The Calcutta High Court should make the Modi government think
In a landmark judgement, the Calcutta High Court penalised the West Bengal government and ordered action against police officials who had arrested professor Ambikesh Mahapatra of Jadavpur University in 2012 for forwarding an email joke about Mamata Banerjee, chief minister of West Bengal. The state has been ordered to pay Rs50,000 in compensation and another Rs50,000 in costs to the professor.
Although a high court order does not have the same finality as a Supreme Court judgement (where a case is pending), it has sent a wave of relief among victims of cases filed under Section 66A of the Information Technology (IT) Act. This Section has been repeatedly abused by powerful politicians, political parties and their followers to silence critics and violate human rights through the abuse of the draconian power to arrest and jail those who speak their minds, especially on social media.
Section 66A provides the power to arrest a person for sending grossly offensive or menacing messages, or causing annoyance and inconvenience through electronic communication service. It prescribes a three-year jail term, if found guilty. The wording of the Section has been liberally misinterpreted to harass and intimidate people by arresting them.
While the Act has been repeatedly challenged, the Supreme Court, in 2013, diluted the power of arrest by ruling that no person can be arrested for social media posts without prior approval from an officer of the rank of an inspector general of police. This case, too, was in connection with comments posted on social media about a member of the legislative assembly (MLA) of Tamil Nadu. An advisory to this effect had been issued in states like Maharashtra even earlier after controversial arrests.
Activists and freedom of speech proponents in India have keenly followed a clutch of petitions challenging the constitutional validity of Section 66A in the Supreme Court on the grounds that it violates Article 21 of the Indian Constitution, guaranteeing our fundamental right to freedom of speech and expression.
The examples of misuse of Section 66A by politicians are many. In 2012, two young girls were arrested and terrorised by a mob for a harmless Facebook post criticising the shutdown of Mumbai for the funeral of Shiv Sena supremo Bal Thackeray. One of them had merely ‘liked’ the post.
Karti Chidambaram, son of former Union minister P Chidambaram, had a Puducherry businessman arrested at night for some posts on Twitter. This case, too, had sparked outrage on social media. Section 66A has even been applied with other provisions of the Indian Penal Code for cases involving cyber-squatting and impersonation.
In February this year, the apex court completed its hearings and has reserved its order. Since the government has made it clear that it is not taking an adversarial position in court, there is a good chance that Section 66A will be defanged, either due to a court order or an amendment of the IT Act to redraft the draconian and highly abused Section. Until then, however, it is not unusual to find people threatened with action under this Section at various forums.