Andhra FB case underscores 66A misuse

BY Madabhushi Sridhar| IN Media Freedom | 18/05/2013
Under Section 66A of the IT Act, critical comments on cyberspace are inviting penal action, even arrest.
MADABHUSHI SRIDHAR says this gives police draconian powers that violate freedom of speech. PIX: Change.org

The draconian power of Section 66A of Information Technology Act 2000 as amended in 2008 is gradually being revealed. An Andhra Pradesh MLA from Chirala (Prakasham District) Amanchi Krishna Mohan used it to stifle the voice of civil rights leader Jaya Vindhyala: he got her arrested under this section using his clout with police officials. Tomorrow its victims could be political opponents and also media.

Jaya Vindhyala, a civil rights activist of PUCL, was critical on Facebook about the political activities of the local MLA. Shreya Singhal, who challenged the constitutionality of this section, filed a fresh application in the Supreme Court pointing out that the Facebook timeline includes her “petitions submitted under the RTI Act, the PUCL fact-finding committee’s reports, a legal notice sent by the MLA’s counsel, and her reply to it.” 

 

The Supreme Court rightly advised the state against stifling the voices of people through this new weapon. Some of Vindhyala’s comments against Tamil Nadu Governor K Rosaiah, who earlier represented Chirala constituency in the AP Assembly, were also cited by the Chirala legislator in his complaint. He alleged that such comments caused “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will” to him and the TN Governor. Interestingly, the Governor is not a complainant in this case. 

 

If what Vindhyala wrote is defamatory and thus objectionable, there can be a criminal complaint for defamation. Then Jaya will have the defence of truth and fair comment as provided in Section 499 of the IPC. Section 66A does not allow any such defence. It has an inherent capacity of being misused by persons in high offices against powerless ordinary persons.  

An earlier incident, the arrest of two girls Shaheen Dadha and her friend Renu Srinivasan, for a comment posted on Facebook questioning the shutdown of Mumbai after the demise of Shiv Sena founder Bal Thackeray, raised the flag on the abusive power of this section. The government considered their comments as ‘unwarranted’, ‘hasty’ and ‘cannot be justified’. The ministry defended it in response to a PIL against Section 66A saying the Thane police SP (Rural) has been suspended for arresting the two girls despite an instruction by the IGP not to do so.

Earlier instances of arrest are equally worrying: 1. Sanjay Chaudhary for posting ‘objectionable comments and caricatures’ of Prime Minister Manmohan Singh, Union minister Kapil Sibal and Samajwadi Party president Mulayam Singh Yadav on his Facebook wall. 2. Manoj Oswal for having caused ‘inconvenience’ to relatives of Nationalist Congress Party chief Sharad Pawar for allegations made on his website; 3. Jadavpur University Professor Ambikesh Mahapatra for a political cartoon about West Bengal Chief Minister Mamata Banerjee; 4. Businessman Ravi Srinivasan in Puducherry for an allegedly defamatory tweet against the son of Union Finance Minister P Chidambaram; 5. Two Air India employees, who were jailed for 12 days for allegedly defamatory remarks on Facebook and Orkut against a trade union leader and a politician; 6. Aseem Trivedi, accused of violation of the IT Act for drawing cartoons lampooning Parliament and the Constitution to depict its ineffectiveness. These are all ordinary persons. Had they been from media, journalist organisations would have agitated against this misuse.

Section 66A differentiates citizens from netizens and is very harsh on the later. The freedom generally guaranteed under Article 19(1)(a) to citizens including general media now is curbed as far as netizens are concerned. If netizens make comments which could be made generally by citizens, they can be arrested. This is where Article 14 is also violated. With every newspaper being posted on websites and TV programs linked to Youtube, the difference between citizen and netizen is almost blurred and every citizen can be in the line of fire.

When Justice Markandeya Katju and media critics made more severe comments than those of the Maharashtra girls, they were rightly not arrested. While general criticism is protected under Article 19, why should the same on cyberspace lead to immediate arrest? If a critic defamed a minister, the latter has a right to file a criminal or civil defamation case, for which arrest is not necessary. Criminal defamation is a lesser offence with maximum of two years imprisonment prescribed under Section 500 IPC.  But under the IT Act, the same could be punished with three years imprisonment and a huge fine. As per the amended law of arrest, the police need not arrest accused who are charged with offences punishable with less than seven years of imprisonment – unless the police officer considers the accused could cause further serious damage or for any other recorded reason.

Madabhushi Sridhar is Coordinator, Center for Media Law & Public Policy, NALSAR University of Law, Hyderabad

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