and immediately hit the national headlines. A...
The controversial Section 66 (A) of the Information Technology Act has finally struck Andhra Pradesh and immediately hit the national headlines. A Jaya Vindhyala, state president of the PUCL, was arrested by the police on the charges of defaming two political bigwigs through her postings on the Face Book. However, she and a host of civil libertarians and intellectuals refuted that charge saying what she posted was no differentA from any normal comments and reports in print and electronic media. According to them, the very intention behind the Draconian Section is to curb use of new technologies by people who are increasedly agitated over the things going astray in the country. Several instances A beginning with the arrest of two Mumbai girls are a testimony to this, they argue. If the Centre's guidelines to check the misuse of the Section failed to achieve the purpose, can the Supreme Court's directive of May 16 have any better impact? It is in favour of female victimsA IT Act Sec.66 (A) is being discussed every where and my personal feeling is, it is quite useful section to curb online harassment, hatred, insult if this particular section is used to arrest criminals who are harassing female victims. Nearly 80 per cent of victims are female. In one or two cases police utilized the section for petty reasons. However the Act itself is very young; in future we can expect good case laws will help the prosecution. Though defamation par se is not a cognizable offence as per IPC, but IT Act in case of online defamation considered it to be cognizable offence and whatever defamation we are seeing today is online using communication devices thereby defamation under IPC is almost extent. In these circumstances Supreme Court has appropriately issued guidelines that under 66 (A) to arrest a suspect, it requires prior permission from SP and above to control the SHO level officers. However even in case of arrest of such, the bail can be immediately granted as it is defined as bailable offence. Even police officers can grant bail under Section 41 as per the latest amendment in CrPC. At this juncture, further meddling with the section will be counter productive and may cause hindrance to apply the section, particularly in favour of female victims. First case in AP The charges against Jaya Vindhyala, under the Section 66 (A) of the Information Technology Act, happens to be the first such case in Andhra Pradesh. However, it would not have been so if the state police had their way. When the issue of "hate speech" by MIM legislator Akbaruddin Owaisi was raging some months ago, two local youth of Bhainsa town in Adilabad district posted certain comments against him on the FB. They were Brajesh Vyas and Narender Murari. The town police who booked a case against them under general sections wanted to make Section 66 (A) also a part of it. But as the case against the two Mumbai students Shaheen Dadha and Renu Srinivasan in Bal Thackrey issue attracted widespread criticism, that deterred the Bhainsa police to move against the local youth. Otherwise, that would have been the first case under this section and that of the civil liberties leader the second one. Other cases in different states There have been several cases booked against individuals under Section 66 (A) of the Information Technology Act so far. A few of them are listed below: 1)When the Shiv Sena chief Bal Thakrey died and the party organized Mumbai bandh, two women Shaheen Dadha and Renu Srinivasan posted their comments on the Facebook. Mumbai police charged the two under the Section calling the comments "grossly offensive" and also "menacing". Ultimately, the case was withdrawn in the face of nationwide protests. 2)Aseem Trivedi, a cartoonist, posted his cartoons lampooning Parliament and the Constitution. He was promptly charged, but was later let off following strong protests. 3) Prof Ambikesh Mahapatra of Jadhavpur University made a few cartoons against the Chief Minister Mamata Banerjee and posted them. The police booked him under the draconian Section. Though the Professor was released, state of the case is not known. 4) A fourth high-profile case involved a businessman from Puducherry, Ravi Srinivasan. He had the temerity to make certain comments against Karthi, the son of Union Finance Minister P Chidambaram. His comments were considered as "defamatory". Even though a separate act to deal with defamatory cases is available, the police have chosen the 66 (A) section of the IT Act. Present state of the case is not known. 5) V Jagannatha Rao and Mayank Sharma, two employees of the Air India, were charged by the Mumbai police for their FB postings against a trade union leader and some politicians. 6) For posting "objectionable comments and caricatures" of Prime Minister Manmohan Singh, HRD minister Kapil Sibal and Samajwadi Party president Mulayam Singh Yadav, the Delhi police arrested Sanjay Chaudhary. PILs in Supreme CourtA Several PILs have been filed in the SC, challenging Section 66 (A). In one of them, Shreya Singhal submitted that it curbs freedom of speech and violates Articles 14, 19 and 21. The petition contends that the expressions used in the Section are "vague" and "ambiguous" and that 66A is subject to "wanton abuse" in view of the subjective powers conferred on the police to interpret the law. In reply to the petition, the government defended the constitutionality of 66 (A) relying on the "Advisory on Implementation of Section 66 (A) of the IT Act 2000" issued by the Department of Electronics and Information Technology on January 9, 2013, to the Chief Secretaries and the Director General of Police of all States/UTs. The advisory asks States not to allow the police to make arrests under 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. A puzzle�Why netizens are discriminated against? The freedom generally guaranteed under Article 19(1) (A) to citizens including general media is not available to the netizens. If netizens make comments which could be made generally by citizens, they can be arrested. A This is where Article 14 is violated Whether it is misuse and highhandedness of political power that made Section 66 (A) bad, or is it inherently problematic provision? A While a PIL questioned the constitutionality of this law in the Supreme Court, describing it as 'unconstitutional', the Ministry of Communication and Information Technology defended it saying "highhandedness of certain authorities does not mean it is bad in law". Government argued that it was a 'reasonable' limit while it was strongly contended as 'unreasonable restriction' as per Article 19(2) over the freedom of speech guaranteed by Article 19(1) (A). Undoubtedly there is no absolute free speech right, but that does not mean unreasonable restrictions could be imposed. Of all the arrests made under Section 66 (A), the one involving two girls Shaheen Dadha and her friend Renu Srinivasan, for a comment posted on FaceBook that questioned the shutdown of Mumbai following the demise of Shiv Sena supremo Bal Thackeray, shook the nation which understood the abusive power of this section. Recently Jaya Vindhyala was arrested for making allegedly defamatory statement about Governor of Tamil Nadu, K Rosaiah and Chirala MLA Amanchi Krishnamohan. Most of her comments are political. Some could be defamatory, but all were considered as 'annoying' or 'embarassing' for those who were criticized. Certainly Jaya has no right to defame the two individuals. But they are free to file defamation case against her either in civil or criminal court, and if she fails to prove truth of it or fairness of her comment, she might end up paying or going to jail. Does it mean that in a democracy, the political personalities and public officials should not be commented upon? If that is so, what is the meaning of freedom of speech and expression to make critical analysis of functioning of public offices? Mumbai arrests and other events show that officer of any level or a minister can consider any comment as "offensive" and get the writer arrested. The law should guarantee protection from highhandedness of executive but should not facilitate it. When it is drafted and proposed, several critics raised these objections to open ended and highly ambiguous penal provision violates Articles 14, 19 and 21 of the Constitution. The freedom generally guaranteed under Article 19(1) (A) to citizens including general media is not available to the netizens. If netizens make comments which could be made generally by citizens, they can be arrested. This is where Article 14 is violated. In these cases no one was arrested when people like Justice Markandey Katzu, print media and critics on TV made more severe comments than those Maharashtra girls. The authorities chose only ordinary innocent persons who were not professional critics like journalists or persons belonging to opposition parties. While general criticism is protected under Article 19, the same on cyberspace leads to arrest. If a critic defamed a minister, the latter has to file a criminal or civil defamation case, for which immediate arrest is not prescribed. If a minister feels he is defamed, he could prosecute for a lesser offence of defamation (maximum two years of imprisonment). But under IT Act same could be punished with three years' imprisonment and huge fine. As per the amended law of arrest, the police need not arrest accused who are charged with offences which are punishable with less than 7 years of imprisonment, except when the police officer considers the accused could cause serious damage further or for any other recorded reason can arrest. Thus if a sub inspector finds a comment on social media, he can consider that accused should be arrested. This is violation of both fundamental right to life (Article 21) and right to free speech (Article 19). Even for crime of defamation, the truth, fair comment, and privileged communications are defences which enhance scope of criticism, a requirement of democracy. For Section 66 (A) there are no defences prescribed or recognized at all. If a girl says 'I love you' to Mr. A on a social media website, it could be annoying to Mr.Y who is known to be liking her, can Section 66 (A) be invoked to arrest the girl for annoying Mr A? The text of Section 66 (A) can be interpreted by a police officer. After several incidents of abuse of power by the rulers, the rules under Section 66 (A) were modified to say that a prior approval from Deputy Commissioner or IGP level officers is needed before the Station House Officer can register such complaints. Without striking off this section, it is useless to amend the rules and involving only higher officials to decide on arrest. (The writer is Professor & Coordinator, Center for Media Law & Public Policy, NALSAR University of Law, Hyderabad) Section used on flimsy grounds Now a rights activist is immediately put in jail because she came out with a report which shows in bad light a people's representative. No one makes investigations into the truth of those allegations It happened again. Police arrested one more activist under the Section 66 (A) of IT Act. Even though everyone knows it is a blatant attack on the right to free speech guaranteed by the Constitution of India such violations have of late become routine in the guise of enforcing the said Act. Who are these people arrested under this section? Are they criminals hell bent on harassing decent citizens or perverts attacking women by obscene proposals or some such elements? One person caused "inconvenience" to the relative of powerful Pawar saheb by making allegations on the web. One Professor annoyed Mamata di by drawing some cartoons on her. Another one dared to comment on the Union Finance Minister's son. Two Air India employees made allegedly defamatory remarks on a union leader. Yet another cartoonist drew pictures on Parliament and its paralysis -- an embarrassment to all MPs. one put malpractices of a very famous MBA institute on FB. So they were all arrested. Even if the net is accessed by only a few in India, pointing fingers and mocking is just intolerable. If they ignore these fingers today, a million fingers may be pointing at them tomorrow. Now a rights activist is immediately put in jail because she came out with a report which shows in bad light a people's representative. No one makes investigations into the truth of those allegations. Those who claimed to be defamed by such allegations neither challenged them nor asked for proof so that they can come out of it clean. That shows what they are, that is why they invoke 66 (A) of IT act. When there was a hue and cry against the arrest of the two girls of Mumbai followed by Supreme Court's intervention and a lot of PILs in Supreme Court challenging section 66 (A), the Union government sent an advisory to States not to allow police to make arrests without proper approval from an officer not below the rank of IG of police in cities or DCP or SP at district level. But such arrests continue. But why a country like India, a democratic welfare state, makes such Draconian provisions of law which have such demonstrably great potential for abuse is the crucial question. Not a day is gone without a new scam or scandal surfacing that involves big wigs or corporates. So naturally all those who are concerned have started questioning this mafia raj. Amassing the wealth by a few at the cost of the poorest multitudes naturally leads to protests. Such protests may or may not be using latest technology, or social websites. But, when young and educated do it that becomes a dangerous scenario for vested interests. When there is an opportunity to go for civil defamation, what's the need for criminal cases? Why target web content alone? Why not print media or public speeches where allegations are fired rapidly by every politician in the most reprehensible way? Can a true democracy survive if free speech is criminalised and punished? Is there a yardstick for gross offensiveness which remains undefined in both Section 66A and section127-1(A)? Are we not going to examine the particular message or text sent in particular context, expressing or sharing their views or findings that are in the interests of public like in the case of Jaya Vindhyala? They may be indicted by judiciary later. But these individuals are arrested and interrogated on flimsy and tenuous grounds which amount to violation of fundamental rights of citizens. It definitely has an adverse effect on exercising freedom of speech. Therefore, the constitutional protection of free expression should not be allowed to be eroded by potentially and demonstrably Draconian provisions of the IT Act. The Parliament should seriously look at revamping the law to ensure freedom of speech. Guidelines for using the Act The Centre has issued some guidelines for the police in resorting to the controversial Section 66(A) in the wake of its alleged misuse in some cases. The government in the last week of November 2012 issued an advisory to states on how to implement the controversial Section 66(A). No less than a police officer of a rank of DCP and above will be allowed to permit registration of a case under provisions of the Information Technlogy Act that deals with spreading hatred through electronic messages, following uproar over recent arrests under the controversial law. In the case of metropolitan cities, such an approval would have to come at the level of Inspector General of Police. "... the concerned police officer or police station may not register any complaints (under Section 66 (A)) unless he has obtained prior approval at the level of an officer not below the DCP rank in urban and rural areas and IG level in metros." Sec 66 (A) says� 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 by making use of such computer resource or a communication device, c) 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. Punishment - Imprisonment for a term which may extend to three years and with fine. Explanation � For the purpose 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, images, audio, video and any other electronic record, which may be transmitted with the message. The section covers two different acts: Sending offensive or menacing messages sent by using electronic communication means.A Sending false messages to cheat, mislead or deceive people or to cause annoyance to them.
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