Cyber experts cautiously welcomed guidelines to regulate registration of offences under section 66-A of the Information Technology Act, saying they were at best "cosmetic action". The guidelines stipulate no offence under the section can be registered without prior approval of an officer below the rank of a deputy commissioner of police (in non-metros and rural areas) or rank of inspector general (in metros).
The decision to introduce a layer of approval by a top police officer was taken at a meeting held by the Central Cyber Regulations Advisory committee on Wednesday. The statutory committee, said a senior lawyer in Delhi, was set up in 2000 when the Information Technology Act was originally enacted, but has rarely met.
Advocate Pavan Duggal, Delhi-based cyber law expert, said the guidelines "though welcome, are merely a reactive response. What needs to be changed is the definition of offence under section 66-A". "Prior approval brings checks against misuse of law," said another lawyer, but Duggal added "unless the scope of the section is narrowed down, it may still be open to abuse."
N S Nappinai, a cyber law expert said, ''The remedy is to split section 66A into three separate offences, and what amounts to "offensive" or "malicious" nature should be specifically defined." The section is applied in eight of every 10 cases, said experts. "Even senior officers, whose permission will now be needed, need strong illustrative guidelines to refer to, which are absent," said cyber expert Vijay Mukhi.
Duggal said, "A complete review is required and it must be brought in sync with reasonable restrictions contemplated under Article 19 (freedom of speech) and not just subjective and discriminatory restrictions." A person calling another a "donkey" and mailing it to two persons can at present be booked under section 66-A if it causes "annoyance" to someone and sending it "twice" can be interpreted to be "persistent communication." Under IPC's section 294, uttering 'obscene' words in a public place to the annoyance of a person attracts three months of jail, the same offence online, under section 66A gets a three-year jail term.
The section was applied recently to a Pondicherry based businessperson who sent an "offensive and annoyance-causing" tweet against the son of Union finance minister P Chidambaram. The offender was arrested and later released on bail. As in the case when a cartoon on West Bengal chief minister Mamata Banerjee landed its sender in jail, section 66-A is a potent tool in the hands of the powerful and police, said a Delhi lawyer.
It appears to be substantially drawn from a British law, but has wider scope. "Legislators must take lessons from extensive abuse of such provisions not only in India but also at its place of origin," said Nappinai. However, UK courts took a proactive stance as in the Paul Chambers vs Director of Public Prosecutions case, holding tweets about terrorizing/blowing up airports were not "menacing" but only jokes.
"While protagonists of those 'menacing' tweets got lucky in the UK, FB posts by two Palghar girls landed them in a spot. The new norms may prevent similar humiliation for others," she said.
Fighting for free speech: 'Law needs overhaul, not cosmetic job'
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Fighting for free speech: 'Law needs overhaul, not cosmetic job'
