REMOVAL OF SECTION 66 OF ITA, 2008 UNJUSTIFIED?
By Ayushi Gupta
Before looking into the aspect of the removal of section 66A, it is important to emphasize the facts as to why such peculiar action was needed in the first place? Moreover, does the action taken justify the misuse of the power vested to the authorities in the particular section? Information Technology Act,2000 was enacted keeping in mind the increasing number of cybercrime and a need for cyber law legislation. The various provisions laid down are for the protection against the ever-growing crimes on the internet.
Section 66A of the act gives power to the police officer for arrest in case any person with the means of any communication device publishes information that is offensive or menacing in character or any information he knows it to be false but for the purpose of annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will discloses it. The section lays down the punishment of imprisonment which may extend to 3 years with fine. Misuse of the section was reported a number of times but the issue of embezzlement came into limelight when in 2012, a petition was filed by Shreya Singhal for arresting two girls Shaheen Dhada and Rinu Shrinivasan. The two girls posted critical comments on the view of Mumbai being shut down due to the death of Shiv Sena supremo Bal Thackeray. This led to the following an arrest. The Indian Constitution is the supreme law in India. It lays down basic fundamental rights which are not suppose to be abrogated or suspended other than the exception laid down. Moreover, the piece of art clearly mentions the restrictions as well that can be applied to these freedom given to the citizens. Article 19 of the Constitution states that,
“Protection of certain rights regarding freedom of speech, etc.—
(1) All citizens shall have the right— (a) to freedom of speech and expression
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests 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 offense.”
The reasonable restriction doesn’t put a bar on expressing the views or opinions about something which a citizen doesn’t feel right about or is facing difficulty and needs government attention. The opinion which is defamatory or against the interest of sovereignty is barred from expression. The situation in India is becoming worse, speaking against a political leader or politics amounts to the arrest of a citizen. But is the law to blame? Or the lawmakers who make such laws? or implementation who prejudice with their powers?
I personally believe that Section 66A is not in derogation with the fundamental rights enshrined in the constitution. Both are laws and are made in peace with each other, the conflict is within the authority who is given the power to exercise law. Moreover, the act of judiciary in striking down Section 66A seems absurd as the reasons were given by the bench clearly states that there has been a continuous contempt of misuse by the police authority in arresting of person.
Therefore, it’s not the law in fault but the exercising power that is in fault. Ignoring their contempt on the preface of violating the fundamental rights of the citizen is clearly malfunctioning of the judiciary. When the law was passed by the parliament, it would have been under their scrutiny to look into if there might have been any violation of fundamental rights but as the section was passed standstill is an indicator that no such violation is interpreted through the law itself. It is the police in fault who under the glimpse of this section misusing their authority and violating fundamental rights of the citizen and striking down the section will not stop them anyway. It has been reported, after scraping off the section still, there are arrest under this section and shockingly even more.
The National Crime Bureau Record(NCBR) reports 3,137 arrests under the section in 2015 against 2,423 the previous year. How has striking down the section helped remove the violation of fundamental right? It is ironical, laws are made, judgments are passed, but when it is implemented it’s whole a different story. No one regulates what the problem is but all want to end it with a solution not even linked with the problem. This is absurd and not the law.
Freedom of Expression is our fundamental right. Agreed! Reasonable restrictions are there to help us guide. Agreed! In case of violation, police have the right to arrest. Agreed! Misuse of power is where the problem is! Then why such misery? The judiciary has taken a toll over cyber law by striking down the section. There are people who actually need help and need to be
arrested for violating cyber law but are safe as they won’t get arrested anyway. The police authority has to be put in place and not the law which is sidelined for it. There should be freedom of expression and there is otherwise people like Hasan Minhaj would be arrested for expressing views in public through its show patriot act but are not. It’s not because the section has been struck down but due to the difference between expressing opinions and derogatory statements. And the interpreters are the one who has to draw that line between the two. Neither should the law or the fundamental rights should have taken a toll in this but evidently, that is what the scenario is. Will India become error-free India ever?