Olina Banerji explains why digital rights and free speech activists in India believe Section 66A of the Information Technology Act to be unconstitutional

Banerji, Olina

Liang, Lawrence

LSE Research Online

2013-1-30“The scope of Section 66A should be clarified” – LawrenceLiangblogs.lse.ac.uk /southasia/2013/01/30/lawrence-liang/Lawrence Liang, co-founder of the Bangalore-based Alternative Law Forum, discusses the legal role ofSection 66A with Olina Banerji.Media and civil society actors have described Section 66A as “draconian” and rubbished the 2008amendments to the Information Technology Act. In your opinion, is the law incorrectly worded or incorrectlyinterpreted and implemented?The provision contains a number of vague and undefined terms such as ‘grossly offensive’, ‘annoyance’ and‘inconvenience’, all of which can be given a wide berth in terms of interpretation, especially when the personinterpreting the law is an overly sensitive person or a police officer. This is not merely about incorrect interpretationand implementation but the very existence of some of these vague categories [within Section 66A]. Typically, anyrestriction on speech in India has to satisfy the reasonable restriction test in Article 19(2) of the Constitution and thelimitations placed thereunder, and none of these terms satisfy that test.Is it possible to curb hate speech and rumour without theprovisions under Section 66A?Yes and no. While speech acts such as hate speech andrumours can be tackled through existing laws, there are otherelements of speech online such as spam, which are notcurrently covered by the law—Section 66A in part attempts todeal with those problems. But the scope [of the provisions]should either be clarified within the Act itself or the judiciaryshould read down the provisions to cover a narrow range ofspeech acts.What amendments would make the Information TechnologyAct more constitutional?As long as words like “offensive” [are included in the Act], the scope for misuse will remain high. If there is to be aclarification, it should be of a nature that aligns the term ‘offensive’ to existing definitions such as those that exist inSections 153A or 295A of the Indian Penal Code. While these are not great provisions in themselves, at least theirscope has been narrowed down through judicial interpretation. That said, this is much like a choice between thedevil and deep sea; in an ideal world, we would do away with terms like ‘offensive’ and ‘annoyance’ altogether fromthe Act.What changes are required in terms of enforcement of the law in matters of breach? Are new guidelines thatrequire senior police officers to approve complaints under Section 66A against online material sufficient?The biggest problem right now is that the police can act on the basis of a complaint or suo motu. As with the seditionlaw, what is needed in terms of checks and balances is a requirement of sanction from the government forprosecution. This will dilute the immediate problem of knee-jerk reactions by the police.Click here for an analysis of the constitutionality of Section 66A. About the Author1/2Olina Banerji is a Consultant with Ashoka India and graduated from LSE with an MSc in Media andCommunications in 2010.Copyright © 2016 London School of Economics2/2

Section 66A and free speech in India: the debate continues

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Section 66A and free speech in India: the debate continues

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