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Freedom Of Speech vs Section 66A

Published on Sat, Mar 07,2015 | 14:24, Updated at Mon, Mar 16 at 17:54Source : CNBC-TV18 |   Watch Video :

Documentaries blocked, books banned, cartoonists jailed and ordinary citizens arrested for irreverent tweets and Facebook posts. It is a systematic attack on our freedom of speech, by governments old and new, and the ammunition has been provided by Section 66 A of the Information Technology Act. The most recent victim – a Mumbai based standup group – All India Bakchod was forced by a flurry of FIRs and PILs to withdraw the video of a roast. Payaswini Upadhyay finds out why India is silencing its people and whether the SC will come to the rescue?

 “Some foul, horrific things are going to be said tonight. I am not kidding…I truly am not. If you are easily offended or even difficultly offended, you should leave right now. …let the filth begin”

-    And with that filmmaker Karan Johar began to roast actors Ranveer Singh and Arjun Kapoor – commenting on their sexual lives and insulting them in jest. This AIB event took place in Mumbai on December 20th and a month later the group posted the video online. With an explanation that ‘Roasting is a comic art form that originated in 1949 in New York. The (following) video is filthy, rude and offensive.”   

And many took serious offence. Among them social activist Santosh Daundkar in Mumbai, another activist in Lucknow and a police inspector in Pune filed police complaints (FIRs) against members of the comedy group, the show hosts and audience members as well. Sharmila Ghuge- a law professor in Mumbai found the content offensive as well and filed a public interest litigation in the Bombay High Court.

The FIRs and the PIL allege criminal conspiracy, doing an obscene act in public, outraging the modesty of a woman under the IPC. But the IPC does not cover content on the internet. The provision of law that enabled these complaints is Section 66A of the Information Technology Act because they followed after the show was uploaded on YouTube.  

Section 66A prescribes 3 years of imprisonment for a person who sends information that is grossly offensive and messages that are likely to cause annoyance, inconvenience, danger, obstruction, insult..etc via a computer or communication device. India’s Sec 66A is modeled around Sec 127(1)(a) of UK’s Communications Act, 2003 that also seeks to penalize “grossly offensive” online communication. In 2006, the House of Lords read down the Section when it said- ‘whether a message was grossly offensive did not depend merely on the degree of offence taken by the complainant but on whether it violates the basic standards of an open and just multi-racial society.’   

Apar Gupta
Partner, Advani & Co.
“The phrase ‘grossly offensive’ appears in Sec 66A of the Information Technology Act- now what’s curious about this phrase is that it is contained with other phrases like annoyance and by themselves the phrases are not defined and there are no ingredients to the provision by itself. There is no internal aid for statutory construction and the judiciary has not had an occasion till now to define it.”

Sidharth Luthra
Senior Advocate, SC
Former Additional Solicitor General of India
“When we brought in  the Information Technology Act, we put a lot of words- gross offensive, annoyance etc- are not defined in the IT Act or in teh General Clauses Act where it could have been defined.)) They are also not defined under the Indian Penal Code. Now the IPC could have been used illustratively but the absence of definitions is causing a serious concern. It elaves a lot of ambiguity which can be exploited.”

Pranesh Prakash
Policy Director - Centre for Internet and Society
“They don’t even have to meet the standard of grossly offensive- whatever that might be. It just needs to be shown that they have caused annoyance through an electronic communication and that would be sufficient.”

In thin skinned India just about anything can be ‘annoying. Political cartoonist & Jadavpur university professor Ambikesh Mahapatra was arrested for caricaturing West Bengal chief Minister Mamta Bannerjee. Sanjay Chaudhary -a civil engineer with the public works department in UP - was arrested for posting ‘objectionable comments and caricatures’ of Prime Minister Manmohan Singh, Union Minister Kapil Sibal and Samajwadi Party President Mulayam Singh Yadav on his Facebook wall. A Puducherry businessman was arrested for an allegedly defamatory tweet against P Chidambaram’s son. Cartoonist Aseem Trivedi faced the wrath of Sec 66A for his cartoons that allegedly offended the Parliament and India’s Constitution. When Shaheen Dadha and her friend liked a Facebook comment questioning the Mumbai shutdown over Bal Thackery’s death – they too were arrested.

Pranesh Prakash
Policy Director - Centre for Internet and Society
“Annoyance is such a low bar that I believe any many others along with me believe that Section 66A of the IT Act is unconstitutional because remember, in India, the government can’t just declare anything illegal in form of a restriction on speech- they can only do so within the parameters laid down by Article 19(2) of the Indian Constitution and it says that every citizen has the right to freedom of expression.”

And to protect that freedom, some citizens challenged Section 66A in the Supreme Court.
9 different petitions were filed - all making the same argument- that language of Sec 66A is vague and incapable of being judged on objective standards, it is susceptible to abuse and it violates freedom of speech and expression guaranteed by Article 19. In 2013, even as the SC was hearing the matter, the government issued guidelines mandating that only a senior policeman could order arrest under Section 66A. But the abuse continues.
 
Apar Gupta
Partner, Advani & Co.
“This was supposed to be a safeguard against any kind of arbitrary arrest. However certain instances have been brought to light by the media whereby it has been demonstrated that this level of safeguard has not been effective in checking any arbitrary application of this provision. A lot of commentators have also stated that the vice or the unconstitutionality of Sec 66A is inherent which is to say that the court cannot read it down to an extent whereby it will constitute a separate offence by itself because criminal enactments have to be interpreted strictly with respect to the intention of the legislature.”

Sidharth Luthra
Senior Advocate, SC
Former Additional Solicitor General of India
“One of the thoughts that comes to mind is that it's time to amend the law - a) define the terms mentioned in Section 66A to being clarity as to what these terms mean and b) we need to make it clear that the police can only investigate on a complaint made by the person impacted or their immediate family members; not by any third party. The concern here is that there is loss of reputation of Mr X and t he point is that Mr X may not come to court but we have a lot of people who just come and file a complaint and since it's a cognizable offence, the police will investigate.”

Coming back to the tragedy that befell the comedy group AIB -  it is not only facing the wrath of Sec 66A but has also been accused of violating the obscenity Sections under the Indian Penal Code.

Section 292 of the IPC makes it an offence to sell, distribute, circulate, publicly exhibit or even possess obscene content for public exhibition. And Section 294 prohibits any acts of obscenity in a public place. And that begs that question, if provisions of the IPC already regulate obscene content, what was the need for Sec 66A?

Apar Gupta
Partner, Advani & Co.
“You are completely correct. The IPC by itself applies to any content that is shared on the internet. The Information Technology Act which also has distinct provision with respect to criminal offences is an added layer on top of that. Now if you look at the parliamentary history with respect to Sec 66A, the only whisper with respect to its intent is found in the Standing Committee’s report where an indication is given that originally it was intended to curb email spam. Now this is fairly curious that an email spam will be causing annoyance or be grossly offensive to the degree that it requires a criminal penalty of 3 years imprisonment. Contrast that with how much spam we get on our phones by messages and calls and what is the penalty for that- the TRAI prescribes that if the marketer does that on a repeated basis, there will be a monetary fine and their connection will be terminated.”

In 1969, India’s Supreme Court held that if the burden to ensure that adolescents don’t come in contact with sex is placed on the authors then they would never be able to write for adults! After 46 years, the Supreme Court has been called upon to answer that question again- only now, the medium has changed- should the creator of content be sent to jail because a person finds that content annoying- a much lower threshold compared to obscenity. And more importantly should we trade off freedom of expression with subjective concepts like inconvenience and insult? For now, the apex court has reserved its answer to these questions.

In Mumbai, Payaswini Upadhyay

 
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