If everybody who ever offended anybody — intentionally or otherwise — is to be locked up, then half the country would be behind bars. It is astonishing, therefore, that provisions in the law which mandate precisely such an outcome for offending someone — without, moreover, even defining what exactly is meant by the term ‘offence’ — continue to exist on the statute books. And it is downright inconceivable that Central governments, which are sworn to uphold the Constitution which includes freedom of expression as a fundamental right, will actually battle hard to retain such provisions. Yet, this is precisely what is happening, with the Centre fighting a batch of petitions in the Supreme Court which have challenged the constitutional validity of sections of the Information Technology Act, 2000, specifically Section 66A. This section, introduced by an amendment in 2009, prescribes up to three years in prison for anyone found guilty of causing “annoyance or inconvenience” to anyone through the Internet, or sending “offensive” messages through any information technology device such as a computer, tablet or mobile phone.
During the hearings, the Supreme Court bench has rightly observed that the term 'offensive' was both vague and subjective. The government’s argument, that the intent of the law was to combat cyber crime and not curb free speech, does not wash in the face of the way the provision has actually been used. Schoolgirls have been arrested for complaining on Facebook about Mumbai’s forcible shutdown for Bal Thackeray’s funeral; Mamata’s Banerjee’s police used it to lock up a cartoonist who dared to lampoon the leader; a couple of Air India employees were prosecuted for making fun of politicians in a social media group; a Bengaluru couple charged for complaining against the police on the police’s own Facebook page, and so on. The petitioners who have challenged Section 66A have contended — and justifiedly — that the provision offers a handy tool to curb freedom of speech, and is open to whimsical or malafide interpretation by law enforcement agencies, particularly the police, which is neither trained nor equipped to consider such matters.
Even if the Supreme Court were to hold Section 66A violative of the Constitution, the matter does not end there. We are a republic of easily hurt sentiments, and there are far too many provisions in the Penal Code which are not only open to misinterpretation, but have been actively misused to crush voices raised against the mainstream. While many such laws date back to colonial times, even a relatively modern law such as the Information Technology Act — parts of which are drawn from similar legislation in the West — suffers from poor drafting and a lack of awareness of ground realities, which has led to its widespread misinterpretation and active misuse, not least of all by government agencies. These need to be summarily reviewed and updated to ensure that the lines of “reasonable restrictions” on freedom of speech are firmly and unambiguously drawn.