SC worried over misuse of cyber laws; govt harps on ‘security’

The Supreme Court on Tuesday expressed concern over the frequent misuse of Section 66A of the Information Technology Act, which makes posting of "offensive" messages on social media a crime punishable with a three-year jail term.

A bench of Justices J Chelameswar and Rohinton Fali Nariman said the term 'offensive' is "vague" and highly "subjective", and moreover under the current provisions a person charged under the Section has to suffer trauma as there is a long time gap between the commission of the alleged offence and when the judicial mind is applied to the case.

 "I can give you millions of examples but one burning issue is of conversion. If I post something in support of conversion and some people, not agreeable to my view, file a complaint against me then what will happen to me," Justice Nariman asked additional solicitor general Tushar Mehta.

In reply, the union government suggested it may amend the controversial Section 66A, which has often been misused by governments to harass critics – but at the same time made it clear that the law would remain in place.

Additional solicitor-general Tushar Mehta for the government insisted that the law in its current form does not curtail the fundamental right of free speech and expression, but brought in the national security factor to push for safeguards.

Section 66A was initially challenged by a student, Shreya Singhal, in 2012 after two teenaged girls were arrested by Maharashtra police for alleged objectionable remarks on the virtually state funeral accorded to late Shiv Sena leader Bal Thackeray, which disrupted normal life for citizens.

Several NGOs and civil liberty organisations had filed separate petitions challenging the clause in the Act. The case assumed significance also against the backdrop of the arrest of Jadavpur University professor Ambikesh Mahapatra for forwarding a cartoon lampooning West Bengal Chief Minister Mamata Banerjee.

Mehta said – rather speciously – that the provision was not intended at targeting individuals making political statements, but meant to rein in organised groups and others who act against national security.

Obfuscating cyber-security with freedom of speech, Mehta repeatedly stressed security concerns as the rationale for keeping the clause in place, saying that government websites have frequently been hacked.

In one example, he said that recently the external affairs ministry had received a mail purportedly from the US. "But the cyber-criminal tried to show that the mail originated from the office of the Indian embassy located in China. The mail was sent to senior officers of MEA, including the top brass.

"The purpose of the mail was to infect, steal and monitor the information residing in the computer systems of the senior officers of the MEA. The information was shared with two of our neighbouring countries with which we have not friendly relations and not-so-friendly relations," Mehta told the bench.

He said "ransomware" mails were also being sent by hackers in the name of the Reserve Bank of India or the income tax department refunds section. "Ransomware" is malicious software designed to block access to a computer system until an amount is paid.

The bench riposted, "We have to judge the statute as it stands before us. You tell us what it means by the expressions 'grossly offensive' and 'nuisance' in Section 66A.

"Even a legally trained mind takes time to understand these terms. Over here, a policeman books a person for a criminal act. Nobody knows how many years a judge would take to apply his mind. Till then, the man would remain in jail," the bench observed.

Section 66A covers information sent through a computer or other communication devices that is "grossly offensive or has menacing character" or causes "annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will". Those found guilty can be sent to jail for up to three years and fined.