The recent arrest of Ambikesh Mahapatra, a professor at Kolkata’s Jadavpur University, for emailing a comic strip lampooning West Bengal Chief Minister Mamata Banerjee, highlighted glaring flaws in the laws that made the arrest possible — the Information Technology (IT) Act, its amendments, and the Rules framed for its implementation. The strip was an innocuous mash-up that combined stock photographs of Ms Banerjee and Trinamool MPs Mukul Roy and Dinesh Trivedi with dialogue from Satyajit Ray’s children’s classic Sonar Kella. It was printed in the mainstream press and reproduced on several television channels without any fears that doing so would be actionable. However, it is actionable under several of the stringent provisions of the IT Act (for example, under Section 66A — “causing offence using a computer”), although it quickly went viral on the Web with over two million views as netizens spontaneously protested the over-reaction of the West Bengal authorities.
The original IT Act of 2000 was harsh and, as the Kolkata incident makes clear, the subsequent amendments of 2008 (which were notified in April 2011) offer even wider latitude for misuse. There are many sections that are loosely worded and open to subjective interpretation to harass pretty much anybody who uses the internet. It is even possible that the internet service providers and websites that have unwittingly been involved in hosting that comic strip, or links to it, are liable as “intermediaries”. This is arguably equivalent to prosecuting the postal services for carrying a poison pen letter, or the telecom services for somebody making a prank call. There is indeed a motion in the Rajya Sabha sponsored by MP P Rajeeve to annul the Information Technology (Intermediary Guidelines) Rules 2011 to prevent that sort of absurdity. However, even if these are annulled, plenty of draconian and loosely worded provisions will remain in the Act itself. For example, it raises the concept of “blasphemy”, which doesn’t otherwise exist in Indian law. It legislates the removal of content defined as “objectionable”, “disparaging”, “harassing”, “blasphemous” or “hateful”, and the prosecution of anybody who creates or hosts such content. The definition of each of those words is extremely subjective and discretionary. There is also no easy route of appeal. Already, several lawsuits have been seen in which individuals assert that they’ve been offended by various types of online content. In fact, cases are pending against several social networking sites and web hosts on these grounds. Now, as was inevitable, authorities of the state have got directly into the act.
Once West Bengal has demonstrated the possibilities, other states and the Centre may follow. India has a tradition of argument and free speech. But it also has a tradition of competitive intolerance, and its colonial history has led to the existence of a plethora of 150-year-old laws designed to suppress free expression. Some news reports indicate that Mr Mahapatra, in his role as an office-bearer of a housing society, was locked in a dispute with some contractors. The implication is that the Act has been used to settle old scores. Unfortunately, if such provisions exist, they will be misused in political vendettas. There is an old saying: “If you give a monkey a hammer, it will smash things.” Take away the hammer!