Brief: Section 66A of the Information Technology Act

 Section 66A is one such provision which has frequently been used by the State as well as the vast class of offended persons who resort to it when remarks are made against them. The problem with Section 66A is that it is so broadly framed that the remarks do not even need to be libelous for it to be attracted. It reads as follows:

66A. Punishment for sending offensive messages through communication service, etc..- Any person who sends, by means of a computer resource or a communication device,-(a) any information that is grossly offensive or has menacing character; or(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages shall be punishable with imprisonment for a term which may extend to tthree years and with fine.Explanation: For the purposes of this section, terms “Electronic mail” and “Electronic Mail Message” means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.

Use of Section 66A

Some recent incidents where Section 66A has been applied include:

1.  Professor in Kolkata: Jadavpur University professor Ambikesh Mohapatra, was arrested in April, 2011 for posting a cartoon on West Bengal chief minister Mamata Banerjee on the internet. Ambikesh Mohapatra was charged under under 66A of the Information Technology Act, 2000; under Section 500 (defamation); 509 (insulting the modesty of a woman through word, gesture or act) and u/s114 (presence of abettor at the time of commission of offence
2. Aseem Trivedi and Cartoons Against Corruption: Aseem Trivedi was arrested in September, 2012 following a complaint filed against the cartoons authored by him which depicted national symbols in cartoons questioning corruption. Though the specific cartoon in the police complaint on which the arrest was made are not specified, his cartoons can still be accessed on his facebook page. Based on this Aseem was charged under of section 66A of the Information Technology Act, 2000; 124A of the Indian Penal Code, 1860 (sedition); under Prevention of Insults of National Honour Act, 1971.
3. Heena Bakshi post on Chandigrah Traffic Police Webpage: After Heena Bakshi’s car was stolen due to alleged harassment she wrote a post on the facebook page of the Chandigarh Traffic Police. The posted contained expletives, though they were not directed on the police directly. Heena Bakshi was booked under Section 66A and Section 67 of the Information Technology Act, 2000.
4. Ravi Srinivasan -  IAC volunteer was charged under 66A of IT Act, an offence, for which he can be fined and jailed upto 3 years—- And all this for sending a tweet to 16 followers— “got reports that karthick chidambaram has amassed more wealth than vadra.”

Problems with 66A

• Sec. 66A & Article 19(2): The freedom of speech and expression is a fundamental right contained under Article 19(1)(a) which is subject to the “reasonable restrictions” contained within Article 19(2). Towards this, Sec. 66A of the Information Technology Act, 2000 contains broad phrases which will not fall within the reasonable restrictions as contained under Article 19(2). The phrases include under, Sec. 66A(1) “grossly offensive” and “menacing character”; Sec. 66A(2) “annoyance, inconvenience..”; and Sec. 66A(3), “purpose of causing annoyance or inconvenience”.
• Vagueness Offences under Sec. 66A: The phrases contained under Sec.66A do not find definition through the Information Technology Act, 2000 or do not have analogous provisions under other laws. Due to the absence of any definitions of “grossly offensive” or “menacing character”, the offences under it are without any limitation. In as much due to the vague phrasing the act is vulnerable for arbitrary use.
• Duplicity of Offence under Sec. 66A: The offences under 66A result in a duplication of offences which are contained under existing penal laws which are adequate to check the commission of crimes and also contain legislative and judicially defined limitations.
• Offence under Sec. 66A applies only to online speech: This presents a problematic outcome where the same speech may be legal offline but may be illegal online. This has the tendency to place an unreasonable restraint on a medium without a valid differentia or purpose.
• Lack of clarity in Sec. 66A: The Sec. 66A does not contain one offence, but contains any possible offence for uploaded content. The Sec. 66A lacks any coherence and structure as to the commission of a single offence. Due to this lack of clarity it does not contain any definite elements of an offence which are specified in its clauses. This is most noticeable in Sec. 66A(2), which contains a list of distinct grounds under which the section can be attracted. Most of the grounds are not even specified for instance, “annoyance” or “inconvenience” does not contain any ingredients.
• Offence under Sec. 66A is cognizable: Another anomalous position is presented as the punishment which is prescribed under Sec. 66A is a term of imprisonment for 3 years. This makes it cognizable and non-bailable. Hence with the application of 66A the accussed may fear arrest and the police seeking their custody.
• Offence under Sec. 66A increases jail terms for existing offences: In addition to duplication of existing offence, Sec. 66A increases the jail terms excessively of existing offences.