The protests were so energetic after two young women werearrested for posting a status update on Facebook in the wake of Shiv Senasupremo Bal Thackeray, questioning the Mumbai bandh enforced by the Sena, thatthe reaction was as good as a foregone conclusion. Only, it came with a prefix:kneejerk.
For the public, it was a bit of a déjà vu, as thegovernment, after suspending Thane superintendent of police (rural) RavindraSengaonkar and senior inspector Srikant Pingale of Palghar police station, cameout with a “guideline”, purportedly to ensure the common internet user is notharassed by Section 66A of the IT Act.
Within days, as the online protests hit the streets, thefront pages and the entered the raucous television studios, communications andIT minister Kapil Sibal mandated that a person can be arrested under IT Actonly after approval of a police officer of the rank of a deputy commissioner ofpolice or an inspector general. Sibal reportedly introduced this measure tomake the police think twice before making an arrest under the Act.
So how effective are these guidelines?
Zilch, according to legal experts. Senior Supreme Courtlawyer and cyber crime expert Pavan Duggal said the guidelines serve no purposeand are only a cosmetic measure.
“A guideline to vest the power to take action under Section66A of IT Act with IG or DCP will not serve any purpose,” he said. “Sections 78and 80 of the Act (already) clearly empower an officer not below the rank ofdeputy superintendent of police (inspector) to register and investigate a cybercrime (case) and also to arrest a suspect without warrant.
“Such powers cannot be curtailed or overruled by way of anexecutive order, as it would be ultra vires an Act of Parliament.”
According to Duggal, it is the law in its entirety that isthe problem. “The Act would have to be amended to protect civil rights ofpeople,” he said.
Under Sec 66A, one can be imprisoned for up to three yearsif he/she sends information deemed “grossly offensive” and “menacing incharacter” from a computer. One does not need to be a legal eagle to figure outthis directly impinges on civil right to freedom and expression guaranteed bythe Constitution under Article 19(1).
High Court lawyer and cyber law expert Vivek Sood is not abig fan of the guidelines either. “The guideline may have been adequate in thewisdom of the ministers, and it may also help people with vested interest inretaining the provision,” he said. “Though an IG may be considered to be moreresponsible, but even he forms part of the same police force and may act at aminister's behest.”
According to Sood, “Amendment of the Act as the guide is nota sufficient check for wrongful application of Section 66A.”
Civil society, Net activists up in arms
According to civil society and internet activists, theguidelines are only a way to fool the people; they demand an amendment to theAct. Why would you give arbitrary guidelines for an already arbitrary law,which gives unlimited power to the police and the state to curb an individual’srights to expression, they are asking.
Pranesh Prakash of the Centre for Internet Society said,“The long-term solution lies in drastically amending Sec 66A to bring it inline with the Constitution, reducing its grossly disproportionate penalty (oreven making it a civil offence). If it is kept a criminal offence, it should bemade 'cognizable' (requiring an arrest warrant).”
Osama Manzar from the Digital Empowerment Foundation said:“I would like to understand whether the government has any regulation forpublic places in real life, where people spend time and speak to each other.Why is the social media being taken so seriously?”
Parminder Jeet Singh of IT for Change Foundation, however,said he is not averse to regulation per se. An efficient regulation, he said,helps ensure freedom of speech and expression, and not the other way round.“There is no problem with regulation. Sometimes regulations are needed toprotect freedom,” Singh said.
Prabir Purkayastha of Software Freedom Movement also saidthere is “no problem” in regulating social or any other media but with a caveat” “till the time it is within the constitution. The problem begins when itoverrides my constitutional right.”
Anja Kovacs of Internet Democracy Project said there shouldnot be different, or stronger, laws for the internet, a concern also expressedby Manzar.
Since the enactment of IT Act in 2009, internet has grown inleaps in bounds. It has become a second nature for a large section ofpopulation. In such a scenario, Sibal and company would need to pay a bit moreattention than make pat ‘guidelines’ in an effort to strike the right balancebetween not impinging on people’s freedom and providing effective governance incyber space.
It’s a tightrope walk, and the world is watching.
