The ongoing hearings in the Supreme Court have pitted free speech advocates, questioning the constitutionality of Section 66A of the Information Technology Act, against the government, which stubbornly defends the need to retain it in the statute book. Section 66A criminalises the communication of information through electronic devices that is “grossly offensive, or has menacing character”; or any information known to be false, but is communicated for causing “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill-will”. The government has shown flexibility to the extent that it has admitted “aberrations amounting to abuse”. It has also promised not to invoke Section 66A on Facebook or Twitter posts that involve citizens exercising their freedom of speech and expression, but causes “annoyance, inconvenience, danger or obstruction”. This concession by the Centre is hardly a concession. There are other clauses like “grossly offensive” in Section 66A that directly militate against the idea of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. 

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The government’s contention has been that Section 66A is needed in the statute to combat cyber crime. But then how did this section become a tool to effect arrests of innocent citizens who were only exercising their free speech? Merely dismissing those as “aberrations” only serves to mask the fundamental flaw in this legislation. Section 66A is so vaguely and broadly defined that it has become one draconian, gargantuan provision subsuming what are several Indian Penal Code (IPC) sections like 153A(promoting enmity between different groups), 295A(deliberate and malicious acts, intended to outrage religious feelings), 499(criminal defamation), 503 (criminal intimidation), 504 (intentional insult with intent to provoke breach of peace) and 505 (statements conducive to public mischief). There are also other IPC sections like 292A (Printing, etc, of grossly indecent material), 507(criminal intimidation by an anonymous communication) and 509 (word, gesture or act intended to insult the modesty of a woman) which are subsets of Section 66A. With so many IPC sections available to tackle abusive communication, do we really need a super-provision like Section 66A to combat cyber crime?

Yet another clever manner in which the government defended Section 66A in court was to highlight extreme instances of mischief like the morphing of images of gods and goddesses to incite violence and riots. While it is pointless to predict which way the Supreme Court bench will decide the petitions, the oral observations made by the judges to such submissions was quite revealing. One judge noted that the government was pointing out “black and white” cases of offensive content while the majority of cases fell in the “grey area” that offered opportunities for misuse of power. They also pointed to history and Galileo’s fate when the Church took offence to his scientific discoveries. The Bench also posed a hypothetical question about what would happen to a person who published posts in support of religious conversion but people not agreeable to this view would file a police complaint. This is where we come to the heart of the matter. It is impossible to regulate social media. There is a proliferation of abusive content on Twitter and Facebook, mostly targeting celebrities, and most have given up on seeking legal recourse, preferring to ignore the “trolls”. However, politically and ideologically motivated individuals have not adopted the same strategy of ignoring those causing “offence” to them, and this is the reason why Renu Srinivasan, Shaheen Dhada and Ambikesh Mohapatra were arrested. In a society slow to accept liberal values, an illiberal law can only impede the process.