As posted by Biju Janata Dal Lok Sabha MP Jay Panda on Facebook
Is freedom of speech, guaranteed under the Indian constitution (albeit with some "reasonable restrictions") being whittled away in India? Many of us think so, and have seen the use of both antiquated laws (such as on sedition) to arrest a political cartoonist, and even new ones (most notoriously section 66A of the IT Act, which has been used to arrest two girls among others for voicing their opinions online). This has generated a lot of attention, and there is now a growing chorus for repeal/amendment of section 66A.
Earlier this week 9 MPs cutting across party lines, including myself, filed a demand in the Lok Sabha for a discussion on freedom of speech (including but not limited to section 66A). Today the Supreme Court has admitted a Public Interest Litigation against 66A. Additionally, I have today filed a Private Member's Bill to amend 66A. This bill will take a long time to get listed (not earlier than the budget session of Parliament in February/March), but if by then there has been no relief from the courts or government, it can hopefully provide the next window to challenge it.
Draft : Information Technology (Amendment) Bill, 2012 – To amend Section 66A
By Baijayant ‘Jay’ Panda, M.P.
Statement of Objects and Reasons
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
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.
Hence, this Bill.
Baijayant ‘Jay’ Panda
Existing Section 66A under the Information Technology Act, 2000
Extract from the Information Technology Act, 2000
* * *
66A. Any person who sends, by means of a computer resource or a communication device,—
- any information that is grossly offensive or has menacing character; or
- any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device; or
- any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three years and with fine.
Explanation: For the purposes of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.
* * *
The Information Technology (Amendment) Bill, 2012
Shri Baijayant ‘Jay’ Panda, M.P.
A BILL further to amend the Information Technology Act, 2000.
BE it enacted by Parliament in the Sixty-third Year of the Republic of India as follows:—
1. This Act may be called the Information Technology (Amendment) Act, 2012.
2. In section 2 of the Information Technology Act, 2000 (hereinafter referred to as the principal Act),-
(A) after clause (h), the following clause shall be inserted, namely:-
‘(haa) “Commercial electronic message” means an electronic message the primary purpose of which is the advertisement or promotion of a product or service;’
(B) after clause (s), the following shall be inserted, namely:-
‘(sa) “electronic message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message;’
(C) after clause (zg), the following shall be inserted, namely:-
‘(zga) “unsolicited” means that the addressee or recipient did not request to receive the electronic message or did not consent to the receipt of the electronic message;’;
3. For section 66A of the principal Act, the following section shall be substituted, namely:-
“66A. Any person who sends, by means of a computer resource or a communication device,-
- any unsolicited commercial electronic message; or
- any commercial electronic message where the the identity of the person on whose behalf the communication has been sent has been disguised or concealed, or where a valid address to which the recipient of the communication may send a request that such communications cease has not been provided,
shall be liable to a penalty not exceeding one crore rupees.”