The recent arrest of two girls over a Facebook comment criticising the bandh called after the death of Bal Thackeray has created a furore in the digital world and across the nation and, has raised questions on whether the Information Technology Act, 2008, should be amended.
Legal experts are of the view that the Act needs to be amended to be in sync with the changing times and development in the social media.
"Section 66 (a) of the IT Act, which was introduced in 2008 after the Mumbai terror attacks, is in direct conflict with Article 19 of the Constitution, which talks about freedom of speech and expression," said Pavan Duggal, a cyber law expert and advocate with the Supreme Court.
"Section 66 (a) can be misused. It's high time the government put its acts together. This section should be completely removed or its scope narrowed, else the current Act can act as a tool for oppressing freedom of speech," Duggal added.
IT minister Kapil Sibal has also agreed that it is perhaps time to relook at the legislation. "Two things need to be done. We need to educate our enforcement authorities that this is not the way to use this particular section. Two, if we want to make the assurance doubly sure, we may add an explanation to the section, which is something we need to debate to ensure that such things do not happen," he said in a television interview.
Shaheen Dhada, the 21-year old girl, and her friend, Renu Shrinivas, are not the first to be arrested for comments made on a social networks. In October, a small scale industrialist in Puducherry, Ravi Srinivasan, was arrested for posting "offensive" messages against Union finance minister P Chidambaram's son Karti Chidambaram. The person had tweeted that Karti had amassed wealth more than that of Robert Vadra, the son-in-law of Congress president Sonia Gandhi.
Similarly, cartoonist Aseem Trivedi was arrested in September by the cyber crime branch of the Mumbai Police for sedition, as his cartoons poked fun of the corrupt politicians and Parliament. The police had to drop all charges against Trivedi after the Bombay high court blasted the police for its high handedness.
Some lawyers point out that more than the change in laws, most of these incidents are happening due to the lack of understanding for such laws among the enforcement agencies.
Milind Deora, minister of state for communications and IT, seems to be in agreement with the view, as he slammed the Mumbai police for "acting in a haste". He further called for checks to prevent any misuse of the IT Act. "Question isn't about amending 66(a) of the IT Act. It's about preventing misuse by the police, who clearly acted in a haste and applied wrong sections of IPC (Indian Penal Code) and the IT Act," Deora tweeted.
According to the section 66 (a) of the Act, any person who sends, by means of a computer resource or a communication device, any information that is grossly offensive, has menacing character.
"These girls cannot be arrested under the section 66 (a) by any stretch of imagination. The general intelligentsia might feel that the IT Act is too draconian and need to be amended. Though it might not be the best, the Act is very fair. I agree that the section 66 (a) is broadly worded. The problem is not in the wording, but in the police enforcement agencies' understanding of the law," said Sajan Poovayya, managing partner of Poovayya and Co, a law firm, and secretary of the India chapter of the International Commission of Jurists. Rather than amending the existing laws, the government should look at some additions, Poovayya said.
"We should have a clear legislation for procedures of 'take down' of certain content. This should not be governed by the rules of the Central government, but be based on international parameters such as the Digital Millennium Copyright Act and the Communication Decency Act of the US."Meanwhile, former bureaucrat and advocate Abha Singh approached the Maharashtra Women's Commission and filed a case against the Palghar police station.
"I did approach the Women's Commission in Maharashtra and filed a complaint against the police for arresting the girls. The Supreme Court in the Jogendar Kumar case has clearly laid out that arrests should not be made unless they are absolutely necessary and there is no other way except arresting the accused to ensure her/his presence before the criminal justice system or to prevent her/him from committing more crimes or tampering with evidence or intimidating witnesses," she said.