Voicing concern over recent incidents of people being arrested for posting alleged offensive

messages on websites, the Supreme Court today agreed to hear a PIL by a young law student
seeking amendment to the Information Technology Act and sought Attorney General G E
Vahanvati's help in deciding it.
A bench headed by Chief Justice Altamas Kabir said, "We were wondering why no one has
approached the Supreme Court (challenging the particular provision, Sec 66A of the IT Act.) and
even thought of taking up the issue suo moto."
Taking the case on urgent basis, the bench agreed to hear the PIL filed by a Delhi student Shreya
Singhal but refused her plea that no coercive action should be taken by the government authorities
against people for posting such messages on websites during pendency of the case.
The court posted the matter for further hearing tomorrow.
Shreya has contended in her plea that "the phraseology of Section 66A of the IT Act, 2000 is so wide
and vague and incapable of being judged on objective standards, that it is susceptible to wanton
abuse and hence falls foul of Article 14, 19 (1)(a) and Article 21 of the Constitution."
She has submitted that "unless there is judicial sanction as a prerequisite to the setting into motion
the criminal law with respect to freedom of speech and expression, the law as it stands is highly
susceptible to abuse and for muzzling free speech in the country."
The arrests which have been referred to by Shreya in her petition include that of a 21-year-old girl
Shaheen Dhada for questioning on Facebook the shutdown in Mumbai after Shiv Sena leader Bal
Thackeray's death, which was 'liked' and shared by her friend, Rinu Srinivasan, who was also
arrested.
Shreya has also referred to an April 2012 incident, when a professor of chemistry from Jadavpur
University in West Bengal, Ambikesh Mahapatra, was arrested for posting a cartoon concerning a
political figure(Bengal Chief Minister Mamata Banerjee) on social networking sites.
She has also referred to the arrest of businessman Ravi Srinivasan in October 2012 by the
Puducherry Police for having made an allegation on Twitter against a politician from Tamil Nadu as
well as the May 2012 arrests of two Air India employees, V Jaganatharao and Mayank Sharma, by
the Mumbai Police under the IT Act for posting content of Facebook and Orkut against a trade union
leader and some politicians.
Shreya in her plea has also sought issue of guidelines, by the apex court, to "reconcile section 41
and 156 (1) of the Criminal Procedure Code with Article 19 (1)(a) of the Constitution" and that
offences under the Indian penal Code and any other legislation if they involve the freedom of speech
and expression be treated as a non-cognizable offence for the purposes of Section 41 and Section
156 (1).
Section 41 of the CrPC empowers the police to arrest any person without an order from the
magistrate and without a warrant in the event that the offence involved is a cognizable offence.
Section 156 (1) empowers the investigation by the police into a cognizable offence without an order
of a magistrate.
While agreeing to hear the case, the bench said it was considering to take suo motu cognisance of
recent incidents of arrest of people.

Meanwhile, the government today issued guidelines that state approval from an officer of DCP level
at rural areas and IG level in metros will have to be sought before registering complaints under
section 66A of the IT Act

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Just as the new Prime Minister, Narendra Modi took charge, there were reports of an MBA student
interning at Bangalore, being arrested under section 66A of the Information Technology Act 2008,
for sending an anti-Modi MMS on WhatsApp. This was the second such case to be booked under the
section in 12 days; the first was when a man in Goa was arrested for posting an anti-Modi comment
on Facebook.
The Goa arrest was made on May 12th, before the election results were declared, while the Bangalore
arrest was made on May 24th. This raised questions on freedom of expression, satire, humour,
offense and hatred. Many Bangaloreans were worried as to whether their right to express on social
media has just been limited. In this backdrop, Citizen Matters explores the issue.
Offensive message through communication service
The Bangalore arrest was a result of a complaint lodged by an RTI activist, Jayant Mukund Tinaikar,
living in Belgaum district. In his complaint, Jayant alleged that he received an offensive message
against Modi on WhatsApp on May 16th.
This complaint was later sent to Bangalores Cyber Crime Branch for further investigation. The crime
branch found that the message originated from Sayed Waqar, an MBA student from Anjuman
Institute of Management in Bhatkal, Uttara Kannada district. Waqar was in Bangalore for a monthlong internship.
He was booked under Section 505 of the Indian Penal Code (IPC) for issuing statements amounting
to public mischief, with intent to cause fear or alarm and Section 66 of IT Act for sending offensive
messages through communication service.
This was not the first time where a person was arrested for raising his or her opinion on social
networking sites or apps. There have been several such cases in the past as well.

Cases booked under section 66 A of the IT Act

2000 in past

Other sections of IPC clubbed

with 66A

November 2011: Manoj Oswal - for

allegedly having caused inconvenience to
Section 500 of the IPC (defamation)
relatives of Nationalist Congress Party chief
Sharad Pawar for allegations made on his website.
April 2012: Jadavpur University Professor
Ambikesh Mahapatra - for a political
cartoon about West Bengal Chief Minister Mamata
Banerjee.

Section 500 (defamation), Section

509 (insulting the modesty of a
woman through word, gesture or act)
and section 114 (presence of abettor
at the time of commission of

offence)
October 2012: Ravi Srinivasan, an IAC
volunteer,for an allegedly defamatory tweet
against the son of Union Finance Minister P
Chidambaram
May 2012: Two Air India employees jailed for 12
days for allegedly posting defamatory remarks on
Facebook and Orkut against a trade union leader
and a politician.

Section 506(2) of the IPC and

Section 2 of the Prevention of
Insults to National Honour Act 1971

September 2012: Aseem Trivedi, accused of

violation of the IT Act for drawing cartoons
lampooning Parliament and the Constitution to
depict its ineffectiveness.

Section 124A of the IPC, Section

1860 (sedition) and the Prevention
of Insults of National Honour Act,
1971.

November 2012: Two young women, Shaheen

Dadha and her friend Renu Srinivasan, arrested
Section 295 (a) of the IPC (for
fora comment posted on Facebook that questioned
hurting religious sentiments)
the shutdown of Mumbai following the demise of
Shiv Sena Supremo Bal Thackeray.
In the seven years since the amendment of the IT Act, to incorporate Section 66A in 2008, it has
been heavily criticised for being unconstitutional and ambiguous. Most importantly, its violation of
the Article 19(1)(a) of the Constitution of India that guarantees freedom of speech and expression has
come under heavy criticism. Several Public Interest Litigations have been filed in this regard.
Nothing excluded!
Supreme Court advocate Pavan Duggal, a specialist in the field of cyber laws and a Panel Member at
Permanent Monitoring Panel for Information Security, jovially refers to the section 66 A as 'Mother
India' because its provisions are so vast and huge in ambit, that anything and everything can come
under it. Section 66 A puts ones neck under chopping block, he says.
The ambit of the phrase grossly offensive and menacing character goes beyond the constitution of
India, according to him.
He says the section gives unbridled, absolute powers and discretion in the hands of two entities: the
complainant and the police. At the time of registration of the case, as FIR depends on the
interpretation of the post by the complainant, on what is of grossly offensive or menacing character.
Experts have noticed distinctive pattern in the cases that are registered under this section. Pavan
says, Invalidly, it is used as a tool to perpetuate harassment in online activity. An activity which is
bonafidely done... Mostly the cases registered are by the rich and the powerful people. If a common
man tries to file a complaint, he may have to go through a lot of challenges.
Advocate Danish Sheikh who is working with Alternative Law Forum, and is an expert in laws related
to Free Speech and Homosexualitites (LGBT) says, Typically the cases booked under the section are
not against personal remarks, but were moreover against political comments. The basic idea of
democracy, which is free speech, is threatened by this section.

What is Section 66A of the IT act 2000?

The Information Technology Act 2000 was drafted in order to regularise the contents or documents
that are broadcasted via any communication medium like computer, internet, press etc. It has 92
sections. In particular, Section 66A was drafted to tackle the information that was being circulated
via any communication devices like mobile phones and computers.
The Act says, 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,
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 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 three years and with fine."
Experts of the of the IT Act have heavily criticised the section for having adopted from the UK
Communication Act 2003 and the Communications Act 1988. Both the acts are applicable only when
the communication is directed to a specific person.
Snehashish Ghosh, Policy Associate at Centre for Internet and Society, says in The Business Line :
Section 1 of the Malicious Prosecution Act begins stating that, any person who sends to another
person. Therefore it is clear that the provision does not include any post or electronic
communication which is broadcasted to the world and deals with only one-to-one communication.
Who can file a case?
Anyone can file a case under Section 66A. If your comment, post, pictures circulated via
communication devices are found to be offensive or a threat to a person, community or to the nation,
you can be arrested under this section.
Superintendent of Police, Cyber Crime Branch, Bangalore, D Roopa says: Till date, people who were
booked cases under this act are mostly zealous political leaders who want to create impressions
about top leaders. There has been no case where police has taken a suo motu action and booked
someone under Section 66A. She adds that it is not even right for a police officer to take suo motu
action, until there is threat to the communities, integrity or sovereignty of the nation (terrorism,
naxalism etc).
In November 2012, a PIL was filed by Delhi-based Law student Shreya Singhal, challenging the
vagueness of Section 66A of the IT Act, and its inability to judge with objective standards, which
makes one susceptible to deliberate abuse.
The SC maintained the constitutionality of Section 66A; by citing the Advisory on Implementation of
Section 66A of the Information Technology Act 2000 written by Department of Electronics and
Information Technology on January 9th 2013, submitted to the Chief Secretaries and the Director
General of Police of all States/UTs.
The Advisory mandates police take arbitrary action, without the approval of officers, not below the
rank of Inspector General of Police (IGP) in the metropolitan cities or Deputy Commissioner of
Police (DCP), or Superintendent of Police (SP) at the district level.
Advocate Pavan Duggal finds giving the police officers such discretionary powers, makes it more
dangerous and a potent weapon to use against anybody. Gautam Bhatia an expert in Free Speech
said, The history of the relentless abuse of Section 295A, 153A of the IPC and Section 66A of the IT
Act 2000, demonstrates that neither local police, nor magistrates can be trusted with sensible

application of these sections. If the SC is to give this manner of discretion, it needs to be

accompanied with clear guidelines about the scope of the section.
However, Advocate Danish Sheikh feels the provision is necessary. There is a need to have layers of
decision makers to ensure that the right decision is taken. This will safeguard people from
unnecessarily getting prosecuted under the law, he says.