It is quite scary when you realise that a Facebook "like" could now land you in jail in India. As one of the two Palghar-based women found out recently -- after she "liked" a comment by her friend on the shutdown of Mumbai over Bal Thackeray's death -- that freedom of expression and thought is quite constrained by the force of law.
Shaheen Dhada was the one who expressed her view that the city shut down for Thackeray "due to fear" and not "out of respect". Her friend, Renu Srinivasan, merely "liked" her comment. They were both booked and held, and subsequently released after a few hours, under Section 66A of the Indian IT Act.
The Act implies that one could serve a jail term of up to three years, and pay a fine, if found guilty of sending "offensive" messages through communication services or devices.
In a case of expression of dissent, all that is needed for you to land in jail is for someone to believe that you sent "false, offensive or menacing messages using computers or communication devices…to cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”.
A mere email message that is "determined" to cause "annoyance or inconvenience" could land you in jail for three years.
So, essentially, if you managed to "annoy" a politician on a social network platform it could likely mean jail term. Misuse of law is made easy as the Act, which has been labelled "draconian" by liberal voices, ensures criticism of anyone or dissent in any form, mild or otherwise, is treated as a crime. As long as there is some authoritative backing, Section 66A can be easily used to enforce suppression of dissenting voices.
While the original law was passed in 2000, Section 66A of the IT Act was amended by United Progressive Alliance II in 2008. Kapil Sibal was the architect behind the Act. The amendment led to a situation where there is not enough procedural and legal safeguards as are present in other parts of the world. The 2008 amendment was in fact passed without any discussion in the Lok Sabha and that is a cause for concern. Even a PIL has been launched seeking to declare Section 66A as unconstitutional and contradictory to the principles of freedom of speech guaranteed by the Constitution.
Petitioner A Marx, a human rights activist, sought to forebear government officials from implementing Section 66A and to suspend its operation, contending that the provision was 'ambiguous' and 'unconstitutional.'
The Act treats dissent as a cognisable offence, as if you've committed murder, and implicates arrest, and forces one to apply for bail.
There have already been at least three cases of misuse of this section, before even Kapil Sibal's colleague's son put it to use.
Earlier this year, West Bengal chief minister Mamata Banerjee used this Act against a hapless Jadavpur University professor, Ambikesh Mohapatra, for his act of emailing to his friends a satrical cartoon criticising the CM.
Cartoonist and anti-corruption activist Aseem Trivedi was also arrested this year and held for a few days under "sedition" charges, insulting the national emblem of the country and violation of Section 66A. Trivedi's "crime" was that he started a cartoon campaign highlighting his views on the extent of corruption in the government.
In October this year, a businessman in Puducherry, Ravi Srinivasan, was arrested for posting "offensive" messages against Union finance minister P Chidambaram’s son, Karti Chidambaram. Ravi had taken to Twitter to claim that Karti had amassed wealth more than that of
Robert Vadra, the son-in-law of Congress president Sonia Gandhi.
Interestingly enough, Section 66A has never been used against politicians. The likes of Subramanian Swamy and Narendra Modi have never been arrested under the Act despite their anti-government views. So it appears the common man is the only one at threat from Section 66A.
A few experts from the Press and the law bodies have expressed strong views against Section 66A and have called for revoking the Act.
They also criticised the Act for giving too much discretionary power to the police.
The Act has faced opposition since 2008 when it was added as an amendment to the original IT Act of 2000.
Law experts have termed it "logically inconsistent".
Hindustan Times quoted lawyer Flavia Agnes as having said: “The section is in conflict with the freedom of expression. If there is a situation where a particular section appears to curtail a constitutional right, the section should be well-defined, which is not the case with section 66A.”
The paper also quoted former IPS official and lawyer YP Singh of saying that phrases such as ‘grossly offensive’ and ‘menacing character’ (mentioned in the Act) have to be defined properly as they are subjective and subject to interpretation. “While abusing a person who is physically present is not a crime, if someone abuses a person over phone or an electronic device, it is a crime as per section 66A. It is a logically inconsistent section,” he added.
Both Agnes and Singh said such a vague law can be abused by the police. “If there is no specification, the police will use the law as per their whims and fancies,” Agnes said.
The paper also quoted Pankaj Bafna, a lawyer who deals with cyber crimes, as raising a very valid question that points to the flaws of the Act: "How will one know what will be offensive for another person?"
Business Standard quoted a senior advocate on the issue. He said: "I think such cases (like the two girls being arrested) will keep cropping up simply because the IT Act is really vast and many of the acts are left on the interpretation of the person using them."
Former Supreme Court judge and chairman of Press Council of India, Markandey Katju has written a letter to Maharashtra chief minister
Prithviraj Chavan in which he has termed the arrest “absurd” and demanded immediate action against guilty officers.
“Under our Constitution, freedom of speech is a guaranteed fundamental right. We are living in a democracy, not a fascist dictatorship. In fact, this arrest itself appears to be a criminal act since under Sections 341 and 342, it is a crime to wrongfully arrest or wrongfully confine someone who has committed no crime," Katju said.