ON December 14, 2012, P. Rajeeve, Member of Parliament from Kerala representing the Communist Party of India (Marxist), moved a resolution in the Rajya Sabha to amend the Information Technology Act, 2000. He argued that the terms such as “grossly offensive” and “menacing character” used in the Act were vague and open-ended and were not defined and were subject to discretionary interpretations. Kapil Sibal, the then Minister for Communications and Information Technology in the United Progressive Alliance government, defended the Act against all such criticism.
Now Rajeeve feels vindicated: “When I had pointed out that freedom should be in accordance with Articles 19(1) and 19(2) of the Constitution providing only for reasonable restrictions, and laws cannot be ultra vires , Sibal said that when the Constitution was written, social media did not exist and hence new laws need to be formulated.”
The amendment Bill to insert Section 66A in the Act was passed along with seven other Bills in seven minutes on December 22, 2008, in the Lok Sabha. It was passed in the Rajya Sabha on December 23, 2008, the last day of the winter session of Parliament, without any discussion.
Baijayant “Jay” Panda, Biju Janata Dal MP from Kendrapara in Odisha, was one of the few critics of Section 66A. He told Frontline : “I only wish we in Parliament had heeded the people’s voice and repealed it ourselves, instead of yet again letting the judiciary do our work for us.”
Rajeeve concurred and said that Parliament had failed in its duty with regard to due caution and vigilance and opened a space for judicial intervention. The CPI(M) interpreted the judgment as sending a correct message to State governments like that of the Trinamool Congress in West Bengal, which the party said believed in suppressing dissent.
Rajeev Chandrasekhar, a two-time Independent MP from Bangalore, has been an advocate of online free speech and a petitioner in the case. Right after the judgment, he tweeted: “#sec66a victory: It takes a #PIL to undo the damage that #UPA caused by passing #ITACTAmendments in 7 minutes flat! #freespeechwins.”
Interestingly, several politicians changed their earlier positions after the Supreme Court’s judgment.
Earlier, when Rajeeve had moved a statutory motion against the Rules of the Act, the then Leader of the Opposition, Arun Jaitley, had supported him. But when the Bharatiya Janata Party (BJP) came to power, Jaitley, as Finance Minister, and his colleagues in the Narendra Modi government started singing the same tune as the UPA government had. “They arrested people who spoke against Prime Minister Modi and tried to curb any kind of dissent or opposition,” said Rajeeve.
So was the case with former Union Finance Minister P. Chidambaram. When Puducherry businessman Ravi Srinivasan tweeted something against Chidambaram’s son, Karthi, he was summarily arrested under the Act. But after the Supreme Court struck down the Section, Chidambaram said: “I welcome the judgment of the Supreme Court holding that Section 66A of the IT Act is unconstitutional. The Section was poorly drafted and was vulnerable. It was capable of being misused. In fact, it was misused.”
The party that pushed the Bill through Parliament also did not waste time in endorsing the judgment. In a statement, the Congress said, “We uphold the SC verdict on I.T. Act. In concept, 66A was not wrong, but the language was perhaps not tight enough to stop misuse of the Act.” The party, however, had a dig at the BJP, while admitting to its complicity in the poor drafting of the provision.
“We sincerely hope that the government will be guided by the sole consideration of upholding individual’s liberty of expression with reasonable restriction as contained in Article 19(2) and not be guided by the ever shifting stand of the Bharatiya Janata Party (BJP) on the issue as BJP and Shri Arun Jaitley termed the law as ‘online emergency’ while in opposition and justified the same law when in power through an affidavit in Supreme Court by stating that Section 66A was necessary to ‘regulate the use of cyberspace’,” the Congress said in its press release.
The Aam Aadmi Party welcomed the decision and said: “We are happy that the bizarrely implemented Section 66A, which had criminalised class XI students and Netizens worried about being ‘annoying’ and ‘inconvenient’, has been struck down by the Supreme Court. Ideally, all the political parties should have joined hands to remove this section of the I.T. Act. It’s sad that despite repeated instances of misuse of this draconian section, political parties failed to build consensus to bring an amendment to the I.T. Act and the Supreme Court had to intervene. We congratulate the apex court for defending our fundamental rights, which had been curtailed by both the NDA [National Democratic Alliance] and the UPA on pretext of securing public order. We also condemn the two-faced opportunism of the NDA government that spoke out against Section 66A while in opposition, only to defend it both in court and in Parliament after assuming power.”
The Janata Dal (United) and the Shiv Sena were the two parties that spoke against the Supreme Court verdict. JD(U) leader Sharad Yadav felt that freedom of speech did not mean “freedom to abuse”. The Shiv Sena believed it would weaken the hands of law-enforcement agencies against those who misuse social media. Soon after Bal Thackeray’s death, two young girls from Palghar in Thane had been arrested for posting and liking a post on Facebook. But when Frontline spoke to Sena spokesperson Neelam Gorhe, she refused to either confirm or deny her party’s reported stand on the judgment. “The Supreme Court has come to a conclusion and everybody has to abide by it,” she said.