The genesis of a draconian section

Bad laws pave the way for worse ones

You only have to look at Section 66A of the Information Technology (IT) Act 2008 to realise that it is so badly worded that it not only permits draconian abuse by the government but allows individuals to get fellow citizens arrested for merely sending an electronic message that they consider grossly offensive. Don’t take this blogger’s word for it. Read it yourself.

It is obviously ultra vires of the Constitution’s Article 19, which enshrines freedom of speech as a fundamental right. If a statute renders “blasphemy” a crime in the Republic of India—as the IT Rules for Intermediaries, 2011, which draw their authority from the IT Act, have done—then it doesn’t take a legal genius to notice that a lot of things have gone ultra vires of the Constitution. The higher courts ought to strike it down when the matter comes up for hearing in a few public interest litigations that are in the works.

The question is how did this appalling section make it into the statutes in the first place? Here’s where it gets murky. By all accounts, the IT Act was sought to be amended in 2006, when Dayanidhi Maran was the IT minister. The concern at that time was over hacking and circulation of covertly-shot pornographic videos on mobile phones. An expert committee, of which Kiran Karnik, then the chairman of NASSCOMM was a member, recommended changes to the Act. In its Summary Report it said:

“Language of Section 66 related to computer related offences has been revised to be in lines with Section 43 related to penalty for damage to computer resource. These have been graded with the degree of severity of offence when done by any person, dishonestly or fraudulently without the permission of the owner. Sometimes because of lack of knowledge or for curiosity, new learners/Netizens unintentionally or without knowing that it is not correct to do so end up doing certain undesirable act on the Net. For a country like India where we are trying to enhance the positive use of Internet and working towards reducing the digital divide, it need to be ensured that new users do not get scared away because of publicity of computer related offences. Section 43 acts as a reassuring Section to a common Nitizen (sic). IT Act in order to ensure that it promotes the use of e-commerce, e-governance and other online uses has been cautious not to use the word cyber crime in the text.” [Expert Committee’s Summary Report at MCIT, doc]

This, however, does not sound like an explanation for the wording of Section 66A. That’s because it explains the Expert Committee’s draft of Section 66, which is very different from what eventually went into the amendment.

Somewhere between then and the report being tabled in the Lok Sabha for vote, during Andimuthu Raja’s controversial tenure IT minister, the wordings were changed. We do not at whose behest these changes were made. We do not know why. The Union Cabinet and the Ministry of Communications and IT are accountable, of course, but there is no transparency at all on the motives and the actors behind these changes. If there were national security reasons, they should at least have been mentioned as reasons. Without transparency, we will not be wrong in assuming that the draconian measures were intentionally introduced to stifle free speech and target political opponents of the parties in power. CIS India’s Pranesh Prakash has more on where they got the wording from in his detailed deconstruction of the offending section.

There’s worse.

Shouldn’t one of the hundreds of members of parliament noticed this section for its potential abuse, and flagged the issue? Shouldn’t the parties in Opposition, from the BJP to the Communists to the various regional parties, held the Government’s feet to the fire? After all, that’s what the parliament is for. How could this Bill make it past the two houses of Parliament, where there still are many individuals with the knowledge, inclination and position who could have intervened? Well, because it was passed in mindless haste at the fag end of the 2008 Winter Session of Parliament, when eight bills were passed in a mere seven minutes!

This happened because of the anti-defection laws introduced in the 1980s has turned Parliament from a debating chamber to a puppet theatre where the MP’s strings are pulled by the party leaderships. Bills are passed more through political deal-making between the party leaderships than through debate. It was not always like this. It changed because of one bad law. So bad is that law that it is hard to change it, because changing it requires the consent of the very party leaderships that it will disempower. Shanti Bhushan, now associated with India Against Corruption, was one of its drafters. It was enacted by the Rajiv Gandhi government.

This begs the question. How seriously can we take the laws made by a parliament that overlooked such a flagrant assault on our fundamental rights? The legitimacy of every single law, every single section made by this parliament is suspect. That does not mean citizens can disregard them. It means citizens ought to scan every bit of legislation going in and coming out of parliament with extreme diligence. This is where the work of neutral research bodies like PRS Legislative Research becomes extremely useful. It’s out there, for those willing to pay attention and act.

Parliament must redeem itself. If it wants to restore its credibility, parliamentarians should act in ways that corrects their big mistake. They must get rid of Section 66A in its entirety.

Related Link: See what Kiran Karnik says in on NDTV 24X7’s We The People show, where I was also a panelist.

Surely you’re joking, Mr Mukherjee! (Beijing’s thanks edition)

China called in the Indian ambassador to say thank you…at 2 am

Replying to a question in parliament, Foreign Minister Pranab Mukherjee stated that that business of the Chinese government waking up Ms Nirupama Rao at an ungodly hour was to express its “appreciation at the prompt action taken by the (Indian) government” in apprehending Tibetan protestors who had tried to enter the Chinese embassy in New Delhi.

Diplomats lie for their country in foreign capitals. Mr Mukherjee lies for another country in his own capital. No amount of concern for maintaining good relations with China demands this kind of cravenness.

And MPs can’t criticise the Army chief?

Karan Thapar’s latest hatchet job is on Jaswant Singh

There are many good ways to argue that politicians should not criticise Army chiefs. But it’s an untenable argument to make in a democracy. It is especially untenable when the criticism comes from the Leader of the Opposition in the Rajya Sabha and is made in parliament. It sounds like an argument that even General (retd) Musharraf will find it difficult to make today across the border in Pakistan. Be that as it may, it is possible to make such an argument with decency, decorum and respect for the politician and the army chief.

Karan Thapar’s argument though is marked by sarcasm towards Jaswant Singh on the one hand, and an attempt to play to the stereotype of military officials being above reproach on the other. The issue was Mr Singh’s criticism of General Deepak Kapoor’s comments on the India-China border dispute (see The Catapult). Given China’s insincerity over resolving the border dispute, it would have been amiss for parliament to give General Kapoor’s injudicious characterisation a pass. By placing objections to the army chief’s formulation on parliamentary record, Mr Singh provided a back-stop in border negotiations. If anything, it was an example of what a responsible Opposition should be doing in parliament. By playing bad cop, Mr Singh saved the government from having to clarify General Kapoor’s remarks.

Mr Thapar, though, should be free to disagree. But sarcastically referring to Mr Singh as ‘Major’ Singh demonstrates nothing more than spite. Jaswant Singh, a former army officer, has never used his military rank in his political life. And indeed, in his autobiography, he writes “My commissioned service in the Army of just about nine years, 15 December 1957 — 22 November 1966, has no place in this narrative”. To cast Mr Singh’s criticism as that of a Major against a General is excessively flippant, excessively spiteful and utterly misleading.

Mr Thapar pulls out a ‘grand argument’ to support his diatribe against Mr Singh: that politicians generally belittle military leaders. Instead of providing meaningful evidence in support of this, all Mr Thapar tells us is that Field Marshal Sam Manekshaw has not been considered for the Bharat Ratna! Perhaps being promoted to the nation’s only field marshal while still in service, and being decorated with the country’s second highest civilian award is not recognition enough, but Mr Thapar makes an unlikely champion for Sam Bahadur. For it was Mr Thapar who broadcast Gohar Ayub Khan casting aspersions on Field Marshal Manekshaw’s integrity. Mr Thapar had then followed it up with an insinuating op-ed in the Hindustan Times. (Journalists, Mr Thapar might contend in his defence, are only looking for a story, the sensational the better. Journalists, Mr Thapar might also contend, need not bother with the ‘dignity’ of the Army chief’s office. Those virtues are for politicians. He’s will be right about journalists, but wrong about politicians.)

Yet, the ‘grand argument’ is a bogey in this case. The issue boils down to, specifically, whether it was inappropriate of Mr Singh to criticise General Kapoor’s comments about the border dispute. And in general, whether it is inappropriate for MPs to criticise military officers in parliament. Even Karan Thapar can’t reasonably make this argument. Hence, perhaps, the sarcasm, spite and misleading framing.

Related Links: The Catapult has two posts on the topic; Pragmatic Euphony has a post on Jaswant Singh’s remarks.