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The death of section 66A of the IT Act…. does it change anything?

4 min read

Section 66A of the Information Technology Act (IT Act) was much debated (and hated) primarily because it was seen as being against “freedom of speech” and also because it used “vague” words like grossly offensive, menacing character, etc.

This section was not part of the original IT Act that came into force in 2000. It was added in 2009.

In the last few years, this section was used in many controversial cases including the April 2012 arrest of a Chemistry professor at Jadavpur University for forwarding a cartoon featuring the West Bengal CM Mamata Banerjee.

A month later, two Air India cabin crew members were arrested and jailed for 12 days for posting “derogatory” remarks against the Prime Minister’s Office, the national flag and the Supreme Court, while commenting on a strike by Air India pilots.

Later that year, two girls were arrested over a Facebook post questioning the shutdown in Mumbai for Shiv Sena patriarch Bal Thackeray’s funeral. This arrest led a nation-wide protest and prompted a law student to file a public interest litigation challenging the constitutional validity of section 66A.

On 9th January, 2013, the Central Government issued an advisory to the effect that an arrest under section 66A must be first approved by an officer of the rank of the Inspector General, Deputy Commissioner or Superintendent of Police.

On 24th March, 2015, the Supreme Court, in a 122 page judgement, struck down section 66A in its entirety for violating the fundamental right of speech and expression.

Before you bring out the champagne to celebrate the death of section 66A, have a quick peek at some of the other similar laws that are still alive and kicking.

Section 505 of the Indian Penal Code (IPC) has been around for more than 150 years (since 1860 actually) and its wordings are more “vague” than 66A.

Section 505 of the IPC relates to “public mischief” and penalizes the making, publishing or circulation of statements, rumors or reports likely to cause “fear” or “alarm” to the public.

It also penalizes statements that are likely to incite, “any class or community of persons to commit any offence against any other class or community”.

It also penalizes statements containing “rumor or alarming news which is likely to create or promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities”.

The punishment – 3 years jail and / or fine. And it’s non-bailable and cognizable. This means that you can be arrested without a warrant and bail is NOT a matter of right. In comparison, the much maligned section 66A was bailable. This means that bail was a matter of right !

Section 506 of the IPC provides a punishment of 2 years jail and/or fine for criminal intimidation, which involves threatening to injure a person, his property or his reputation. If criminal intimidation involves imputing “unchastity” to a woman the punishment goes up to 7 years jail and/or fine. A facebook post calling a woman a prostitute or commenting upon her losing her virginity would be covered under this.

Section 507 of the IPC penalizes criminal intimidation by “anonymous communication” or a communication where the name or address of the communicator is concealed. The punishment under this section is 2 years jail.

A post from a facebook or e-mail account opened in a fictitious name would be covered by this. Other examples of anonymous communication include posts on a public forum without disclosing your identity, content on a website whose domain was booked using false identity, blogging and tweeting under fake names (Beware Alia Bhatt haters).

If the anonymous communication relates to imputing unchastity to a woman, the punishment would be 9 years and/or fine. This is because in such cases sections 506 and 507 of IPC would both apply.

Section 509 of IPC provides a punishment of 1 year jail and/or fine for insulting the modesty of a woman or intruding upon her privacy.

IPC also penalizes the offence of defamation, which basically means harming the reputation of a person, or lowering his moral or intellectual character or lowering his character in respect of his caste or profession (calling us lawyers as sharks could land you in prison) or causing it to be believed that his body is in a “lothsome” state. Calling someone “fat” or “ugly” or an “idiot” could land you in jail.

Many people do not know that even a dead person could be “defamed”, if the feelings of the dead person’s family or near relatives are hurt. By the way, it’s not just individuals who can be defamed – even companies, organizations, groups of people etc. can be defamed.

Even alternative, ironical or sarcastic statements may amount to defamation. (Be careful AIB). The punishment for defamation is 2 years jail and/or fine.

Section 124 A of the IPC penalizes the offence of sedition which relates to bringing into “hatred or contempt” the Government. It also includes attempts to “excite disaffection” towards the Government in India. The punishment for this – imprisonment for life!!

And unlike what’s usually shown in Hindi movies, life imprisonment is not 14 years jail, it’s imprisonment for life. The Government has an option to commute this to 14 years.

Section 295A of the IPC penalizes statements that insult religious beliefs. The punishment is jail upto 2 years and / or fine. In many such cases section 298 of the IPC may also apply. This section provides jail upto 1 year and / or fine.

I think that in the next few years many sections of the IPC will gain notoriety like 66A did. Maybe it’s better if the Government reviews these sections before another public interest litigation is filed.


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