In an historic decision, the Supreme Court struck down the 'draconian' Section 66A of the IT Act, thus guaranteeing citizens fundamental right to freedom of speech and expression
The Supreme Court on Tuesday struck down Section 66A of the Information Technology (IT) Act holding it violative of Article 19(1)a of the Constitution, which guarantees freedom of speech.
Section 66A of the IT Act 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.
Consumer review social media company Mouthshut.com had filed the petition before the apex court. The case was clubbed along with a petition filed by Shreya Singhal, a law student, challenging India's IT Act's section 66A. Because the hearing for 66A and the IT rules were clubbed together by a Supreme Court order, the matter is sometimes referred as Shreya Singhal cases
In a message, Faisal Farooqui, the Founder and Chief Executive of MouthShut.com, said, "....(the) Verdict in our favour. No content take down without Court order. No arrests for posting online. Current law unconstitutional. India is free and so is the internet. Thank you to all of you."
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.
MouthShut.com approached the Supreme Court to nullify Information Technology Rules 2011, which are a part of the IT Act on April 2013. Writ petition was filed by MouthShut.com under Article 32 of the Constitution for quashing the IT Intermediaries Guidelines) Rules, 2011 as it claimed are violative of Articles 14, 19 and 21 of the Constitution of India.
According to the petition, the Rules impose a significant burden on the petitioners, forcing them to screen content and exercise on-line censorship. While a private party may allege that certain content is defamatory or infringes copyright, such determinations are usually made by judges and involve factual inquiry and careful balancing of competing interests and factors, which the petitioners are not equipped to make. The petitioners receive notices and phone calls from cyber cells and police stations asking them to delete content and provide information of users, which makes the running of their business difficult.
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 Balasaheb Thackeray. One of them had merely ‘liked’ the post.
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.
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.
Few days ago, 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.
Most people hate to visit a lawyer at the first sign of trouble. The one thought that comes to mind is the matter of cost. But being penny-wise may amount to being pound-foolish.
As for Mr. Warrier's comment, self regulation, more so self-restraint, is the need of the hour. One understands the build up of bile at being hurt, or mistreated. So, one attacks the keys. It's easy, fast and cheap. The audience is world-wide. It's a load off one's chest.
But then there are other signposts that one needs to heed. Libel, defamation, slander are still on the books. The rule of thumb, to avoid trouble are these three points of reference. 1) What you write must be true and you must be able to prove it. 2)It must carry to a wide audience,3)It must cause harm, either tangible or not, suggested or direct.
So, if you cannot prove what you say, on the internet, and the person harmed proves hurt; you have had it.
The internet was invented for transmission of data. That it is now a tool for attacks is unfortunate. Maybe not as unfortunate as the clampdown that fascist politicians want to put on it. Let us make sure that they do not get the chance. They won's till the judiciary is free.
And the next to fall by the wayside will be the Right To Information Act.
Let's keep our fingers crossed.