When I write about topics like Section 66A of the Information Technology Act; things involving politics and legislature with different viewpoints and arguments, I leave out the background noise. I leave out the clickbait articles, the Youtube videos, the Arnab Goswami volume decibels, the reddit threads, the inane tweets and the snakecharmers – all of it I feel is largely irrelevant to the problem at hand. Having an opinion on a law you only learnt exists two days ago is like looking at an elephant with a microscope; you’re going to see the little details, the little bits of dust left between folds of grey skin. Small furrows become canyons. You’re getting into territory where you’re going to argue about definitions of the words ‘and’ and ‘or’ with lawyers. But you’re not going to see the bigger picture. I think the constructive way to look at this situation and the whole furor surrounding 66A is the intention and the reason it has existed in its current form.
Before we move on to 66A though, I’d like to talk about Section 79 of the IT act first. The basic gist of the law is to provide “safe harbour” protection to internet intermediaries against liability arising from user-generated content – this protects online enterprises like Google and Facebook by putting the liability on the user, not the company. Which is completely logical and fair. Don’t shoot the messenger and all that, right? Here’s the catch. If any of these companies denies a request by the government to take down a piece of content on their website, that “safe harbour” protection is gone. In a 2013 Google Transparency report, it was stated all the requests sent by Indian government this year, 147 were by the executive and police, while only 16 were based on court orders. The majority of them were for ‘defamation’. Defamation of whom exactly? You cannot defame the framework of the government – it isn’t really a person – so you’re defaming a politician in the government. Sounds familiar? So, to summarise, Section 79 is a law which realistically will never provide a safeguard to any company, foreign or indigenous, but gives the government the right to issue takedown requests on anything ranging from “adult content” to their own criticism.
Section 66A will allow someone to arrest you for sending any message electronically (whether it’s through email or Twitter or Whatsapp) that causes ‘inconvenience’, or sends a ‘false message’, or ‘ill will’ or ‘annoyance’. Just let that sink in – the Constitution that laid our country’s foundation, allows someone to arrest you for ‘annoying’ them. Bear in mind that breaking 66A is a non-bailable offence, meaning the police can book you for practically anything you said on the internet without a warrant or a magistrate’s order. That is an important point though; the police can arrest you if they believe it’s a cognizable offence. When an ‘influential’ politician breathes down your local bobby’s neck about something you ‘liked’ on Facebook, the arrest comes first, and then your chance to plead not guilty. And so begins your long and arduous journey through the fractured corridors and self-replicating mazes of the Indian legal system.
Law is an interesting field. Law doesn’t necessary defend the truth, or fight for justice, or prove who is wrong or who is right. Most of life is a tightrope over a sombre, ashen lake – a fine balance of morality is required to not plunge into the depths of transgression. But the law is black and white in its judgement, guilty or not guilty; the inherent victor will be the one who can frame the narrative better to suit their own situation. It’s what lawyers are for. They will interpret the law to benefit their client, and perhaps on the next day they’ll argue the same thing against. The people who are best at this, though, the people who are born and bred in the ashes of legislative despair, tied to the coat-hangers of corporate greed, fed by the yearning for elective adulation, are the people in parliament. They are the ones who make laws like 66A and 79. And indeed, you could argue that they genuinely have no clue how to run the country, or you could say that they absolutely have an idea of how to run it – one that will suit their best interests.
Why, then, did 66A get written in 2008? Why was there no amendment? Did the lawmakers lack the foresight to anticipate that this vague, open-ended law would be misused by politicians and government officials? I’m sceptical. Despite what some viral Whatsapp messages might portray, the people in office aren’t charlatans or caricatures; they have difficult jobs and most of them know what they are doing. 66A is not a result of incompetence, or a fundamental lack of understanding of the internet landscape. Maybe the initial representation of the law had noble origins, but over time the narrative and intention of it moved towards suppressing critical views of politicians. 66A became a politician’s tool, like a farmer’s sickle or a hipster’s existential angst. When Ashok babu realises that his next election campaign might be tarnished because Ramesh’s driver’s son liked a cartoon on Facebook, all he has to do is call the police and tell them that, and the boy is arrested. It’s an easy fix for them – 66A is like a Band-Aid that fixes “thought leakage” or opposing outlooks. It’s not a stretch to say that in its current form, the law’s implementation is Orwellian.
It’s important to realise, I think, that the recent developments around the Supreme Court’s verdict on 66A doesn’t mean victory yet. There are plenty of other laws that would still fart in your face if you thought you had absolute free speech (which doesn’t really exist in the legal sense) – 69A, 153A, 505, 79. This exhibits a more restrictive approach, a sinuous way of thinking regarding free speech in our country for both citizens and government; regressions to free speech were the very first amendment we made to our Constitution. But that doesn’t mean we should cower in the face of injustice, even when lawmakers borrow from Telegram laws from 1935 to frame acts on ‘Information Technology’ in the 21st century. In fact, it’s a further motive for people like you and me to realise how fragile our internet ecosystem is, where a few misconstrued words in an old law could change our lives forever, and participate to change it for the better.