Why Section 66 A of the must be scrapped by the apex court.

            The recent arrest of Shaheen Dhada and Renu Srinivasan, in Mumbai, for expressing their dissent over the shutting down of normal activity in the metropolis has provoked anger. While the police action has given rise to a demand that Section 66 A of The Information Technology Act, 2000, is scrapped forthwith, there is a view that it is sufficient to qualify the section with adequate checks against its indiscriminate use. Those arguing for a mere qualification and opposed to the scrapping the section outright rest their case on the manner in which Section 124A of the Indian Penal Code was defined as Constitutional by the Supreme Court in the Kedarnath case.

            It is idle to argue, on this day, that Section 124A is not abused. Binayak Sen, apart from hundreds of poor adivasis, whose only crime is that they stand up in defence of the Constitutional scheme as outlined in the Fifth Schedule, are facing charges under this law. And so are many hundreds of our citizens in Idinthakarai in Tamil Nadu and elsewhere. All these are happening even after the Supreme Court laid down the extant of Section 124A as early as in 1961: That the law shall apply only where an expression is clearly intended to, or having the tendency, to create disorder or disturbance of public peace by resort to violence. That Dr.Sen obtained bail, after a couple of years in the Raipur jail while the several hundred poor and patriotic men and women are still in jail should convince that draconian laws must be scrapped forthwith than qualified.

            Section 66A of the IT Act, 2000, incidentally was an afterthought (and inserted into the act by an amendment in December 2008). This was also the case with Section 124A of the IPC. A provision to this effect was there in the IPC as proposed in 1860 but Lord Macaulay argued against it. He had succeeded too. However, it was inserted into the code only a decade after the Code came into existence (by an amendment act in 1870) and invoked against Bal Gangadar Tilak and Mahatma Gandhi by the British administration. And even after Kedarnath Singh was acquitted in 1962, abuse of the provision continues to be the norm until now.

            Section 66A of the IT Act, meanwhile, does not belong to the same class as Section 124A of the IPC which is archaic and brought in by the colonial regime then under siege. The 2008 amendment to criminalise dissent in the virtual domain was enacted by those who are known to celebrate the advances in the IT sector as the greatest liberating tool in the history of modern democracy. Those at the helm in our times are indeed fans of Thomas Friedman’s conclusion that the world wide web has rendered the world flat. In his celebrated book, brought out in 2005, Friedman argues, without much depth, that this process of flattening had rendered the world into a democracy more than any other development of the past.

            Even if one considers Friedman’s work as bereft of analysis, the fact is that the majority in Parliament that passed the 2008 amendment to the IT Act are known to celebrate the work and its conclusion. Manmohan Singh and his colleagues, as much as a majority in the opposition are strong votaries of the ICT revolution has strengthened democracy position and that the world is far freer than it was. And yet, if Section 66A was inserted, which criminalized any act of sending messages through the internet that is `grossly offensive’ or `has menacing character’, was inserted into the act, the intention was clearly to curb dissent.

The legislators were not innocent of the purpose too given the timing of its passage. In the couple of years after 2005, when different State Governments signed MoUs with miners (both national and foreign), the internet was indeed facilitating spread of specific information regarding the drain of our natural resources. And that was also the time when P.Chidambaram had decided to unleash the Greyhounds and the Scorpions in a war against the people of India. Section 66A was indeed meant to hound those who campaigned, using the internet (when the space for such campaigns had shrunk in the mainstream print and TV media), against the deals that were struck in clear violation of the Fifth Schedule of the Constitution.

Given this context, it is only proper that the provision is scrapped; not just qualified and its use restricted by checks and balance. To expect the elected representatives do that is like waiting for godot. The only option left, hence, will be a judicial decision striking down the provision. The apex court, in the past, has expanded the scope of many of the human rights by interpreting laws as well as by annulling decisions by Parliament and the Executive and helped in making the world a better place for the poor. And it is not necessary that someone goes to the apex court with an appeal. We have had judges who took up cases suo mottu to do that. Justice Altamas Kabir may decide to do that and strengthen the democracy and ensure that the Republic lasts.