The Section 66 (A) of the Indian IT Act continues to haunt the government. At a time when a public interest litigation has been filed in the Supreme court questioning the constitutional validity of the section, questions are also being raised about the need for such "draconian" section.
"Considering the potential and (recently) demonstrated abuse of Section 66A in contravention of freedom of speech, it may be worthwhile to explore a judicial review before arrests under Section 66A can be made...there is a need to review Section 66A holistically, keeping in mind the constitutional tenets and international conventions that we are a signatory to," Rajeev Chandrasekhar, Independent member of Parliament said.
"The misuse of Section 66A of Information Technology Act, 2000 (introduced by the 2008 amendment) has been raised at various instances. There is overwhelming evidence that there is misuse and discretionary interpretation," he added.
Even Telecom and IT Minister Kapil Sibal, earlier this week had accepted in the Parliament that some states had misused certain provision in the Information Technology Act. The Minister had recently said that if states misuse the section, aggrieved parties can approach the court. However, experts feel that is not going help the netizens.
“The main problem lies in 66 (A). It is like a can of worms. No approach is going to be any productive till the time you amend the IT Act and amend 66 (A) so that it is in sync with the constitutional limitations on free speech under article 90 of the Constitution,” said Pavan Duggal, Supreme Court Lawyer and Cyberlaw expert.
According to Apar Gupta, a Partner at law firm Advani & Co, many of the provisions under Section 66 (B) are confusing because they contain terms which are finding appearance on the statue books, first time. “Since these terms are new and they are not defined, they become ambiguous and subject to personal interpretation of the police officers for registering FIR,” he adds.
The most practical solution to get rid of some of these problems, says experts, is to make another amend Section 66 of the IT Act.
It is not the Section 66 (A) of the IT Act alone which has been criticized in the recent past of its 'draconian’ provisions made to the arrests of few netizens including those in Mumbai in recent past.
In 2004 the police had adopted a similar approach while interpreting the provisions of Section 79 of the IT Act 2000 to arrest the CEO of Bazee.com in the DPS MMS case. It was because the reading of the section then was that unless and otherwise proved that they have taken due care to prevent pornographic material from being uploaded and sold in their websites, the intermediaries will be held responsible. Since they were not able to prove to the police that they had taken all due care to prevent this.
Only after much clamour from the civil society, the government issued an amendment bill in 2006 to correct the lacuna. However while trying to correct those, the bill which finally saw the light of the day in the forms of amendments in 2008 created more confusion than clarifying it.
In fact, the present section 66 (A) was introduced by the 2008 amendments. “It was criticized at that stage as being vague and having wide interpretation, but the government failed to correct the anomaly when it issued various clarificatory rules and guidelines under the IT Act 2008. The result is before all of us today. There is more confusion than clarification and contextual terms in section 66 such as ‘offensive’ and ‘menacing’ that are being widely interpreted to the wimps and fantasies and convenience of local policemen,” said Salman Warris, a Cyberlaw expert attacked to a Delhi-based law firm.
Experts say that much of the confusion related to various sections of the IT Act have their roots to the origin of the Act itself. The Act was originally introduced as a Bill in 1999 to provide rules to contracting parties for conducting electronic commerce (e-commerce). It was only subsequently that a few penal provisions were added to the original draft to make do with situation and a Cyber law.
“It’s quite a departure from the original intention of the law. It was not supposed to have a separate chapter for offences and penalties, and towards describing content, control and offences for them,” said Gupta.
According to a government official, government is not looking at revising the existing law, though they are reviewing it. "The problem is not with the law but with the implementation of the laws."
Even though the IT Act in 2000 as it is originally stood had offences for publishing sexually explicit materials, it did not have a large body of offences which were inserted by the 2008 amendment Act. “The same mistake (they did in 2000) was repeated at the time of passing of the IT (Amendment) Act 2008. It was passed on the last day of the winter session without a debate along with several other legislations,” said Warris.
Other controversial sections of the IT Act
Other than the Section 66 (A), which is now the most debated and discussed section of the IT Act, there are other Sections in the Act which are open to interpretation and can be misused.
Section 80 of Indian IT Act
This is a draconian law that gives immense power to the Police. The law grants power to every police officer of the rank of Inspector to enter, search and arrest (in a public place without warrant) a person who has "either committed a cyber crime, committing a cyber crime or is about to commit a cyber crime. "
This is first time in Indian jurisprudence where an arrest can be made on the basis of intention to commit a crime depending on the discretion of the police officer.
The tenure of punishment once booked under the section could range between 3 years and life imprisonment, with a penalty of Rs 1-10 lakh. This Section was a part of the initial IT Act of 2000.
The implementation of the Act once gave rise to "cyber hafta" wherein police officers started charging hafta or protection money for not making arrests under the section.
Section 67 (B) of Indian IT Act
This makes accessing or browsing child pornography as an offense under section 67 (B) liable for 5 years of imprisonment and upto Rs 10 lakh fine. This section makes mere accessing child pornography as a punishable offense.
In today's digital world , unaware netizens are often directed towards sites which may have child pornography. By mere clicking on the site , a person can be liable for imprisonment and fine.
Besides, in India the definition of a child is anyone below the age of 18 years, which makes it very difficult to demarcate pornography from child pornography.
This is unparalleled in anywhere in the world. In the US, where the child pornography laws are most stringent, a person is only booked for transmitting or publishing child pornography in digital form.
This Section was introduced within the IT Act in 2008.
Source: Legal Experts