When the previous Congress-led government started using section 66A of the Information Technology Act to suppress dissent, it received plenty of flak from the opposition. The Bharatiya Janata Party’s supporters compared the government's actions to strategies implemented during the Emergency and the leader of the opposition Arun Jaitley told Parliament that this amounted to excessive censorship.

But on Tuesday, Jaitley’s government defended the same provision in the Supreme Court.

Although the government did admit that section 66A is prone to “abuse and misuse”, it appears to have insisted the law itself is well-intentioned. This provision in the IT Act that allows users to be imprisoned for using the internet to send any information that is “grossly offensive” or could “cause annoyance or inconvenience” to the person who has received it. The intent of the law initially was to stop the spread of spam messages in the country, which is why it included the references to annoyance and inconvenience.

Instead, the section has been used to arrest a cartoonist who made fun of Parliament, Air India employees who made Facebook and Orkut comments against rival trade union leaders, a businessman who put out an allegedly defamatory tweet about the son of Congress leader P Chidambaram and two young women who commented on Facebook questioning the shutdown of Mumbai following the death of Shiv Sena chief Bal Thackeray.

All of these incidents prompted Jaitley at the time to question the language of section 66A, which he said was written in a way where the expectation was that the provision would be misused. Saying that the 1975 Emergency would have been a fiasco if internet had been around, Jaitley questioned whether simply “offense” or “annoyance” or even “defamation” should be a reason to take  information off the internet. The BJP's supporters likened the provision to the Emergency and even had the hastag #Emergency2012 trending at the time.

A clutch of organisations and individuals have since taken this matter to court, insisting that Section 66A along with a number of other provisions in the IT Act are unconstitutional. Last week, the Supreme Court asked the new government to clarify its stand on the matter, warning that it could easily stay the provision unless the state’s stance was made clear.

“Heavens are not going to fall if the provisions are stayed... because this country has been in existence for the past 60 years without these provisions," the Supreme Court said. “Either you file the affidavit within a week or we will stay the operation of the provisions until we dispose of the matter.”

Although the government has not begun arguments in the matter yet, preferring instead to wait until all the petitioners have gone through their points against the IT Act first, initial submissions made by counsel on Tuesday indicated that it would be defending the provision.

“What it did make clear on Thursday, as indicated by stray submissions, is that it is going to defend the constitutionality of the provisions and it’s not going to consent to any order, even after a change,” said one of the lawyers in attendance.


The government is expected to explain its full stance later in the week, once the remaining petitioners have made their arguments against the IT Act. It has reportedly also filed an affidavit in the court asserting its right to issue “take down” notices to internet service providers, saying this is a necessary safeguard against those being defamed online.