Is Section 66A of IT Act in India unconstitutional?

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Section 66A of the Information Technology (IT) Act has been widely criticized by free speech activists and legal eagles. Many have dismissed this controversial section of the IT Act as “unconstitutional” and “arbitrary”. Hence, there is a need to ponder over the inherent flaws of Section 66A and the reasons as to why it has received so much of flak from public intellectuals. Before delving into the nuances of Section 66A, we first need to revisit the status of freedom of speech and expression in the context of Indian democracy.

Freedom of speech and expression is a constitutional liberty which finds explicit mentioning under Article 19 (1) (A) of the Indian Constitution which states, “All citizens shall have the right to freedom of speech and expression.” However, freedom of speech is not an absolute right and has been subjected to reasonable restrictions enunciated under Article 19 (2). These restrictions prevent the citizens of the country from utilizing the freedom of speech in a manner which endangers the “sovereignty and integrity of India, the security of the state and friendly relations with foreign states.” Other restrictions pertain to public order, decency or morality, contempt of court, defamation and incitement to an offence.

Article 19 (2) clearly spells out the constitutional philosophy of the Indian State in regards to freedom of speech and expression. Absolutionism is alien to Indian Constitution. In fact, even the citadel of freedom and democracy, the United States of America too cannot claim to be an absolutionist when it comes to free speech. Though First Amendment Absolutionists including the late Christopher Hitches always advocated in favour of absolute free speech, court judgements in the United States have ruled otherwise. In the case of Schenck vs United States, Justice Oliver Holmes Jr. famously proclaimed that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” This basically meant that the First Amendment could not be used as a cover to spread falsehood.

The fact of the matter is that “your freedom ends where my nose begins.” Hence, arises the need for legislations like Section 66A of the IT Act. All forms of media are regulated via some kind of legislation. The internet or the social media remains largely unregulated. Several problems have been created in the past largely due to the unregulated nature of the internet. In the year 2012, shortly after the Assam riots, doctored videos of the violence in Rohingya were widely distributed on the web. It was claimed that these pictures were emerging from Assam. Through this sinister ploy an attempt was made by certain miscreants to divide the society which ultimately led to the exodus of a large number of North Eastern people from the southern parts of India. Last year’s deadly Muzaffarnagar riots were stoked because of a doctored video posted on Facebook.

By delving into history, we can cite several such instances of cyber crime. Section 66A of the IT Act is an attempt to deal with such excesses. Section 66A makes it an offence to use a computer resource or communication device to pass on information which might be “grossly offensive”. The foremost criticism of Section 66A of the IT Act is the one articulated by Shreya Singhal in her PIL wherein she has challenged the constitutionality of the provision by stating that it is too “ambiguous” and “vague”. Though, this line of argument is pragmatic, nevertheless, it is simultaneously preposterous. Whenever a law is written, it has to be taken into account that the said law stands the test of time. The internet is an ever evolving phenomena growing at a meteoric pace. If Section 66A is loosely framed and does not have a wider ambit then it is quite possible that many instances of hate speech and misinformation would go unchecked.

Secondly, those who frown at the usage of terms like menacing, grossly offensive, insult, injury, danger, enmity, annoyance and inconvenience within Section 66A, should come forward and explain how they would construe Article 19 (2) of the Constitution. Is there a way to possibly define what is moral and decent? Is there a perpetual methodology using which we can predict which speech would harm public order and which one won’t? For all such matters, we have relied on the wisdom of the judicial courts in India and so far, they have put on show a commendable effort. These things vary depending on the circumstances and the situation. Yes, an attempt has to be made by the legislators and the interpreters of the law to give meaning to or define those words which have been subjected to intense criticism. Some of the more ambiguous terms can be expunged but wisdom does not lie in repealing of the entire provision. The larger interest of the nation lies in far-sighted interpretation of the law instead of a parochial one.

In an Op-Ed for The Hindu (An unreasonable restriction, February 20, 2013), Aparna Vishwanath has enlisted the cases which have involved invocation of Section 66A. There is just one similarity in all the cases that have been mentioned. All of those cases have some political connection. Shaheen and her friend Renu, were arrested for criticizing the shutdown of Mumbai city in the aftermath of Bal Thackeray’s death. Jadavpur University Professor Ambikesh Mahaptra suffered because he chose to pass on cartoons poking fun at Mamata Banerjee.

The threat to Section 66A is coming from politicians and hence there is some merit in the argument which says that the section is susceptible to misuse. The solution to this concern lies in de-politicization of the police. Until and unless we achieve so, there is no law in India which the political class cannot use to its advantage. The Central Government had issued an advisory stating that in metropolitan cities Section 66A should not be invoked before consulting an officer of the rank of Inspector General of Police. This kind of a response does not settle the issue because the probability of political pressure is more intense at the higher level. The only solution is complete de-politicization of police as stated earlier. If that doesn’t occur, no matter which law it is, it will be misused.

Another reason why Section 66A cannot be ruled as unconstitutional is because the quantum of punishment which it carries is of just 3 years which is nothing as compared to life imprisonment which one might be subjected to if a person is booked under the law of sedition in the Indian Penal Code. The quantum of punishment under Section 66A, if proven guilty, is in no way opposed to the principles of natural justice. There has also been some controversy over the ambit of Section 66A. People seem to be confused between the words ‘sending’ and ‘publishing’. In his petition before the Bombay High Court (“Section 66A of IT ACT challenged as unconstitutional, Court seeks Centre’s reply,” NDTV, February 28, 2013), Manoj Oswal opined that “Section 66A has not been analysed from a technological aspect, and it does not apply to Facebook, Twitter, websites, blogs, etc. It applies where only a sender and receiver are involved.” Such contentions are indeed very technical and complicated. Therefore, it would be unwise to comment on this sub-judice matter.

However, Oswal’s other claim which basically states that the IT Act can “be misused against the media as almost all the TV channels and newspapers are available over the internet” is frivolous. Why should there be a difference in law for the common people and the media? The media derives its freedom of the press from the same law through which citizens have been empowered with the freedom of speech and expression. Then why should a law which covers common citizens not cover the media? More importantly, in the age of 24*7 news flow and communication, let us not consider our media and judiciary to be so toothless that they would happily allow Section 66A to muzzle down their rights. Is there even one case of arbitrary conviction by any court of law across India under the guise of Section 66A? The previous government’s defence of Section 66A was lacklustre. They made certain controversial references to laws in Britain which ideally should have been avoided. But you cannot blame them for that blunder since the Manmohan Singh Govt. had developed expertise in doing the right things in the wrong way. The concerns revolving around Section 66A are genuine but way too farfetched. Section 66A has irritants but to outrightly claim that it is unconstitutional is wrong.

(This article was originally published on

Time has turned Hindutva fascist Vajpayee into a moderate

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Atal Bihari Vajpayee’s writings clearly indicate that he held both Muslims and Christians (more specifically Muslims) as foreigners and viewed their patriotism with suspicion. (Image: PIB)

The Narendra Modi led NDA government at the Centre has declared to bestow Bharat Ratna, the highest civilian honour to former Prime Minister Atal Bihari Vajpayee. With this award, Vajpayee finds himself amid the likes of several iconic Indians from various fields including BR Ambedkar and Sachin Tendulkar.

But was Vajpayee the kind of leader he is projected to be by the BJP today? Was he an accommodative consensus builder or was he just another Hindutva fascist, who has turned into a moderate with the passage of time?

The answer unfortunately rests in the fact that Vajpayee was as foul mouthed a leader as the likes of Sadhvi Niranjan Jyoti. In an article titled ‘Sangh is in my soul’, Vajpayee had written, “… We don’t want to destroy this diversity. The other task is to assimilate the non-Hindus, like Muslims and Christians in the mainstream. They can follow the faith of their own conviction. No one can object to it. We worship trees, animals, stones, and what not. We have hundreds of ways of worshipping God. They can go where they want. But this country must be looked upon as the motherland for them. They must have a feeling of patriotism for this country. But the Islamic division of the world into ‘Darul Harb’ and ‘Darul Islam’ comes in the way.”

He had further stated, “Islam has yet to learn the art of existing and flourishing in a country where Muslims are in a minority. They cannot convert the whole of India to Islam. After all, they have to live here. So they have to recognize this fact. And today it has become a matter of grave concern and deep thinking in the Muslim countries. Because Quran offers no guidance in this regard, it only talks of killing kafirs or converting them to Islam. But they cannot do it always and everywhere. How can they do it where they are in a minority? If they try to do it, a major clash will take place and only the members of the minority will be killed.”

Vajpayee’s writings clearly indicate that he held both Muslims and Christians (more specifically Muslims) as foreigners and viewed their patriotism with suspicion. Moreover, Vajpayee made certain highly misleading remarks about the Quran, the holy book of Muslims. The Quran speaks of religious freedom in numerous verses (2:256 & 109:6) wherein it states that “there is no compulsion in religion” and “to you, your religion and to me, mine” but Vajpayee sought to make hysterical remarks like the Quran sanctioning murder of non-Muslims.

Vajpayee’s tone seemed to be similar to that of AIMIM leader Akbaruddin Owaisi as he spoke of a “major clash” between Hindus and Muslims. The only difference in Vajpayee’s prophecy being that such a clash would lead to the killing of “only the members of the minority.”

Further, Vajpayee was often touted as the “right man in the wrong party” vis-a-vis the issue of Babri Mosque demolition. After all innocent Vajpayee wasn’t even present in Ayodhya on December 6, 1992 when his party was at the forefront of crucifying Indian secularism by razing the Babri Masjid to the ground! But was Vajpayee really innocent?

In a rally held on December 5, 1992 (a day before the demolition of the Babri Mosque) at Jhandewalan Park in Lucknow, Vajpayee had said, “There is no question of stopping. By doing kar seva in Ayodhya we will not be disrespecting any court order, by doing kar seva we will be respecting and obeying the Supreme Court order.”

Vajpayee went on to state that the court had allowed them to conduct “bhajan, kirtan programmes” at Ayodhya but they could not be done by “one person” nor could they be done by “standing”. He argued that there was a need for “even more people for kirtan”, which was a clear nod for mobilization of large number of Hindus before marching to Ayodhya.

Thereafter, through appropriate use of concealed language, Vajpayee gave the nod for the demolition of the Babri Mosque by saying, “There were sharp stones that came out, no one can sit there, the ground has to be levelled, it has to be made fit for sitting.”

The Liberhan Commission set up by the Government of India to investigate into the demolition of the Babri Mosque was clever enough to see through Vajpayee’s bluff. It not only indicted Vajpayee for being a part of the conspiracy to destroy the Babri Mosque but also labelled him as a “pseudo-moderate”.

A lot of people consider Vajpayee to be secular because he apparently asked Narendra Modi to do his ‘Raj Dharma’ in the aftermath of the 2002 post-Godhra riots in Gujarat. But if one sees the complete video of that press conference, then in the end Vajpayee expresses his confidence in Modi and says that the he is doing his ‘Raj Dharma’. It doesn’t end over here. People’s Democracy (Vol 26, No. 22, June 9, 2002) reports the controversial remarks of Prime Minister AB Vajpayee at BJP’s summit in Goa on April 12. He is on record having said, “Jahan jahan Musalman hain ghul milkar nahi rehte hain” (wherever there are Muslims they don’t live in peace). He added, “They don’t want to mix with others. Instead, they want to preach and propagate their religion by creating fear and terror in the minds of others.”

Does such a man deserve the Bharat Ratna?

The BJP is merely interested in furthering its political legacy. But the sad reality is that this award would make Vajpayee a national icon in the eyes of several generations to come. But the truth is that he was an Islamophobic, hate monger. With the passage of time, the masses seem to have forgotten Vajpayee’s views.

It is disheartening to see how the Bharat Ratna has been politicized. Equally disheartening is the manner in which it is being handed out. The Congress government made the timing of the announcement of the award coincide with Sachin Tendulkar’s last test match. BJP has followed their footsteps and made the announcement just one day before Vajpayee’s birthday.

Such ceremonial announcements seem to erode the credibility and stature of the award. Why should the timing coincide with an event concerning the awardee – be it his last test match or yet another birthday?

But such is politics and it would continue to be so.

(This article was originally published on

Khap Panchayats have no influence and place: Gurgaon MLA Umesh Aggarwal

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Having dealt with the media extensively during his previous avatar as BJP spokesperson, Gurgao MLA Umesh Aggarwal seems wary of the power of the media. He is a highly private person who does not like to be questioned much. Before the interview began, he wished to know how many questions he would be asked. (Image: Hindustan Times)

The city of Gurgaon, mythically believed to have been gifted by the Pandava brothers to their teacher Dronacharya, has now entrusted its development to former businessman, Umesh Aggarwal, who feels Haryanas’ infamous Khap Panchayats have no influence and place in Gurgaon.

Having dealt with the media extensively during his previous avatar as BJP spokesperson, Gurgao MLA Umesh Aggarwal seems wary of the power of the media. He is a highly private person who does not like to be questioned much. Before the interview began, he wished to know how many questions he would be asked. Requests for reaching out to his family members were turned down by his media manager. Aggarwal’s personal secretary was also hesitant in revealing much about his boss.

Even though the newly elected Chief Minister of Haryana, Manohar Lal Khattar, supports Khap Panchayats, infamous nationwide for passing sexist and extra-judicial diktats, Umesh Aggarwal doesn’t seem to be on the same page as the former RSS man on this issue. “Khap Panchayats have no influence and no place in Gurgaon,” he says.

As Aggarwal undertakes his first stint in the Haryana Assembly, he is set on charting a clear roadmap for Gurgaon’s growth in the next five years.

Vishnu Rathi, resident of Sector 45, says Gurgaon does not expect much from Aggarwal as he has been denied a ministerial position. However, Aggarwal who is known for his trademark made-for-media comments believes he can make a difference.

The 44-year old registered a record breaking victory margin of over 80,000 votes in the Haryana state elections in October. While BJP candidate Aggarwal bagged 1,06,106 votes in Gurgaon, his nearest competitor Gopi Chand Gahlot could only manage 22,011 votes.

Before entering active politics, Aggarwal was involved in advertising and real estate business. A Master’s degree holder from Hyderabad’s Osmania University, Aggarwal hails from the bania community of traders. In 2006, he formally joined the right-wing Bharatiya Janata Party and rose to head the party’s state media cell. He unsuccessfully contested from Gurgaon in the 2009 Haryana elections where he only won 23,864 votes.

“In 2009, I did not have sufficient political experience,” he said and alleged that his opponent Sukhbir Kataria had committed a vote fraud in the previous elections. He added, “I won the elections this time around by gaining more experience, spending time with people in the constituency and ensuring that there was no voting fraud.”

Aggarwal attributed his victory to Prime Minister Narendra Modi whose relentless campaigning in the state set the tone for BJP’s rise.

Matdata Jagrook Manch, an NGO, had highlighted the fake voter ID scam which involved former Haryana Sports Minister Sukhbir Kataria. Shortly after winning the elections, Aggarwal stated that the law would catch up with Kataria whom he reasoned was being protected from the police by the Bhupinder Singh Hooda government.

“The Congress government in the state was responsible for the sarvanaash (destruction) of Gurgaon. Development in the city has come to a standstill. I intend to reignite growth in this region by laying emphasis on education and health besides bringing metro facility to the old city,” Aggarwal said.

The extension of metro service in Gurgaon is a must considering the fact that autos in the city do not come with pre-installed fare meters. This leads to commuters being overcharged by auto-wallahs.

After having listened to the grievances of slum dwellers from Sector 56 whose homes had been cleared to make way for the Safai Abhiyaan (cleanliness drive), Aggarwal said, “There are problems with land acquisition. The Congress government acted like land grabbers. We need to give people fair compensation.” On how the government plans to hand out appropriate compensation, Aggarwal hinted at bringing about new legislation.

However, he told slum dwellers that their makeshift homes would have to be destroyed to clean up the city as they were defecating in the open. Following their repeated pleas for mercy, he agreed to build homes for those people who had a voter ID card. To those who do not hold a voter ID card, he said, “baaki ko bhaga denge” (would be made to flee).

Popularly known as the Millennium City, Gurgaon has developed into a thriving business centre with over 250 Fortune 500 companies. This has led to an influx of migrants and traffic congestion evident from 73.9 per cent increase in the city’s population over the last decade. Aggarwal’s election manifesto vowed to solve traffic problems by installing more red lights at busy streets. He also promised to clampdown on the parking mafia outside shopping complexes, markets, private and public offices.

The only other satellite city in the National Capital Territory that charts similar exponential growth to Gurgaon is Noida. But Aggarwal insists that Gurgaon is not competing with Noida. “Every Indian city has the right to progress and feed its people. We are not competing with Noida in terms of wooing industries or foreign investors.”

Dismissing concerns of communal tension despite the disturbance in Mewat village, located 35 kilometres from mainland Gurgaon, where two mosques were burnt during sectarian clashes in June, Aggarwal stresses that the region is peaceful. “All the people living in Mewat are our brothers. We will not tolerate anti-social elements who try to destabilize the peace prevailing in the area,” he said.

(This article was originally published in The News Minute.)

Biased governance

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Newspaper clipping from Khaleej Times

In July 2012, the state government of Gujarat had cited Article 27 of the Indian Constitution before the Supreme Court to claim that it was not liable to pay for reconstruction of religious monuments as the constitution forbade the government “from imposing tax for promotion of a religion”.

This is in response to the news report titled ‘Damage to Muslim shrines violation of minority rights’ (KT, November 28). The Gujarat government’s attitude towards payment of compensation for reparation of religious monuments destroyed during the 2002 Gujarat riots (numbering over 500 and mostly belonging to the Muslim community) has once again exposed its communal nature.

In July 2012, the state government of Gujarat had cited Article 27 of the Indian Constitution before the Supreme Court to claim that it was not liable to pay for reconstruction of religious monuments as the constitution forbade the government “from imposing tax for promotion of a religion”.

At present, the state government has offered to pay a minuscule amount of Rs50,000 for each monument, which has been categorically rejected by the Islamic Relief Committee, Gujarat. Ironically, Gujarat government’s former chief minister and current Prime Minister Narendra Modi had once proudly announced at a rally held on September 9, 2002, that his government had sanctioned Rs80 million for the development of the Bahucharaji Devi Temple.

When flash floods struck Uttarakhand in June 2013, Modi stepped out of his ambit and requested the then chief minister Vijay Bahuguna to give the task of the reconstruction of Kedarnath Temple to the Gujarat government.

While the Gujarat government maintains a benevolent attitude towards Hindu temples by sanctioning funds and voluntarily offering reconstruction, it has been highly biased in its duty towards Islamic monuments. However, this should not come as a surprise to anyone because the history of Bharatiya Janata Party is well known.

The political rise of the BJP is courtesy its role in the demolition of Babri Mosque in Ayodhya where they seek to construct a grand temple.

With the BJP in power at the Centre, the safety of minorities is definitely under suspicion. The communal riots in New Delhi’s Trilokpuri area and the burning down of the St. Sebastian Church in the city are a testimony to the growing communal unrest under the BJP regime.

(This article was originally published in Khaleej Times.)