---
abstract: Seriously flawed and dodgily drafted provisions in the IT Act
  provide the state a stick to beat its citizens with.
author:
- Pranesh Prakash
authors:
- Pranesh Prakash
categories:
- Freedom of expression
citation:
  accessed: 2023-08-16
  author: Pranesh Prakash
  available-date:
    date-parts:
    - - 2012
      - 11
      - 24
    iso-8601: 2012-11-24
    literal: 2012-11-24
    raw: 2012-11-24
  citation-key: prakashDraftNonsense2012
  container-title: Times of India
  issued:
    date-parts:
    - - 2012
      - 11
      - 24
    iso-8601: 2012-11-24
    literal: 2012-11-24
    raw: 2012-11-24
  title: Draft nonsense
  type: article-newspaper
  URL: "https://web.archive.org/web/20130202233928/http://www.timescrest.com/opinion/draft-nonsense-9274"
comments:
  hypothesis:
    theme: clean
date: 2012-11-24
engines:
- path: /opt/quarto/share/extension-subtrees/julia-engine/\_extensions/julia-engine/julia-engine.js
keywords:
- section 66A
- IT Act
- free speech
- policymaking
license:
  text: CC BY-NC 4.0
  type: creative-commons
  url: "https://creativecommons.org/licenses/by-nc/4.0/"
listing-page: ../press.html
original-url: "https://web.archive.org/web/20130202233928/http://www.timescrest.com/opinion/draft-nonsense-9274"
publication: Times of India
title: Draft nonsense
title-block-categories: true
toc-title: Table of contents
---

# Draft nonsense

------------------------------------------------------------------------

Section 66A of the Information Technology Act once again finds itself in
the middle of a brewing storm. It has been used in cases ranging from
the Mamata Banerjee cartoon case, the Aseem Trivedi case, the Karti
Chidambaram case, the Chinmayi case, to the current Bal
Thackeray-Facebook comments case. In all except the Karti Chidambaram
case (which is actually a case of defamation where 's. 66A' is
inapplicable), it was used in conjunction with another penal provision,
showing that existing laws are more than adequate for regulation of
online speech. That everything from online threats wishing sexual
assault (the Chinmayi case) to harmless cartoons are sought to be
covered under this should give one cause for concern. Importantly, this
provision is cognisable (though bailable), meaning an arrest warrant
isn't required. This makes it a favourite for those wishing to harass
others into not speaking.

Section 66A prohibits the sending "by means of a computer resource or a
communication device" certain kinds of messages. These messages are
divided into three sub-parts : (a) anything that is "grossly offensive
or has menacing character";(b) information known to be false for the
purposes of "causing annoyance, inconvenience, danger, obstruction,
insult, injury, criminal intimidation, enmity, hatred or ill will" and
is sent persistently;or (c) "for the purpose of causing annoyance or
inconvenience or to deceive or to mislead the addressee or recipient
about the origin of such messages". This carries with it a punishment of
up to three years in jail and a fine without an upper limit. As even
non-lawyers can see, these are very broadly worded, with use of 'or'
everywhere instead of 'and', and the punishment is excessive. The
lawyers amongst the readers will note that while some of the words used
are familiar from other laws (such as the Indian Penal Code), they are
never used this loosely. And all should hopefully be able to conclude
that large parts of section 66A are plainly unconstitutional.

If that is so obvious, how did we end up getting this law? We copied
(and badly at that) from the UK. The sad part is that the modifications
that were introduced while copying are the bits that cause the most
trouble. The most noteworthy of these changes are the increase in term
of punishment to 3 years (in the UK it's 6 months); the late
introduction (on December 16, 2008 by A Raja) of sub-section (c), meant
as an anti-spam provision, but covering everything in the world except
spam;and the mangling up of sub-section (b) to become a witches brew of
all the evil intentions in this world.

Further, we must recognise that our Constitution is much stronger when
it comes to issues like free speech than the UK's unwritten
constitution, and our high courts and Supreme Court have the power to
strike down laws for being unconstitutional, unlike in the UK where
Parliament reigns supreme. The most the courts can do there is
accommodate the European Convention on Human Rights by 'reading down'
laws rather than striking them down.

Lastly, even if we do decide to engage in policy-laundering, we need to
do so intelligently. The way the government messed up section 66A should
serve as a fine lesson on how not to do so. While one should fault the
ministry of communications and IT for messing up the IT Act so badly, it
is apparent that the law ministry deserves equal blame as well for being
the sleeping partner in this deplorable joint venture. For instance,
wrongfully accessing a computer to remove material which one believes
can be used for defamation can be considered 'cyber-terrorism'. Where
have all our fine legal drafters gone? In a meeting, former SEBI
chairman M Damodaran noted how bad drafters make our policies seem far
dumber than they are. We wouldn't be in this soup if we had good
drafters who clearly understand the fundamental rights guaranteed by our
constitution.

There are a great many things flawed in this unconstitutional provision,
from the disproportionality of the punishment to the non-existence of
the crime. The 2008 amendment to the IT Act was one of eight laws passed
in 15 minutes without any debate in the 2008 winter session of
Parliament. For far too long the Indian government has spoken about
"multi-stakeholder" governance of the internet at international fora
(meaning that civil society and industry must be seen as equal to
governments when it comes to policymaking for the governance of the
internet). It is about time we implemented multi-stakeholder internet
governance domestically. The way to go forward in changing this would be
to set up a multi-stakeholder body (including civil society and
industry) which can remedy this and other ridiculously unconstitutional
provisions of our IT Act.

*The writer is policy director at the Centre for Internet and Society,
Bangalore.*