By Geetartha Pathak
The Supreme Court recently quashed Article 66(A) of the Information Technology Act which it said was a sweeping law that allowed police to jail people for online posts thought to be offensive, with potentially far-reaching consequences for civil liberties and the right to free speech in India. After three years of protests by free speech campaigners and others, a bench comprising justices J. Chelameswar and Rohinton F. Nariman held the section 66A of the Information Technology (IT) Act, 2000, to be unconstitutional. The judges added that the public’s right to know is directly affected by section 66A. The apex court ruled that the controversial section 66A is “open ended, undefined, and vague” with every expression used in it “nebulous in meaning”. “Section 66A is cast so widely that virtually any opinion on any subject would be covered by it, as any serious opinion dissenting with the mores of the day would be caught within its net,” the court said.
So if on the one hand, the revolution in information technology has widened the scope of knowledge and dissemination of information, on the other a section of ‘powerful’ politicians has sought to negate it by various means.
Before the quashing of the above sections of the IT Act a class XI boy of Bareilly, Uttar Pradesh was arrested for forwarding an “objectionable” post on Facebook against the State’s Urban Development Minister Azam Khan. This had attracted widespread reaction from across the country. The arrest was made under section 66 of Information Technology Act and section 153A (promoting enmity between different groups on grounds of religion, race, etc.), 504 (intentional insult with intent to provoke breach of peace) and 505 (public mischief) of the IPC. The incident went viral on the social media, triggered anger and critical remarks against both the Minister and the UP police. The comments posted were coarser than the original post of the boy, ignoring the consequences they might have to face.
Growing intolerance among the powers-that-be is sadly becoming a routine affair. Earlier, on March 5, on a complaint by Fasahat Ali, Azam Khan’s self-styled ‘media in-charge’, the district police had lodged an FIR against Ravinder Kumar Mishra, a tourism officer from Varanasi for uploading “objectionable pictures” of UP Chief Minister Akhilesh Yadav, SP supremo Mulayam Singh Yadav and Azam Khan on WhatsApp and other social networking sites. He was booked under similar sections of the Acts. In 2013, Dalit writer and social activist Kanwal Bharti was similarly arrested by Rampur police for a Facebook post against Khan. He too, was booked under section 66-A of the IT Act
Ironically, Khan himself has in the past made many comments that were seen as an intentional insult to a particular religious group. Recall these provoked a breach of peace during the last Lok Sabha elections. Then there was his comment on Kargil which led to public outrage. Add to these the allegations that he had a role in the Muzzafarnagar riots and records of his derogatory comments against former Prime Minister Rajiv Gandhi, his brother Sanjay Gandhi and of course Narendra Modi. He also allegedly called ‘Bharat Mata’ a witch in the past. Not to speak of his misuse of Government machinery by deploying over 100 policemen with sniffer dogs to search for missing buffaloes!
It appears that the politicians of our country give themselves an absolute right to pass any comment against a person, a religious section or a group of people, however provocative it may be. Recall, Union Minister Sadhvi Niranjan Jyoti’s communal remark “Ramzade Vs Haramzade’ which led to an uproar Parliament and she eventually had to express regret. If one looks at the Facebook posts of Dr Subramaniam Swamy, one may easily find controversial contents, enough to attract the provisions of law including section 66A of the IT Act. On a recent visit to Assam, recently, he stated that mosques are places of prayer made out of bricks and cement only and can be demolished by the Government! The comment was widely decried by the people of Assam. Also let us take the case of JD (U) Sharad Yadav, who having made a sexist remark in Parliament against women, remained unfazed even when it was condemned by all. Remember, SP supremo Mulayam Singh Yadav’s bid to defend rape by publicly stating that ‘boys behave like boys’.
While the politicians seem to simply get away, the common citizen pays a heavy price. One of the first cases was in 2012. Two girls from Palghar in Maharashtra were arrested under Section 66 A of the IT Act for posting questions as to why Mumbai should come to a halt after the death of Shiv Sena Supremo Bal Thackeray. In Puducherry, the police arrested a businessman Ravi Srinivasan under Section 66A of IT Act, for allegedly launching a smear campaign against then Home Minister P Chidambaram and his son Karthik Chidambaram through Twitter.
Fortunately, while the student from Bareilly was granted bail by the additional chief judicial magistrate he would still have to face the long process of litigation. It is a matter of great courage for Shreya Singal, a law student and other NGOs to have petitioned the Supreme Court seeking quashing of Section 66 A of IT act. These were filed after the two girls in Maharashtra were arrested.
It needs to be noted that since the words “objectionable”, “offensive”, “derogatory” are not defined, the section 66A of IT Act can be used by anyone claiming that a particular comment of a person on any social media site is objectionable or offensive etc. On February 26 this year, the Supreme Court had reserved its order on pleas of challenging the validity of Section 66A of the IT Act. The Fundamental Right to Freedom of Speech and Expression guaranteed under Article 19(1) (a) of the Constitution is under question. While it can be subjected to reasonable restriction as provided under Article 19(2) of the same, it cannot be throttled. Thankfully the apex court has given a very enlightened judgement by quashing 66 (A) of the IT Act.
A moot point is that postings on Facebook are private communication within a limited group and therefore these should not be treated as public. Moreover, the Government can request the service providers to remove or disable the controversial contents from any social media. During July-December last year, Facebook blocked 5,832 pieces of content, including anti-religious matter and hate speeches, on orders of the Central Government– the highest by any country on the social networking platform. If it is so, why then does the Government need special provisions to punish a person for his/her comments?
Undeniably, social media has broken the barrier created by monopolized traditional media in disseminating information and building public opinion. Today, individuals can instantly reach a large audience by simply posting their views on a particular issue. Major political parties too have taken advantage of the social media. It was widely used by them during the last parliamentary and State Assembly elections. However, a section of the same politicians are now trying to try to fetter people from using it.
It should be kept in mind that even the traditional media realizes the power of social media and is using it to reach out to the people. Instead of restrictions, the Government should encourage people to speak out their heart so that it and political parties are aware of ground realities and understand the peoples’ mood. Knowing the peoples’ pulse is a prerequisite of a political outfit to win the support of the masses. And, social media can be its tool. At the same time, the Right to freedom of speech and expression is non-negotiable. It must be upheld and the Government be stopped from playing truant with it. –INFA