Bharadwaj’s revelation has derailed BJP’s approach to Section 66A

The statement of H R Bharadwaj that Section 66A was deliberately misused by Congress government has suddenly given a twist to the discussions with BJP becoming more aggressive in defending the current Supreme Court verdict for scrapping Section 66A. BJP spokesperson in Times Now is saying that BJP had opposed the introduction of specific words in Section 66A which has been objected to by the Supreme Court today.

Times Now has also been stating without knowing the facts that the authors of the section 66A were perhaps interested in protecting the interests of Sonia Gandhi and Congress leaders.

But as a continuing observer of the developments of ITA 2008 right from 2005 when Mr ManMohan Singh agreed to order a review of ITA 2000 after the issue, I consider that it is not correct to say that Section 66A was introduced to protect any body in Congress/UPA. However once the law was available, Mr Kapil Sibal perhaps thought of using it to take control of Social Media at different points of time leading to the last elections.

The law itself was credited to the standing committee and we have appreciated the law as drafted at that time for the security intentions it displayed. The exact wordings were of course a matter for drafting experts to take care and they did refer to other countries and picked up the required clauses.

Wordings for Section 66A itself was taken from the UK law and was verbatim lifted. The passage was done in a few minutes without discussion which was also the case when ITA 2000 was passed earlier. At the time ITA 2000 was passed, Kapil Sibal was in the opposition and said section 80 was draconian. When ITA 2008 was passed, A Raja was the IT Minister and Kapil Sibal was defending it. At both times he might be doing it as a politician and not as a lawyer who understood the provisions. Let’s neither give the politicians credit or discredit for the section 66A.

I wish politicians who donot know the legislative history of Section 66A donot make statements on TV and look to collect brownie points as champions of freedom of speech. I request Mr Sambit Patra not to make wrong statements and also drag Mr Arun Jaitely to say some thing in support of the squashing of Section 66A.

The fact is that the law was misused for political reasons and Section 66A was only an excuse. It worked because Police, Politicians and as we now know even the Judiciary did not understand Section 66A and thought that it could be applied for the kind of cases they came across in Palghar etc. In the bargain they tainted the section so much that today everybody believes that it is  “Draconian”. Reality is that in comparison, there are more draconian clauses both in ITA 2008 as well as IPC. If Police and Politicians want to misuse them, they can very well do so. What the current Supreme Court  decision has done is that a genuine deterrant to be used in genuine cases has been removed and this will cause more problems in the society in future.

If BJP does not want to complicate things further, it must shed it’s reservations and ask for a review of the Section 66A squashing decision by a larger bench of Supreme Court. They must be prepared to listen to the experts who are confident that Section 66A was not meant to curtail freedom of speech and was to be addressed only in cases of “Messages” and not for publishing of content. Perhaps T.K.Vishwanathan and Gulshan Rai will be having a good knowledge about the legislative intent behind the section and should be brought in as witnesses in this regard.

The entire decision of the J Chelameshwar-R F Nariman verdict was based on the presumption that Section 66A was applicable for publishing of content which was wrong. Since the premise itself was wrong, the verdict deserves to be over turned.

Passing an amended law is a long drawn affair and the void created by the removal of Section 66A needs to be bridged at the earliest.

I therefore request BJP to take suitable steps in this regard to file a review petition and not try to hide behind the myth that this Supreme Court decision is in support of freedom of speech and any move to oppose it, will have adverse public opinion. At best some TV channels who  does not understand Cyber Laws will keep shouting for a few days and it has to be ignored.


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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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