Section 66A not for curbing freedom of speech, govt says

The article by Akansha Seth and Apoorva was published in Livemint on February 3, 2015. Sunil Abraham gave his inputs.

The central government on Tuesday clarified to the Supreme Court that penal provisions of the Information Technology (IT) Act, 2000, were not intended to curb freedom of speech.

Instead, the controversial Section 66A of the IT Act, challenged in the apex court, is designed to fight cybercrime and has nothing to do with any citizen’s freedom of speech and expression, the government said, adding that these provisions seek to protect the right to life of Indian citizens.

The government’s clarification, made in a written submission to the Supreme Court, is significant because the argument made so far in the court by opponents of the controversial section is that they are misused to curb freedom of expression.

The penal provisions deal with online criminal offences like phishing, vishing (voice phishing), spoofing, spamming, and spreading viruses that have a serious potential to not only damage and destroy the computer system of an individual citizen but also bring the functioning of vital organizations and, in extreme cases, even the country to a standstill.

The stand of the government is interesting because it comes on a petition filed when police arrested a 21-year-old girl for questioning on Facebook Mumbai’s shutdown after Shiv Sena leader Bal Thackeray’s funeral in 2012. Another girl who “liked” the comment was also arrested. Last May, five students were detained by police for spreading an anti-Narendra Modi photo on WhatsApp.

“If 66A, as the government argues does not set any additional limits on freedom of speech and expression, then it is wholly unnecessary, serves no purpose and should be struck down by the honourable court. After all it has never been used to tackle the problem of spam which was the original intent,” said Sunil Abraham, executive director, Centre for Internet and Society, a Bengaluru-based think tank.

The central government has clarified that the phrases annoyance, inconvenience, danger, or obstruction as used in Section 66A have no correlation or connection with any citizen’s freedom of speech and expression. Consequently, if as a result of a citizen exercising his or her freedom of speech and expression, annoyance, inconvenience, danger or obstruction is caused while sending anything by way of a computer resource or a communication device, it will not be a penal offence under section 66A.

The government has also argued that if an individual chooses to misuse the provision for a purpose for which it is not intended or resorts to the expressions inconvenience or annoyance in a casual manner, it would be a case of abuse of the process of law. However, it would not be a ground for declaring the provisions unconstitutional if they are otherwise found to be constitutional.

Additional solicitor general Tushar Mehta, appearing for the central government, argued that no one can file a criminal complaint on grounds that they received an information that caused annoyance, inconvenience, etc.—grounds mentioned under section 66A.

Mehta also suggested that the court could come up with guidelines on how to interpret the section, or such regulations could be framed under section 89 of the IT Act which empowers the controller to make regulations to carry out the purposes of the Act, in consistency with it, after consultation with the Cyber Regulations Advisory Committee and with the previous approval of the central government.

Mehta argued that authoritative discretion was required because a precise and concise definition of grossly offensive or menacing character—terms used in section 66A—was not possible. “Nobody can allege that they are annoyed by the exercise of someone’s freedom of speech,” he added.

Gaurav Mishra contributed to this story.