The controversial provisions are Sections 66A and 74 of the Information Technology Act and have been largely used to crack down on those who posted allegedly “objectionable material” on social networking sites.
Under Section 66A, individuals posting “objectionable” material can be jailed for up to three years. Under Section 74, intermediaries such as the networking site hosting such material can be slapped with a jail term of up to two years.
Citing the potential for misuse, civil society has been demanding the repeal of the two sections. Ambikesh Mahapatra, a Jadavapur University professor, was arrested under Section 66A for circulating by email a joke lampooning chief minister Mamata Banerjee.
Even after the change of guard at the Centre, the new government has not yet taken a clear-cut stand on the two widely derided clauses.
Today, the Supreme Court warned that it would stay the provisions unless the Centre explained within a week why they had been incorporated in the law.
The apex court rejected the repeated pleas of additional solicitor-general Maninder Singh that the government be given at least two weeks to file an affidavit.
“Either you file the affidavit within a week or we will stay the operation of the provisions until we dispose of the matter. Heavens are not going to fall if the provisions are stayed because this country had been existing for the past 60 years without those provisions.
“We leave the choice to you. Either file an affidavit within a week or we will stay the operation of the provisions, the choice is yours,” a bench of Justices J. Chelameshwar and S.A. Bobde told Singh.
The provisions were first challenged in the top court in late 2012 by a Delhi student, Shreya Singhal, after two teenaged girls in Mumbai were arrested for posting what the Shiv Sena considered objectionable remarks on Facebook against the late Shiv Sena chief, Bal Thackeray.
Subsequently, there was a flurry of petitions from NGOs and civil liberties organisations seeking quashing of the provisions on grounds that they violated the fundamental right to speech and expression.
Agreeing with the petitioner’s counsel Manali Singhal, the apex court said the matter could not be treated lightly as the PIL was filed in April 2012. Over two years have passed but the Centre had not come out with any categorical stand.
Last year, the government had merely informed the apex court that on Section 66A, it had issued a general circular to all states and Union territories saying prior permission of IG-rank officers in cities and SP-level officers in districts would have to be taken before any person was arrested under the provision. There has been no follow-up action on Section 74.
The case in the Indian Supreme Court coincides with one in the US Supreme Court, which is addressing how far the law should protect — not punish — people who use social media to send violent and menacing threats. ( )
In India, Section 66A did not draw much attention when it was passed in Parliament but its power to harass became apparent when several state governments started invoking it to stifle dissent.
Section 66A affects individuals directly as it covers messages sent by “means of a computer resource or a communication device”.
Its reach is sweeping: any information that the sender knows to be false but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will.
“Annoyance and inconvenience” are subjective and can be misinterpreted to launch witch-hunts.
In 2012, a former Chief Justice of India had told this newspaper that Section 66A was unsafe in the hands of authorities and it had been used only “where the powerful have been offended”.
-The Telegraph, Calcutta