Online censorship: Why government won't get rid of Section 66A

Once upon a time when the BJP was not in the government and Kapil Sibal was lording over the ministry of communications and information technology, Section 66A of the IT Law used to be a dirty word for the leaders of a "party with a difference".

For these leaders it was a tool that the establishment - read Congress - used to muzzle dissent and crackdown on anyone who dared to speak against the Manmohan Singh government. In fact, the IT cell of the BJP once compared this particular section to draconian measures employed by government during Emergency.

But this was "once upon a time". Now, the BJP is in power and just like the government before it, even though the two governments supposedly differ on ideology like cheese and chalk, is finding the Section 66A useful. Arguing in Supreme Court, which is currently hearing a petition filed against government over the Section 66A, additional solicitor general Tushar Mehta has contended it is much needed. "Considering the reach and impact of medium, leeway be given to legislature to frame rules. On internet every individual is a director, producer and broadcaster and a person can send offensive material to millions of people at a same time in nanosecond just with a click of button," Mehta reportedly told the court.

The reality is, however, more nuanced. There is no doubt that Section 66A is a bad law. It was added to the IT Act with an amendment in 2008. This amendment was passed in Parliament with no discussion and since then even though experts have argued how it is bad for free speech and basic right in India, it has not been put under any seriously scrutiny.

The problem with 66A, in a nutshell, is that it is very arbitrary and overly broad. Here is how Pranesh Prakash, a policy director with Bangalore-based Centre for Internet and Society (CIS), describes it, "Section 66A which punishes persons for sending offensive messages is overly broad, and is patently in violation of Art. 19(1)(a) of our Constitution."

Amazingly, it is also a kind of copy-paste job. CIS, which has done a thorough job examining Section 66A, found that is a law heavily "inspired" by archaic laws of Britain.

"A large part of Section 66A can be traced back to Section 10(2) of the UK's Post Office (Amendment) Act, 1935," Prakash wrote in 2012. "Section 66A bears a striking resemblance to the three parts of this law from 1935, with clauses (b) and (c) being merged in the Indian law into a single clause (b) of Section 66A, with a whole bunch of new 'purposes' added. Interestingly, the Indian Post Office Act, 1898, was never amended to add this provision." The question is why a government that wants to call itself "progressive" and wants to move Indian away from all the wrongs the Congress inflicted on the country is backing a law that just doesn't shouldn't exist in the 21st century. The answer lies in the convenience.

By the virtue of its opaque design, something that also makes it a bad law, Section 66A provides incredible convenience to any government. It can be broadly interpreted so it can used in "creative" ways. It can be used to go after genuine cyber criminals as well as the anyone who is an annoyance to the government.

It can be used to keep a check on an increasingly web-savvy and social-media loving population.

It is possible that Supreme Court may strike it down. After all, the argument that it violates Article 19(1)(a) is quite strong. And the Supreme Court has already noted that the Section 66A seems unnecessary. "Heavens are not going to fall if the provisions are stayed... because this country has been in existence for the past 60 years without these provisions," the court told government during a recent hearing.

It is easy to see why the BJP has done a U-turn on this issue. Now that the party is in government, it sees value in the Section 66A. It considers it as a Congress-gifted tool that can be used to good effect in case there is a need to crack down on the web users in India because otherwise, given the nature of the web, there is no way to shape discourse on sites like Facebook and Twitter.