Draconian IT Act in need of amendment

By Aaliya Khan

“With all respect, every day, thousands of people die, but the world moves on. Just due to one politician dying a natural death, everyone just gone bonkers. They should know, we are resilient by force, not by choice. When was the last time anyone showed some respect or even a two-minute silence for Shaheed Bhagat Singh, Azad, Sukhdev or any of the people because of whom we are free Indians?  Respect is earned, given, and definitely not forced. Today, Mumbai shuts down due to fear, not due to respect,” wrote Shaheen, a 21-year-old student from Palghar, Thane, on her Facebook page. Within minutes she got a call from Shiv Sainiks to remove the post and hours later she was arrested by the police under the IT Act while her uncle’s hospital was vandalised and equipment worth crores therein were destroyed. Sainiks were seen on news channels telling reporters that had she begged forgiveness before a photograph of Thackrey, they would have spared her. An inspection of the IT Act, 2000 reveals legal loopholes, like Section 66A of the Act that got Shaheen and her friend Rini who “liked” what her friend wrote, in jail.

According to Pavan Duggal, cyber law expert and advocate at Supreme Court of India, primarily section 66A is for protecting reputation and preventing misuse of its own.

“It is so vast….[it] gives a tremendous handle in the hands of the complainant and the police to target anyone. Further, if you send any information through email or sms, which aims to mislead the addressee, such mail or message is a crime. All this suddenly opens a Pandora’s box of offences,” he said.

Snehashish Ghosh of the Centre for Internet and Society, holds the borrowed language used in Section 66A from Section 127 of the UK Communication Act, 2003 and the Malicious Communications Act, 1988 as the flaw in the Act. “These two particular provisions are applicable in cases where the communication is directed to a particular person. Section 1 of the Malicious Prosecution Act begins with “any person who sends to another person” and hence it is clear that the provision does not include any post or electronic communication which is broadcasted to the world but it deals with only one-to-one communication,” said Ghosh.

Section 127 deals with “improper use of public electronic communications network”. It was meant to prevent misuse of public communication services. Therefore, social media and websites do not fall under its ambit. However, Section 66A in its current form fails to define any specific category and this has led to inconsistent and arbitrary use of the provision, Ghosh added.

“In the case of 66A, interpreting it to include any form of communication transmitted using computer resource or communication device renders it to be absurd and arbitrary. Therefore, it should be interpreted and made applicable only to communications between two parties,” he concluded.

This article appeared in The Milli Gazette print issue of 1-15 February 2013 on page no. 11

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