Section 66A of the Information Technology (IT) Act can be misused. Here is how you can protect yourself and avoid getting arrested while voicing your opinion on social media sites like Facebook, Twitter, etc
At the 142nd seminar of Moneylife Foundation, Yogesh Pratap Singh, a former IPS officer and now a well-known advocate and activist, spoke on the IT Act and the draconian Section 66A. Section 66A provides for a jail term of up to three years for anyone who uses a computer or any other communication device to send information that is grossly offensive, menacing, causing annoyance or hatred. Following the uproar over arrests made under Section 66 (A) of the Information Technology Act, 2008, the government had issued guidelines that state approval from an officer of the rank of deputy commissioner of Police (DCP) level in rural areas and Inspector General (IG) level in metros will have to be sought before registering complaints under the controversial section. But still, how far would such instances not be repeated would still be an issue.
Who better to explain the nuances of the law and the power of the State than the firebrand YP Singh. He has taken up innumerable public interest issues and does not hesitate to challenge the system. Section 66A of the IT Act is vague and can be misused. Abusing a person who is physically present is not a crime, but if someone abuses a person over online media, it can be a crime as per Section 66A. If one sells pornography on the street then six months’ imprisonment is given, but if done online then it comes under section 66A of sending obscene messages and the punishment is five years, clarified Mr Singh. This Section curtails the fundamental right of freedom of speech and is not defined properly. Mr Singh said phrases such as “grossly offensive” and “menacing character” have to be defined properly as they are subjective. One may say a particular comment is offensive, whereas, someone else would say it’s calling a spade a spade. Thus where interpretation is wide not only arbitrariness comes in but corruption sets in, as well.
Law is determined by passion and not by reason. There cannot be two interpretations of the law, else there will be no equality. “Any law to be sustainable has to be applied equally to all. Law can’t be different for different people,” said Mr Singh. “For the law to be applicable fairly, all definitions have to be clear. The meaning of what is an offence has to be crystal clear. Section 66 is not at all clear. Most of the police force are unaware of the intricacies of the law. In any sense, the actual practice is ‘show me the face and I will show you the rule’, as the police say ‘pehele action baad mein section’.” he added. A police officer has to maintain law and order to save his posting. Thus to avoid any conflicts as seen in the Palghar case the girls were arrested and the sections were applied later. The two girls were first booked under Indian Penal Code (IPC) sections 295A (hurting religious sentiments). When it was realised the Shiv Sena is not a religious group the girls section 295A was dropped and section 505(2) (promoting enmity or ill-will between classes) and section 66A were applied.
The new guidelines may have no effect, as there is rampant political interference in law enforcement is itself. Therefore it is difficult to say that senior police officers will always resist mob pressure.
Cyber crime is still nascent in India. In 2010, 966 arrests were made under the IT Act most of them were under section 66A. In 2011, the figure increased by almost 90% to 1,791 cases. Around 20%-30% of the arrests were from Maharashtra.“The IT Act does not clearly define whether an offence is cognizable or not. However, if the offences is more than three years, the offence is cognizable and bailable, said Mr Singh.
A few weeks back two girls were arrested over a Facebook post criticising the bandh-like situation in Mumbai after Shiv Sena chief Balasaheb Thackeray's death while another boy was arrested for posting ‘vulgar’ comments against MNS chief Raj Thackeray and the people of Maharashtra on the social networking site. Other incidents in the past have been reported in New Delhi, Puducherry and West Bengal.
“But no matter what business he may be doing the police has to maintain law and order, this cannot be compromised. Now what happened in the Thane rural case? The Sena guys were putting pressure on the police to arrest the two girls. To maintain law and order, the girls were arrested and then the Section applied based on negotiations with the politicians. This is against all acceptable legal processes,” said Mr Singh.
The second half of the event witnessed a highly interactive session where participants put forth their queries.
Membership to Moneylife Foundation is free of cost where members get access to such informative seminars and can utilise the state-of-the-art facilities at the Moneylife Knowledge Centre, to empower themselves.