Seizing Power

Why the IT Act is dangerously open to procedural misuse

01 January 2013
Gaps in the IT Act, which is governed by the CrPC, allow unchecked discretion to authorities investigating potential offences.
AVITRA GULATI / THE WASHINGTON POST / GETTY IMAGES
Gaps in the IT Act, which is governed by the CrPC, allow unchecked discretion to authorities investigating potential offences.
AVITRA GULATI / THE WASHINGTON POST / GETTY IMAGES

IN THE WAKE OF THE SHIV SENA CHIEF Bal Thackeray’s death on 19 November, Mumbai almost completely shut down. Offices closed, shops shuttered, and residents holed up indoors, as the party’s supporters forced a bandh on the city to honour their leader’s life. Shaheen Dhada, a 21-year-old medical student, was hardly alone in her annoyance; her reaction, in keeping with the zeitgeist, was to post a message on Facebook, lamenting that “everyone just goes bonkers” because “one politician died a natural death”. Her friend Renu Srinivasan, upon reading the post, hit the “Like” button, ostensibly expressing her support for Dhada’s sentiment. Within hours of the post, police officers arrested both Dhada and Srinivasan under Section 66A of the Information Technology Act of 2000 (The IT Act), a sweeping provision of law that treats as a criminal offence online speech that so much as offends another person or causes “annoyance” or “inconvenience” (among other things). Offences under Section 66A are also cognizable, meaning police have the power to register a first information report, investigate, and arrest the accused—all without a warrant from a court of law.

In the aftermath of the young women’s arrests—they have since been released—there has been a popular uproar over Section 66A, which many consider a patently unconstitutional provision. There have been widespread calls for the repeal of the law, and two public interest litigations have been filed questioning the provision’s validity, one in the Madras High Court and another in the Supreme Court. Demands for an amendment to the section have also been debated in the Rajya Sabha.

But in the clamour over the illegality of the substantive contents of Section 66A, procedural gaps in the law, which have an equally pernicious impact on our civil rights, have been completely overlooked. In fact, the IT Act in its entirety is susceptible to wanton executive abuse.

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    Suhrith Parthasarthy practises law at the Madras High Court. 

    Keywords: Constitution privacy Internet freedom IT Act CrPC cyber laws cyber crime
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