IT Act 66A Is Assault On Freedom of Speech

Amit Malviya

02/12/2012

Southern Region-Patriotic Tweeples' Conference-Bengaluru

Nehrus legacy
May 28, 1951Part of the Indian press, said (Nehru), is dirty, indulges in vulgarity, indecency and falsehood. To teach it manners, Nehru proposed an amendment to Indias constitution that would impose severe restrictions on freedom of speech and expression. He asked for power to curb the press and to punish persons and newspapers for contempt of court, defamation and incitement to an offense. Nehru told Parliament: It has become a matter of the deepest distress to me to see the way in which the less responsible news sheets are being conducted . . . not injuring me or this House much, but poisoning the minds of the younger generation. Nehru said his measure was aimed at Communist and Hindu extremist agitation. His real targets: Atom, Current, Struggle and Blitz, four Bombay-published sensational weeklies which have consistently attacked Nehrus domestic and foreign policy, scurrilously attacked the U.S. [TIME]
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The politics of it..

June 11, 1951A small but determined parliamentary opposition, led by Dr. Syama Prasad Mookerjee, former Minister for Industry, bitterly attacked the amendment. Mookerjee (to Nehru): Youve got 240 supporters in this House, but outside in the country millions are against you.

Nehru (shaking his fists) : [Your] statements are scandalous . . .

Mookerjee: Your intolerance is scandalous . . . Nehru (shouting): Any person who says that this amendment of mine curbs the liberty of the press utters lies . . . As Nehru explained it: We should not only give the press freedom, but make it understand that freedom. There was a lot of doubt whether Nehru himself understood the meaning of freedom. His excuse for requesting the law: the scurrilous outpouring of Indian scandal sheets. But as the All-India Newspaper Editors Conference pointed out: there was nothing to prevent the government from using its new powers against the legitimate press when & if it chose. [TIME]
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The politics of it..

June 11, 1951A small but determined parliamentary opposition, led by Dr. Syama Prasad Mookerjee, former Minister for Industry, bitterly attacked the amendment. Mookerjee (to Nehru): Youve got 240 supporters in this House, but outside in the country millions are against you. Nehru (shaking his fists) : [Your] statements are scandalous . . . Mookerjee: Your intolerance is scandalous . . . Nehru (shouting): Any person who says that this amendment of mine curbs the liberty of the press utters lies . . .
As Nehru explained it: We should not only give the press freedom, but make it understand that freedom. There was a lot of doubt whether Nehru himself understood the meaning of freedom. His excuse for requesting the law: the scurrilous outpouring of Indian scandal sheets. But as the All-India Newspaper Editors Conference pointed out: there was nothing to prevent the government from using its new powers against the legitimate press when & if it chose. [TIME]

02/12/2012

Southern Region-Patriotic Tweeples' Conference-Bengaluru

Fascist streak continues..

Indira Gandhi tried to tame the press during Emergency in 1975-77 Rajiv Gandhi tried to muzzle media with his Press Bill but had to scrap amidst fierce protests. Now Sonia Gandhis Govt wants to regulate the internet, the truly free press in some sense because they believe it caricatures and lampoons popular leaders. Sample this Of the 358 requests sent by GoI to Google for censorship, a whopping 255 pertained to criticism of the Government; only 8 to hate speech and just 1 to National Security !
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Understanding IT Act 66A

The IT Act 2000 was amended in 2008, which got Presidential assent on 5Feb2009 and contained 66A. This along with 7 other bills were passed on 23Dec2008, last day of winter session of the 14th Lok Sabha, in flat seven minutes ! The way the Act is worded, it is ultra vires of the Constitutions Article 19(1)(a), which enshrines Freedom of Speech. As a slight digression, the Amendment of 2008 was so poorly drafted that the IT Rules for Intermediaries, 2011 renders blasphemy a crime in India !
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Deep dive into 66A

66A. Punishment for sending offensive messages through communication service, etc. 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, (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.

02/12/2012

Southern Region-Patriotic Tweeples' Conference-Bengaluru

Deep dive into 66A

Explanation.
For the purpose of this section, terms electronic mail and electronic mail message means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

02/12/2012

Southern Region-Patriotic Tweeples' Conference-Bengaluru

Issues..
Clause (a) of Section 66A uses expressions such as grossly offensive and menacing which are not only impossible to define but also highly subjective by individual standards. Clause (b) prescribes penalties for offences such as annoyance, criminal intimidation, insult and promoting hatred or ill- will between groups. Prescribing the same punishment for annoyance, as well as criminal intimidation, by bundling of disparate terms within the same clause is bound to lead to confusion and misuse. Moreover, most of these offences are already covered under various sections of the Indian Penal Code, 1860 (IPC). As a result, offenders often get booked under both the statues for the same offence.

Clause (c) of the section is meant to be an anti-spam provision but does not do justice to the requirement of either the users or the industry.

02/12/2012

Southern Region-Patriotic Tweeples' Conference-Bengaluru

Further..
In some cases, penalties for the same offences are higher in the IT Act as compared to those in the IPC. Thus, if an offence is committed through an electronic medium such as the internet, it would attract a higher penalty than otherwise. For instance, threatening someone with injury to their reputation through email attracts a penalty of three years imprisonment under the IT Act while the same offence when committed verbally attracts a penalty of two years imprisonment under the IPC (Section 503 and 506). This is inconsistent and wrong. The significance of this change goes beyond the increase in penalty. Under the Code of Criminal Procedure, 1973, offences punishable with a jail term of three years or more are cognizable. This means that a police officer can make the arrest without a warrant. This leaves more discretion to the police officer and makes the Section liable to misuse.

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Southern Region-Patriotic Tweeples' Conference-Bengaluru

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Further..
Our Constitution accords high importance and sanctity to the freedom of speech and expression. Article 19(1) of the Constitution provides people the freedom to freely express their opinion while Article 19(2) empowers the legislature to impose 'reasonable' restrictions on this freedom. Reasonable restrictions can only be imposed in the interest of the sovereignty and integrity of India, the 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. No other grounds qualify. Indias Supreme Court itself has upheld that restrictions on freedom of speech and expression should be narrowly and specifically defined, and it is pertinent to note that some other democracies use the principle of incitement to violence with clear and present danger as the defining guideline for such restrictions.

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Southern Region-Patriotic Tweeples' Conference-Bengaluru

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What we need..
Move from First Amendment to the Indian Constitution "(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the 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."; To the First Amendment to the United States Constitution Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Note: Legal and Constitutional

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Annexure: Reference Material

The Constitution (First Amendment) Act 1951 http://indiacode.nic.in/coiweb/amend/amend1.htm Indias very own First Amendment http://www.niticentral.com/2012/10/indias-very-own-first-amendment.html How Jawaharlal Nehru ended Press Freedom http://www.niticentral.com/2012/10/how-jawaharlal-nehru-endedpress-freedom.html Indira Gandhis Orwellian control regime http://www.niticentral.com/2012/10/indira-gandhis-orwellian-controlregime.html How the media helped Indira Gandhis reign of terror. http://www.niticentral.com/2012/10/how-the-mediahelped-indira-gandhis-reign-of-terror.html Rajiv Gandhis legacy of censoring communication. http://www.niticentral.com/2012/10/rajiv-gandhis-legacy-ofcensoring-communication.html Rajiv appeased Muslims, killed free speech. http://www.niticentral.com/2012/10/how-rajiv-gandhi-appeasedmuslims-at-the-cost-of-free-speech.html Curbing free speech a Congress tradition. http://www.niticentral.com/2012/10/curbing-free-speech-a-congresstradition.html Time to get rid of the First Amendment. http://www.niticentral.com/2012/10/time-to-get-rid-of-the-firstamendment.html Breaking down Section 66A of the IT Act. http://cis-india.org/internet-governance/blog/breaking-down-section66-a-of-the-it-act Virtual menace. http://www.indianexpress.com/news/virtual-menace/1036181/0 IT (Amendment) Bill 2012 to Amend 66A by BJP MP, Shri Bijayant Panda http://bj.panda.name/html/quest_orissa_container.asp?id=665 Why Internet Freedom is vital to Indias Democracy http://www.livemint.com/Opinion/fQNWrp6Zyej2JBe99ARuZP/Why-Internet-freedom-is-vital-to-Indiasdemocracy.html

02/12/2012

Southern Region-Patriotic Tweeples' Conference-Bengaluru

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