Supreme Court Guidelines on Arrest u/s 66A of Information Technology Act, 2000.
The internet is an oft praised platform with plenty of opportunities for people to explore options, and more importantly, voice their opinions. It is the platform where anybody who wants to express an opinion about anything may do so- your age, sex, nationality, country of residence, etc, are irrelevant. All you really need is a social networking website, a registered ID, a workable internet connection, and obviously, a mode to carry out the task (be it the old fashioned net cafe desktops, or even just cell phones given technologies recent ascent).
While much of these opinions are awe-inspiring, exhilarating even, certain others may find these opinions offensive- maybe even frightening. Take for instance, the arrest of the two users in Maharashtra who questioned the Bandh following the death of Bal Thackeray, former leader of the Shiv Sena. The state home minister R.R. Patil, at that point, announced a high level probe into the matter. He said the police targeted the girls because of the ambiguity in the Information Technology (IT) Act, 2000.
Of recent events is the highlight of Jaya Vindhyala, a PUCL activist who allegedly posted derogatory comments on her Facebook ‘timeline’ on Chirala legislator, Amanchi Krishna Mohan and the Tamil Nadu Governor, K Rosaiah. Subsequently, Amanchi Mohan filed a complaint and the police invoked provisions of Section 66A of the IT Act, and Section 120 B of the IPC (Criminal Conspiracy). Jaya Vindhyala was arrested on the 12th of May, 2013.
Section 66A of the Information Technology Act deals with punishment for sending offensive messages through communication service, which cause annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will. For the purpose of this section, “electronic mail message” and “electronic mail” cover messages or information transmitted or received on a computer, computer resource, and communication device and include attachments whether in text, images, audio, video or any other electronic records which may be transmitted via messages. The real question, however, is what constituted electronic messages to be offensive or menacing? Going by the English language, it would depend from person to person; a subjectively skewed outlook with its own threats of ambiguity overriding liberty.
What’s worrisome about the case of Vindhyalaya is that she had been opposing the local legislator on several issues and brought out a fact- finding committees report accusing the legislator of malpractices.
India is a Democratic country which holds dear its constitutionally prescribed Fundamental Rights of which Article 19(1) (a) epitomizes the freedom of speech and expression. Are people no longer permitted to voice their opinions, be it via paper medium, or even the internet? The internet has a far greater reach than most paper medium would- what with users constantly overusing the infamous search engines of Google and Bing and posting whatever thoughts flow through the innards of their brains on public forums, like Facebook and Twitter, sparking off heated debates. Yet, several times, as has been observed, the ambit of this right is required to be contained.
The phraseology of Section 66A of the IT Act is wide and vague; incapable of being judged on objective standards, thus far susceptible to reckless abuse. Earlier in the year, as per the Centre’s January 9th Advisory, “State governments are advised that as regard to arrest of any person in complaint registered under section 66A of the Information Technology Act, the concerned police officer of a police station may not arrest any person until she/he has obtained prior approval of such arrest from an officer, not below the rank of Inspector General of Police (IGP) in metropolitan cities or of an officer not below the rank of Deputy Commissioner of Police (DCP) or Superintendent of Police (SP) at district level, as the case may be.”
Justices B.S. Chauhan and Dipak Misra, comprising the Apex Court vacation bench, on the 16th of May 2013 refused to pass an order for a blanket ban on arresting persons for posting objectionable comments on website. In lieu with the Centre’s January 9 advisory, the Supreme Court reiterated that no person should be arrested for posting “objectionable comments” on social networking platforms without taking prior permission from senior police officials. The order was passed based on an interim application which sought the release of Smt. Jaya Vindhyala. This application was filed by Shreya Singhal (CRL.MP nos. 11600 & 11601/2013) in a writ petition [Article 32] in Shreya Singhal v. Union of India [WP (Crl) 167/2012]..
Authored By-
Janhavi R I
II Year
BBA/LLB
Symbiosis Law School, Pune