Mr. Kapil Sibal
The Hon’ble Minister for IT & Telecom,
Government of India
Subject: Concerns regarding Section 66A
Dear Sir,
We are writing to you on behalf of all law-abiding
citizens of the country and I wish to put on record our enormous concerns
regarding Section 66A of the Information Technology (Amendment) Act 2008.
We are appealing to your good sense because you have recently
displayed responsiveness by issuing guidelines aimed at limiting the use of
Section 66A in the wake of politically driven arrests of two girls from Mumbai.
Sir, the constitutionality of Section 66A is under question in the highest
court of India. To the best of my knowledge, the Section does not have any
precedents in the Indian Penal Code. In a non-Internet context, this means that
the Act of sending repeated communications (letters, etc.) to a person in
itself may not be a cognisable offence that would prescribe a term of upto 3
years. However, if the content of the communication, in a given context, is such as
may be punishable under the law of the land, or if the manner of sending such
communications is such as is deemed unacceptable under law, then the sender of
such communication may be tried under proper provisions of the law and awarded
proportionate punishment. In the language of the common men and women who I
represent, this would simply mean that sending repeated letters for, say,
recovery of money would not attract the same punishment as sending repeated
letters containing rape threats. However, sir, Section 66A does just that-
prescribes similar treatment for various different offences!
We do understand the concerns of the government regarding
rising cyber crime but, sir, we’re afraid that the present IT Act fails to do
that. As recently disclosed in the Rajya Sabha, the number of people arrested
under the IT Act so far is 1600 while the number of convictions is a shocking
seven! Out of these seven convictions, only three are significant cases.
We appreciate the fact that you are concerned for women’s
safety on the Internet. However, many women, including feminists, have said on
record that the section doesn’t do much to protect them. I’m of the opinion
that, if the Section is really meant to protect women, then there should be
another sections in the IT to protect their rights.
We want you to take note of the language in the Section 66 A- “directed communication”, “unsolicited”, “consent”,
“persistently”- these words are key to an effective legislation and they’re
missing in Section 66A which instead uses terms like “offense”, “insult”, “.
Any real woman who has faced online abuse would agree with this, more or less.
This should be a good enough reason to scrap Section 66A unless the purpose of
such legislation is made clear.
Section 66A invents new crimes such as causing annoyance,
insult and inconvenience. We are well within our Constitutional right to
offend, annoy, inconvenience or even insult institutions, practices,
individuals, etc. as long as it is within the limits of decency and does not border
on hate speech. Even potentially violent speech must pass various tests like
“public nature, impact, incitement to violence, context, etc.” to qualify as
hate speech but Section 66A, or the IT Act of which it is a part, does not have
any such safeguards.
You had issued guidelines on 29th November, 2012 to
prevent the abuse of Section 66A. Yesterday, on 13th December, 2012, a 20-year
old boy was booked under Section 66A for having sent a birthday cake to a girl
he loved. The birthday cake had a picture printed over it that he had taken
from Facebook. Although a case could be made out for booking the boy under
other relevant sections of the IPC that deal with stalking, etc. the use of
Section 66A is beyond our comprehension. How does sending a birthday cake
amount to “sending offensive messages through electronic medium”? Although this
is not the ugliest instance of the abuse of Section 66A, it does make a
laughing stock of our legal system. More often than not, the Section has been
used for avenging political or personal rivalries, forcing critics into silence
and as a substitute for undefined crimes such as cyber squatting (pratibhapatil.com case), uploading cartoons to a website
(Aseem Trivedi case), creating an image meme out of perfectly decent public
photographs of politicians (Mamata Bannerjee Ambikesh Mahapatra case),
criticising a bandh (Shaheen
Dhada case) and so on.
We have submitted ourselves to the law of this land and we
are strong believers in the rule of law. We do believe that no man is above the
law but we would also like to stress that no provision of law should be above
the Constitution of India. I, a directly affected party under Section 66A, have
been on a fast for a week now along with my activist friend Alok Dixit. We
haven’t heard from the government or any of its representatives yet. This shows
the alarming lack of concern to citizens’ genuine demands and their health,
well-being, rights and life among the lawmakers.
We have taken this step because all advocacy and activism
has failed to get your government to remove the law or to, at least, amend it
to civil society’s satisfaction. We urge you to take note of our concerns and
take some serious steps towards resolving this deadlock as soon as possible.
The India that Rabindranath Tagore had envisioned was one
where “the mind is without fear and the head is held high”. Today, the
Palghar girls, Shaheen Dhada and Rinu Srinivasan can be seen covering their
faces despite having committed no crime while the head of the mob that rampaged
Shaheen’s family clinic gives unapologetic interviews in national news. Is this
the kind of India we want our children to grow up in?
Yours sincerely
Aseem Trivedi
Alok Dixit
