A few minutes ago, the Supreme Court delivered a judgement striking down Section 66 A of the Information Technology Act, 2000. This was in response to a PIL that challenged the constitutionality of this provision. In light of this, we present a background to Section 66 A and the recent developments leading up to its challenge before the Court. What does the Information Technology Act, 2000 provide for? The Information Technology (IT) Act, 2000 provides for legal recognition for transactions through electronic communication, also known as e-commerce. The Act also penalizes various forms of cyber crime. The Act was amended in 2009 to insert a new section, Section 66A which was said to address cases of cyber crime with the advent of technology and the internet. What does Section 66(A) of the IT Act say? Section 66(A) of the Act criminalises the sending of offensive messages through a computer or other communication devices. Under this provision, any person who by means of a computer or communication device sends any information that is:
Over the past few years, incidents related to comments, sharing of information, or thoughts expressed by an individual to a wider audience on the internet have attracted criminal penalties under Section 66(A). This has led to discussion and debate on the ambit of the Section and its applicability to such actions. What have been the major developments in context of this Section? In the recent past, a few arrests were made under Section 66(A) on the basis of social media posts directed at notable personalities, including politicians. These were alleged to be offensive in nature. In November 2012, there were various reports of alleged misuse of the law, and the penalties imposed were said to be disproportionate to the offence. Thereafter, a Public Interest Litigation (PIL) was filed in the Supreme Court, challenging this provision on grounds of unconstitutionality. It was said to impinge upon the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. How has the government responded so far? Subsequently, the central government issued guidelines for the purposes of Section 66(A). These guidelines clarified that prior approval of the Deputy Commissioner or Inspector General of Police was required before a police officer or police station could register a complaint under Section 66(A). In May 2013, the Supreme Court (in relation to the above PIL) also passed an order saying that such approval was necessary before any arrest is to be made. Since matters related to police and public order are dealt with by respective state governments, a Supreme Court order was required for these guidelines to be applicable across the country. However, no changes have been made to Section 66 A itself. Has there been any legislative movement with regard to Section 66(A)? A Private Member Bill was introduced in Lok Sabha in 2013 to amend Section 66(A) of the IT Act. The Statement of Objects and Reasons of the Bill stated that most of the offences that Section 66(A) dealt with were already covered by the Indian Penal Code (IPC), 1860. This had resulted in dual penalties for the same offence. According to the Bill, there were also inconsistencies between the two laws in relation to the duration of imprisonment for the same offence. The offence of threatening someone with injury through email attracts imprisonment of two years under the IPC and three years under the IT Act. The Bill was eventually withdrawn. In the same year, a Private Members resolution was also moved in Parliament. The resolution proposed to make four changes: (i) bring Section 66(A) in line with the Fundamental Rights of the Constitution; (ii) restrict the application of the provision to communication between two persons; (iii) precisely define the offence covered; and (iv) reduce the penalty and make the offence a non-cognizable one (which means no arrest could be made without a court order). However, the resolution was also withdrawn. Meanwhile, how has the PIL proceeded? According to news reports, the Supreme Court in February, 2015 had stated that the constitutional validity of the provision would be tested, in relation to the PIL before it. The government argued that they were open to amend/change the provision as the intention was not to suppress freedom of speech and expression, but only deal with cyber crime. The issues being examined by the Court relate to the powers of the police to decide what is abusive, causes annoyance, etc,. instead of the examination of the offence by the judiciary . This is pertinent because this offence is a cognizable one, attracting a penalty of at least three years imprisonment. The law is also said to be ambiguous on the issue of what would constitute information that is “grossly offensive,” as no guidelines have been provided for the same. This lack of clarity could lead to increased litigation. The judgement is not available in the public domain yet. It remains to be seen on what the reasoning of the Supreme Court was, in its decision to strike down Section 66A, today.
The Lok Sabha has passed the bill to revise the salary of members of parliament. Much of the debate in the media has been on the wealth of current MPs and the lack of accountability. It is important to focus as well on structural issues related to remunerating legislators. Under the bill, the base salary of MPs is being raised to Rs.50,000 from Rs.16,000 per month. The daily allowance paid to MPs when they attend parliament is being hiked to Rs.2,000 from Rs.1,000. The constituency allowance is being increased to Rs.45,000 per month from Rs.20,000 and office expenses (for staff, stationery and postage) to Rs.45,000 per month from Rs.20,000. Pension for former MPs will be Rs.20,000 per month instead of the present Rs.8,000. Other than these, MPs get accommodation in Delhi, which varies from a hostel in Vitthalbhai Patel House to two-bedroom flats and bungalows, all in central Delhi. MPs get reimbursement of electricity, water, telephone and internet charges. They (and their family) are also reimbursed for 34 one-way air tickets from their constituency to Delhi. In a parliamentary democracy, compensation for legislators should be sufficient to ensure their independence and autonomy. It should attract professionals who can devote their full time to legislative work. There should be a sufficient support system to enable legislators perform their duties effectively. There are mainly three issues that need to be resolved while fixing the compensation package for legislators. First, MPs fix their own salaries and allowances, which results in a conflict of interest. Second, every time the salary is revised upwards, there is an adverse media and public reaction. The outcome is that MPs' salaries are significantly lower than that for any other position of similar responsibility in the public or private sector. The low salaries may deter honest persons, without other income sources, from contesting elections. Third, reimbursements of office expenses are classified as 'allowances'. Thus, expenses for office staff, telephone charges, etc. are often seen as part of their compensation. Contrast this with the treatment for government or private sector employees. The costs of office support staff, rental, communication and travel costs are not counted as their salary or perks. The process in India is similar to that in some countries. The US Congress and the German Bundestag determine their own salaries. There are two alternative approaches seen in some other democracies. Some countries appoint an independent authority to determine salaries. Some others peg the salary to that of public officials. For example, New Zealand has a remuneration tribunal which is tasked to fix salaries based on being (a) fair relative to levels of remuneration elsewhere; (b) fair to person being remunerated and the taxpayer; (c) adequate to recruit and retain competent persons. In Canada, a commission is appointed after every general election and salaries are then indexed to the federal government's annual wage rate index. Australia has a remuneration authority that links the salary to that in the Principal Executive Office. In the UK, the Senior Salaries Review Board determines salaries, which are then voted upon by parliament. The Scottish parliament indexes its salaries to that of British MPs. In France, the salary of the legislator is the average of the highest and lowest paid official in the seniormost level of the government. There were two distinct themes during last week's Lok Sabha debate. Several MPs discussed structural issues. Some MPs - L.K. Advani, Ramachandra Dome, Sanjay Nirupam, Shailendra Singh and Pinaki Misra - suggested that the government establish an independent commission for determining salaries. Advani pointed out that a decision to that effect had been taken in an all-party meeting held by the Speaker in may 2005 and demanded that the government announce the formation of such a commission before the end of the current session of parliament. Some MPs - Dhananjay Singh, Sanjay Nirupam and Shailendra Kumar -- focussed on the need for support structures such as office space, research staff and assistants in the constituency. They felt that these would help MPs examine proposed laws and rules and monitor the work of the government. Nirupam and Misra suggested that MPs' salaries be linked to performance; salaries should be cut for any time lost due to disruption. Some MPs highlighted the need for pension and accommodation for former MPs. Sharad Yadav, Raghuvansh Prasad Singh and Sansuma Khunggur Bwiswmuthiary requested that the pension be raised to Rs 25,000 per month. Yadav and Bwiswmuthiary also said that former MPs be allocated residential accommodation in Delhi. The bill will next be discussed in the Rajya Sabha. The government agreed that there is merit in forming an independent commission. It is however uncertain whether the government will accede to Advani's demand that the commission be announced in the next couple of days. - M.R. Madhavan This column has been published by IANS today.
