Cyber challenge

A protest against the IT Act in Bangalore on December 2.-K. MURALI KUMAR

The increasing curbs on social media through controversial legal provisions pose a grave challenge to civil society.

THERE are enough constitutional and legal safeguards in India to guarantee its citizens freedom of speech, but apparently not enough to ensure freedom after speech. On the face of it, the freedom offered by social networking sites to connect, share information, comment, like and participate in conversations, appears above policing and free from publication censorship. But the recent clampdown on social media users who sought to express their opinion on certain matters proves that the government seeks to curtail civil liberties under the pretext of legal provisions.

The new media do not follow the rules of the traditional media, and in the absence of overt and covert restrictions (such as coercion and pressure) do not subject themselves to professionally acceptable norms. Social media sites are unmanageable because of their sheer size and their continuous evolution and expansion. No wonder, the government is concerned about the criticism on its workings on social media. The number of user-data requests made by India to Google is next only to that of the United States. Between January and June 2012, India made 2,319 requests while the U.S. made 7,969 requests. Google complied with 64 per cent of Indias requests, revealing 3,467 user data. The compliance rate in the case of the U.S. was 90 per cent.

The removal requests to Google from India are equally startling. Between January and June, there were 596 requests seeking removal of content pertaining to religious offence, impersonation, privacy and security, defamation, hate speech and adult content, with privacy and security alone accounting for 374 requests. Most of these requests emanated from the executive and the police; some were from the judiciary. Google mostly complied with all the requests.

Instances of threats and intimidation, albeit through legal means, against those who express dissent in social media are meant to silence the critics effectively despite the adverse publicity to the government as a result of ordering police action on them, and put some fear into the vast majority of other users so that they opt for self-censorship, muffling their own voices in order to avoid even the remotest possibility of the state even temporarily invading their privacy. Social media users do not have the resources big media groups enjoy to defend themselves if the government targets them.

The government recently blocked URLs, IMG tags, blog posts, blogs and a handful of websites and Twitter handles, some of them belonging to journalists. The authorities invoked the provisions of Section 66A of the Information Technology Act (ITA) to harass social media users. In April, Ambikesh Mahapatra, a professor of chemistry in Jadavpur University in West Bengal, was arrested for posting a cartoon on West Bengal Chief Minister Mamata Banerjee on social networking sites. In May, two Air India employees were arrested by the Mumbai Police for putting up on Facebook and Orkut content that was against a trade union leader and some politicians. They were in custody for 12 days.

In October, Ravi Srinivasan, a businessman, was arrested by the Puducherry Police for tweeting that Kartik Chidambaram (son of Union Finance Minister P. Chidambaram) appears to have amassed more wealth than Robert Vadra, son-in-law of Congress president Sonia Gandhi.

In November, Shaheen Dhada was arrested for questioning the shutdown of Mumbai following the death of Shiv Sena supremo Bal Thackeray in her Facebook post, which was liked and shared by her friend, Renu, who was also arrested by the Thane Police in Maharashtra.

Section 66A deals with punishment for sending offensive messages through a communication service. Under the provision, any person who sends, by means of a computer resource or a communication device,

(a) any information that is grossly offensive or has menacing character; or

(b) any information, which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will, persistently by making use of such computer resource or a communication device; or

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term, which may extend to three years and with fine.

Initially, Section 66A seemed like an innocuous provision, inserted through an amendment to the Act in 2008. The Amendment Bill, which was introduced in Parliament in 2006, had only the first two sub-clauses under Section 66A. The Standing Committee on Information Technology, in its 2007 report, recommended that the Bill be made more stringent. Thus, subclause (c) was added to the provision, besides increasing the punishment for violation to three years imprisonment from up to two years. A harsh provision thus entered the Bill without anyone realising, at least for three years since its enactment, its mischief potential.

The report of the committee reveals that Section 66A was originally intended to tackle spam, defined as unwanted and unwarranted e-mails. The Department of Information Technology told the committee that subsection (b) of Section 66A and Clause (i) of Section 43 of the Act appropriately addressed the issue pertaining to spam. However, the committee was not convinced, and sought specific provisions to effectively deal with such e-mails in view of the irritation and agony that their recipients go through. The Bill sought to tone down the quantum of punishment for various types of cybercrimes. But the Central Bureau of Investigation (CBI) and industry representatives maintained that in view of their gravity, offences under the Act should be made cognisable.

But the department argued that these punishments were proposed to be rationalised because while penal provisions were necessary to prevent flagrant abuse of the system, care had to be taken so that such provisions did not give occasion for harassment of legitimate users and the common man, who is generally ignorant of the nuances of IT. The departments contention was that since it was not easy to get bail, it proposed to keep offences under the Act non-cognisable. The committee disagreed with the department, maintaining that facilitation of bail to the alleged offenders of cybercrimes could not and should not be construed as a valid reason for reducing the quantum of punishment and thereby making it non-cognisable. The committee also disputed the departments claim that the alleged offenders were not aware of the nuances of IT and that ignorance could not be an excuse for perpetrating crimes.

The committee recommended conferment of powers of interception on the State governments. It recommended that interception should be allowed for prevention of any cognisable offence in addition to the already prescribed grounds. A cognisable offence (listed in the First Schedule to the Code of Criminal Procedure, or CrPC, 1973) is one in which a police officer may arrest a person without a warrant.

Since cybercrimes are a global phenomenon, taking place at lightning speed unmindful of the adverse ramifications they have on all sections of society, the committee urged the department to make cyber offences cognisable.

Thus, subclause (c) became a provision under Section 66A. The amendment to the Bill was moved by Communications Minister A. Raja on December 16, 2008. It was passed by the Lok Sabha on December 22, 2008, and by the Rajya Sabha on December 23, 2008, without any discussion.

Ironically, neither the committee nor the department appears to have understood the inherent inconsistency between the phraseology of Section 66A and Article 19(1)(a) of the Constitution, which guarantees freedom of speech and expression to every citizen. Under Article 19(2), restrictions on freedom of speech are reasonable if they pertain to any of the listed grounds, such as sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

Although Section 66A was intended to be an anti-spam provision, its careless phrasing does not help achieve its objective. The use of or instead of and makes the provision very loose, making it easier for the police to decide whether an alleged offence attracts it. Experts have pointed out many other anomalies in the provision, which are inconsistent with free speech requirements. Words like grossly offensive, menacing character, annoyance, danger, obstruction, insult and injury found in the provision are too general and incapable of precise definition. Even authors of innocent communication through e-mail could be accused of having violated the law.

PUBLIC INTEREST PETITION

Concerned about the widespread abuse of Section 66A, Shreya Singhal, a 21-year-old girl from Delhi, filed a public interest petition in the Supreme Court challenging the sections constitutionality. In her petition, which was admitted for hearing on November 29, she submitted that the phraseology of Section 66A was so wide and vague and incapable of being judged on objective standards that it was susceptible to wanton abuse. She claimed that this provision was capable of wanton abuse in view of the subjective discretion of the police who might invoke it in a cavalier fashion.

She also raised other pertinent issues: Section 41 of the CrPC empowers the police to arrest any person without an order from a magistrate and without a warrant in the event that the offence involved is classified as a cognisable offence under the first schedule to the CrPC. Similarly, Section 156 (1) enables an investigation by the police into a cognisable offence without an order of a magistrate. She pointed out that offences under Section 66A were clubbed with one or the other cognisable offence under the Indian Penal Code, such as Section 505 of the IPC, in order to allow the police to arrest a person booked under Section 66A. Unless there was a judicial sanction as a prerequisite for setting into motion the criminal law with respect to freedom of speech and expression, the law as it stood was highly susceptible to abuse and to the muzzling of free speech, she said.

The petition said, The Supreme Court should use its powers under Article 142 to lay down a guideline that all offences, if they involve freedom of speech and expression, ought to be treated as non-cognisable offences for the purposes of Sections 41 and 156(3) of CrPC and that even for commencing investigation in such matters, an inquiry by a magistrate, before the issue of process, is mandatory.

The very fact that the machinery of criminal law is set in motion against citizens on frivolous grounds amounts to harassment that is inadequately mitigated by the eventual discharge or acquittal. The protection of the fundamental right to free speech necessitates the existence of safety walls at the very threshold of setting the criminal law into motion, it said.

A two-judge Bench headed by Chief Justice Altamas Kabir has allowed the impleadment of Maharashtra, West Bengal, Delhi and Puducherry, besides cartoonist Aseem Trivedi, who was charged with sedition by the Maharashtra government for his caricatures on the Internet, in the case.

Attorney General G.E. Vahanvati submitted before the court that Section 66A was well-intended and modelled on similar provisions in the U.S. and the United Kingdom. He also brought to the notice of the court that the government had amended the guidelines so as to require the clearance of senior police officers for cases to be registered under the section. However, the governments guidelines fall far short of expectations from civil society that the controversial provision should be either amended or repealed.