Baijayant Jay Panda, Lok Sabha MP from Kendrapara, Odisha (BJD), has filed a Private Member’s Bill in the Lok Sabha seeking the amendment of Section 66A of the IT Act. In the draft to the amendment, which Panda has also posted on his official website, he has mentioned that it’s important that the rights of Indian citizens to express themselves freely over the internet be zealously protected, and has highlighted the problems with the drafting of the original law.
He has pointed out that the terms like ‘grossly offensive’ and‘menacing’ are not only impossible to define but also highly subjective by individual standards, and that same punishment for ‘annoyance’, as well as ‘criminal intimidation, by bundling of disparate terms within the same clause would lead to confusion and misuse. He has also highlighted the discrepancy in punishment terms for same offences committed via the electronic medium and otherwise, and the offences under the law being cognizable. In his bills he’s sought repealing of Clauses (a) and (b) of Section 66A and rewording of Clause (c) to provide a potent anti-spam provision. The bill can take months to list in the house.
Note that earler this year, P.Rajeeve, a Rajya Sabha MP from Kerala, and a member of the Communist Part of India (Marxist) had moved a motion in the Rajya Sabha for the annulment of the Information Technology (Intermediary Guidelines) Rules 2011, but the motion was defeated in the Upper house. The motion was related to the scrapping of the Rules which made intermediaries responsible for content posted by individuals on the internet.
The Indian government had yesterday, issued guidelines to prevent the misuse of the IT Act and had said that approval from an officer of DCP level in the rural areas and of IG level in the metros will have to be taken before registering complaints under Section 66 (A) of the IT Act. The Indian Supreme Court also admitted a PIL (Public Interest Litigation) filed by a Delhi student, Shreya Singhal, challenging Section 66A of the IT Act,
Here’s a draft of the bill moved by Jay Panda:
‘There has been phenomenal growth in the use of the internet for the exchange of information, ideas and opinions. Since easy accessibility makes the internet especially empowering, it is extremely important that the rights of our citizens to express themselves freely over the internet be zealously protected. However, law enforcers have on several occasions, misused the law to subvert these rights.
Part of the problem is the law itself, which has been drafted in a broad manner that leaves wide scope for misinterpretation and abuse. Section 66(A) of the Information Technology Act, 2000 (IT Act) in particular, has come under severe criticism from various quarters.
Clause (a) of Section 66A uses expressions such as ‘grossly offensive’ and‘menacing’ which are not only impossible to define but also highly subjective by individual standards.
Clause (b) prescribes penalties for offences such as ‘annoyance’, ‘criminal intimidation’, ‘insult’ and promoting ‘hatred’ or ‘ill- will’ between groups. Prescribing the same punishment for ‘annoyance’, as well as ‘criminal intimidation, by bundling of disparate terms within the same clause is bound to lead to confusion and misuse.
Moreover, most of these offences are already covered under various sections of the Indian Penal Code, 1860 (IPC). As a result, offenders often get booked under both the statues for the same offence.
Clause (c) of the section is meant to be an anti-spam provision but does not do justice to the requirement of either the users or the industry.
What is more, in some cases, penalties for the same offences are higher in the IT Act as compared to those in the IPC. Thus, if an offence is committed through an electronic medium such as the internet, it would attract a higher penalty than otherwise. For instance, threatening someone with injury to their reputation through email attracts a penalty of three years imprisonment under the IT Act while the same offence when committed verbally attracts a penalty of two years imprisonment under
the IPC (Section 503 and 506). This is inconsistent and wrong.
The significance of this change goes beyond the increase in penalty. Under the Code of Criminal Procedure, 1973, offences punishable with a jail term of three years or more are ‘cognizable’. This means that a police officer can make the arrest without a warrant. This leaves more discretion to the police officer and makes the Section liable to misuse.
Our Constitution accords high importance and sanctity to the freedom of speech and expression. Article 19(1) of the Constitution provides people the freedom to freely express their opinion while Article 19(2) empowers the legislature to impose ‘reasonable’ restrictions on this freedom. Reasonable restrictions can only be imposed in the interest of the “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” No other grounds qualify.
India’s Supreme Court itself has upheld that restrictions on freedom of speech and expression should be narrowly and specifically defined, and it is pertinent to note that some other democracies use the principle of incitement to violence with clear and present danger as the defining guideline for such restrictions.
Given that Section 66A of the IT Act is broadly defined and open to interpretation by the enforcer, it ceases to be ‘reasonable’. The present law needs to be amended in order to narrowly delineate the contours of situations under which free speech on the internet may be restricted. Any attempt to provide our people an atmosphere conducive to healthy debate and deliberation, will have to begin with an amendment of this Act, which strikes at the very root of our democratic values.
I believe that clause (a) and (b) of Section 66A must be repealed, while clause (c) must be reworded to provide for a potent anti-spam provision. Several countries such as the US, UK, Canada and Singapore already have a comprehensive antispam legislation in place. In India, despite the observations of the Standing Committee and the demands from the industry, the IT Act did not adequately address the issue of spam. Through this Bill, I try to do just that.