On November 17, 2012 Shiv Sena founder and chief Bal Thackeray died. Owing to all possible attributes of the ‘Godfather’ attached to his name, what followed was expected. To mourn the death of the leader, the city which ‘never sleeps’ chose to observe a complete shutdown. 

Whether the choice was made out of respect or fear was a question that many would have pondered upon. But when two young women from Palghar, a township north of Mumbai, chose to express their views on the same, all hell broke loose.

Shaheen Dhada and Renu Srinivasan got arrested over their Facebook post questioning the shutdown. Dhada wrote, “Every day thousands of people die. But still the world moves on… Just due to one politician dead. A natural death. Everyone goes crazy… Respect is earned not given out, definitely not forced. Today Mumbai shuts down due to fear not due to respect.”

MUST READ: Sec 66A turned an MP into a citizen activist

Renu, who ‘liked’ the post, commented: “Everyone knows it’s done because of fear!!! We agree that he has done a lot of good things also, we respect him; it doesn’t make sense to shut down everything! Respect can be shown in many other ways!”

Booked under Section 66A of the Information Technology Act, they were detained for 10 days. This section empowered police to arrest anyone for communicating any message that is “grossly offensive or has menacing character” through any electronic communication channel.

The incident only reignited the debate over the section that often invited the epithet ‘draconian’. However, on March 24 a supreme court bench of justice J Chelameswar and justice Rohinton F Nariman stuck down the controversial provision terming it as unreasonable.

The court was acting on 10 petitions challenging the section, the first of which was from a south Delhi girl, Shreya Singhal.

Youth activism

A day after the arrest of the two girls in Palghar, Shreya, now a law student at Delhi University, was vehemently criticising the police action when her mother, a supreme court lawyer, snapped the conversation with an edgy question: “If you feel so strongly about it why don’t you do something about it?” This simple question posed to Shreya, who was then planning to enter law school, became the precursor to the historic ruling by the apex court.

Provoked by her mother’s retort, Shreya moved the supreme court – barely a couple of days after the arrest.

Shreya, in her early 20s and now in second year of LLB, says, “The two were arrested just for airing their views –which at the time were expressed on TV and newspapers. There were photographs in newspapers showing Mumbai being completely shutdown. It was like a bandh.”

Shreya was in for a shock when she finally read the text of the law. “I read the section which was shocking. It was such a vague section. It said any comment or post on a website or social media that was “annoying, grossly offensive, [or of] menacing character” could land you in jail. But these terms are, says Shreya, “so innocuous and vague that they can’t be defined”.

The fact that the section, widely perceived to be arbitrary, had not yet been challenged by anyone was no less shocking for her. “It all started in 2012 with the arrest of these two girls and there were two more arrests, one of a professor in West Bengal and another of a businessman from Puducherry. These arrest were widely publicised in media and criticised by civil society, still the section was misused blatantly.”

When she filed the petition, the then chief justice of India Altamas Kabir observed that the court had been wondering why no one had approached it on this matter.

Reiterating her reason for the public interest litigation (PIL), she says, “Section 66A was deeply misused. Just a one month before the judgment was pronounced, a school boy was arrested in Uttar Pradesh.” She is equally aghast at the fact that the elected representatives failed to use their discretion. “The fact is that Section 66A was passed in seven minutes along with several other Acts in 2010. It is not one political party that has failed us. Multiple governments have used it.”

She refrains from questioning the intent of lawmakers, but adds, “The judgment says that there was no mala fide intent. Legislative intent might have been good. They said it was meant to prevent spamming and so on. But there is a difference between working theoretically and working practically. In a country like ours with so much diverse opinion it is obvious that someone will find something or the other annoying. But then it does not mean that you will persecute someone by sending her to jail for three years just because you don’t like what she said.”

She argues that the core of the problem is that law-making has to keep up with the digital age. “Our legislatures cannot be lazy. With the advent of the internet, a whole new category of crime has been invented like identity theft, credit card theft and cyber bullying. You cannot act lazy and make blanket provisions like Section 66A, which gags free speech. You have to make specific laws for crimes. I am not saying you leave internet unregulated, but the regulation and restrictions should be reasonable.”

Then how do we regulate malicious and illegal content? Shreya feels that there are provisions in the Indian penal code (IPC) to deal with serious crimes like hate speech, incitement and internet bullying. Further, she says social media as a ‘united front’ is sort of self-regulated. “There is a mechanism. You can report any wrong content and appropriate action always follows. I have used it. I reported [mala fide] content and it was removed within 24 hours.”

Not sure what shape her activism would take, she quips, “I never saw this petition as activism. I strongly felt for this issue, so filed the PIL. At present I want to focus on my studies.”

But one thing she is sure about is, “If this law would have stayed ideally one half of the population would be in jail as the other half might not agree to what they believe.”

shishir@governancenow.com

(The article appears in the April 16-30, 2015, issue)