Okay, Section 66A of the Information Technology (Amendment) Act, which was voided by the Supreme Court on Tuesday, was badly drafted. It needed to go. But there is no need for unbridled celebration yet. For, the abuse of the new medium by all manner of juveniles and other crazies too is a proven fact. And the fear is that the over-the-top revelry over its excision from the statute book can cause a lot of young men to believe that they can now slander anyone and everyone without any concern about defamation or libel. The relevant provisions of the IPC would still apply to the abusers of the social media or other platforms available on the World Wide Web. As we said, Section 66A was bad because the framers had not thought through clearly about its implications. Given that the power-drunk authorities and lowly police officers tend to misuse any such provision, several grotesque cases of harassment of innocent people were highlighted in the media. Frankly, the fault lay not so much with the law, as in the authorities who exploited it to curry favours with their bosses. Whether it was the detention of two young women in New Panvel, or the arrest of a university professor by Mamata Banerjee’s police, or the harassment of a cartoonist, in each case, the culprit was the police officer. That is why we will counsel a sense of proportion in reacting to the deletion of 66A from the IT Act. For, we cannot be sure that even an excellently framed law which might replace the one the apex court found unconstitutional on Tuesday would not likewise be misused to harass completely innocent people on extraneous grounds. Yes, read in isolation, Section 66A did not carefully define the reasonableness required for curbing a citizen’s fundamental right of free `thought and expression. ’ There can be no quarrel with that formulation of the brilliant polymath, Judge Rohinton F Nariman, who wrote the judgment for the two-member bench, the other member being Justice J Chelameswar. Judge Nariman, expectedly, batted for free speech. He knocked out the offending section which failed to meet the test of reasonableness while prescribing restrictions on Article 19 (1) of the Constitution, which guarantees every Indian’s right to free speech. Judge Nariman wrote in his order that “none of the expressions used in Section 66A are defined. Even `criminal intimidation’ is not defined — and the definition clause of the IT Act, Section 2 does not say that words and expressions that are defined in the Penal Code will apply to this act. Every expression used is nebulous in meaning.” A badly and hurriedly drafted law was precisely the kind that would lend itself easily to abuse by the authorities. Yet, the implication of the court’s order is unambiguous. That is, a clear-headed law in consonance with various provisions of the Constitution can still replace the deleted Section 66A. Unlike the print and audio visual media, internet is rather difficult to monitor for criminal defamation, incendiary and subversive propaganda, terror recruitment, but it can be nobody’s case that for that reason it should be left unsupervised.
Take note that periodically on the demand of the law and order authorities, the internet and, even cell phone services are discontinued in the insurrection-hit Kashmir Valley. Indeed, it is fair to say that the campaign against Section
66A would not have been so strident had the authorities not abused it so flagrantly.
Judge Nariman’s scintillating order nowhere precludes a better drafted provision replacing the deleted Section 66A. Notably, all cases in which the now impugned provision was misused pertained to the alleged offence caused to important politicians. That is the reason we cannot be certain that the new section which might replace Section 66A will not be similarly abused. Meanwhile, one is amused by P Chidambaram’s attempt to pose as a liberal, given his most stridently
anti-free speech record while in power, when he arranged to penalise anyone who had the audacity to mention a word edgeways against him.
Indeed, one of the few cases of abuse of the law pertained to Chidambaram’s son when an innocent Tweeter in Puducherry was hauled up for forwarding a tweet about the father-son duo. The Congress Party too impresses no one trying to disown the offending Section 66A. After all, it was the one to have put it in the statute book. The BJP also erred in defending it in the apex court once it came to power. But, as we argued above, an effective law to prevent the abuse of the internet for all manner of offences, including breach of privacy, pornography, defamation, subversion et al, must be put in place lest the crazies and the loonies abuse the new media for unholy purposes.
