Bringing IT Act 2000 in Alignment with the Constitution
In response to input sought by the Law Commission of India on media and privacy
Rohan Joshi and Ranjeet Rane, The Takshashila Institution
Takshashila Policy Advisory 2014-01
This document is the authors’ formal submission to the Law Commission of India. The commission floated a Consultation Paper on Media Law in May 2014 to elicit views from stakeholders and the general public.
Section 66A of the Information Technology Act, 2010, when enforced, places unreasonable restrictions on the freedoms of speech and expression of Indian citizens, thereby contravening guaranteed constitutional rights. It is recommended that Section 66A in its entirety be repealed in order to prevent the misuse of indefinite and ambiguous terms for political or personal gain. However, if this is infeasible, it is recommended that clear and narrow definitions of what constitutes grossly offensive, insulting, annoying or inconveniencing content be defined.
Further, beyond the concerns pertaining to the rights to free speech and expression, the verbiage in Section 66A imposes technical limitations that perhaps were not intended. Technical challenges involving anonymity on the Internet and allowing for the repudiation of the origin of digital content, limitations in jurisdiction and inconsistencies between the IT Act and the Indian Penal Code (IPC) may render Section 66A ineffective. In addition, it is also recommended that India not constitute a regulatory authority to regulate "ʺobjectionable"ʺ content on the Internet at this time. Bringing in yet another statutory body to regulate content in India would only add to the list of institutions with overlapping mandate.
Ultimately, India needs common-sense legislation that embraces the spirit of the constitutional rights guaranteed to citizens as well as taking cognisance of the technical challenges that new and emerging media of mass communication present.
This policy advisory can be cited as: Rohan Joshi and Ranjeet Rane, "Bringing IT Act 2000 in Alignment with the Constitution", Takshashila Policy Advisory 2014-01. (2014) www.takshashila.org.in.