Section 66 A: Why Merely Scrapping a Law Does Not End its Abuse

The fact that Section 66A is being misused despite being scrapped has brought the criminal defamation law in focus.

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Explainers
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 Time to relook at the continued misuse of the scrapped Section 66 A and the criminal defamation law. (Photo: The Quint/Hardeep Singh)

In 2015, more than four thousand people were charged under Section 66A of the IT Act. The catch – the Supreme Court struck down Section 66A of the IT Act on 24 March 2015.

It’s unlikely that 4154 people were charged under the draconian law in just three months. The police continues to fail in implementing the IT Act judiciously and this is because of ineffective information dissemination from the Centre to the states, and finally to the police, Nikhil Pahwa, co-founder of savetheinternet.in tells The Quint.

Section 66 A: Scrapped, But Not Out

A study examining the repeal of Section 66A and its after-effects suggests that the court could have given proper meaning and scope to the ambiguous terms instead of removing the “protective provision” in its entirety. This, they argue, is because “every law is prone to misuse and the abrogation of a provision vulnerable to misuse cannot guarantee fair implementation of the due process of law”.

But Apar Gupta, who was among the lawyers at the forefront of the campaign to scrap Section 66A, disagrees that guidelines could’ve been a viable solution.

The law has been scrapped by the Supreme Court and its still being misused by the police. Do you think they would’ve followed guidelines?
Apar Gupta, Lawyer and Freedom of Speech Activist
 Rinu Srinivasan and her friend Shaheed Dhada were arrested for a Facebook post about Mumbai shutting down for Bal Thackeray’s funeral. (Photo: Screengrab/ANI)
Rinu Srinivasan and her friend Shaheed Dhada were arrested for a Facebook post about Mumbai shutting down for Bal Thackeray’s funeral. (Photo: Screengrab/ANI)

Next In Line: Criminal Defamation

On 5 September, the Supreme Court issued a notice to the Centre asking whether a firm can initiate criminal defamation proceedings against an individual. Greenpeace activist Priya Pillai claims she is the victim of an abuse of justice and process, and that Mahan Coal Ltd is using the criminal defamation in a strategy against public participation, association, discussion and advocacy.

This case, combined with crime data that indicates the police is still implementing the scrapped Section 66A, has brought the legal fight for free speech back in focus.

Greenpeace activist Priya Pillai has said that Mahan Coal Ltd. is victimizing her for exposing them. (Photo: Screengrab/ANI)
Greenpeace activist Priya Pillai has said that Mahan Coal Ltd. is victimizing her for exposing them. (Photo: Screengrab/ANI)

What Is Criminal Defamation?

Section 499 of the Indian Penal Code criminalises speech, text or any sign or visible representation that seeks to defame any person or organisation. If found guilty, one can be punished with simple imprisonment for a term which may extend to two years, or with a fine, or both.

In May this year, the Supreme Court ruled on a batch of petitions including the ones by Congress vice-President Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal and BJP leader Subramanian Swamy and upheld the validity of the criminal defamation law.

Right to free speech is not absolute. It does not mean freedom to hurt another’s reputation, which is protected under Article 21 of the Constitution. 
Supreme Court

The court said that the Article 21, which guarantees right to free speech had to be balanced with Article 19(2) that imposes reasonable restrictions on free speech.

The Supreme Court upheld the validity of criminal defamation against a batch of petitions by  top politicians among others. (Photo: Altered by <b>The Quint</b>)
The Supreme Court upheld the validity of criminal defamation against a batch of petitions by top politicians among others. (Photo: Altered by The Quint)

The Problem with Criminal Defamation

1. The truth is not a defence.
Even if a person has spoken the truth but defamed another, one can still be held criminally liable.

2. A person can be accused even if he or she hasn’t spoken or written or suggested anything against the aggrieved party.
The mere allegation that a person conspired to defame is enough to warrant a case.

3. A person can be booked for defaming a dead person.
This goes against the very logic of the law, which is to protect the reputation of a person, his or her ability to earn a livelihood and respect in society.

4. “Any imputation concerning any individual” can file a criminal defamation suit.
This means that a person can be filed for even political speech. It also leaves journalists vulnerable to politicians or people holding public office.

5. An imputation concerning an company or an organisation can also invite a criminal defamation suit.
Public institutions and private firms, according to the explanation of the law, can sue for criminal defamation.

The British imported their idea of criminal libel into the Indian penal code more than 150 years ago, but removed the law from their own statutes in 2009. South Africa is in the process of striking it down. Zimbabwe has already done away with it. The American freedom of speech laws override its criminal defamation law.

The law itself owes its origins to high society Englishmen who would challenge each other to duels to settle personal insults. Liberal democracies have recognised that criminal defamation is a disproportionate sanction. In the interest of free speech, it’s time India follows suit.

(Sources: NCRB, Legally India)

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