The uproar across India over the jailing of two young women in Maharashtra, Shaheen Dhada and Renu Srinivasan, under the Information Technology Act for their recent Facebook posts shows ordinary citizens value their personal freedoms. This case became a trigger for society to interrogate similar violations recently in West Bengal and Puducherry. The matter is now before a Supreme Court bench headed by the Chief Justice of India. No matter what the court decides, the point has gone home: the controversial Section 66A of the IT Act had best be taken down. It lends itself to abuse by the police, though attorney-general Goolam E. Vahnavati argued that the law was well-intentioned, and it was patterned on similar laws in the United States and Britain, and it was not ultra vires of the Constitution. But the A-G has readily conceded the Maharashtra arrests were totally “unjustified and indefensible”. Knowing the craven attitude of the police towards political authority and influential parties, similar unjustified detentions are foreseeable even if only top police officers henceforth have the right to order arrests.
The bench of Chief Justice Altamas Kabir and J. Chelameswar expressed “concern over the manner in which the provision (Section 66A) is being used or misused”, and considered the present law too broad. To this we may add that the law on defamation has enough teeth to deter those on social media who may be intent on mischief. The IT Act need not be burdened with that function. What we need is to take care of the national security aspect while safeguarding personal freedoms. In a democracy, protecting freedoms is an obligation of the government. The A-G was right to observe that the two women should not have been arrested as the offence is non-bailable. But that is just the point. If the discretion of arrest is left in the hands of some overenthusiastic police officers, it will more likely than not produce results that are regrettable.
That Section 66A is at all a part of the IT Act is a comment on the lack of application of mind by our MPs. There are enough MPs in both Houses who are capable of carefully vetting bills. But the two Houses are typically in uproar over small matters and the government is able to get legislation cleared without discussion. So we often get laws that are not thought through carefully. Besides, the political class has become too thin-skinned, and any criticism is deemed to be a retraction of its unearned privileges. As a society, we need to guard against such a pattern.