In bringing back 66A, warnings from Turkey, Russia
Jadavpur University professor Ambikesh Mahapatra is still anxious a month after the Supreme Court struck down 66 A as unconstitutional.On April 27, his lawyer will appeal in a Kolkata court that a chargesheet filed against the professor on the basis of Section 66 of the Information Technology (IT) Act be withdrawn.
Concurrently, in Goa, the counsel for shipping professional Devu Chodankar expects no further police action against his client, who was arrested in June 2014, for posts against the prime minister on his Facebook page. “If Modi is elected as PM this election, Christians will lose their identity in South Goa,” alleged his posts. The police have not yet filed a chargesheet against the Goan, although they did book him under 66A and a clutch of other sections of the Indian Penal Code.
The Supreme Court’s overruling of Section 66A, which sought jail terms of up to three years for posts or messages that were “grossly offensive or menacing” or “causing annoyance or inconvenience” was welcomed by free-speech advocates.66 A was open to wide interpretation and was used to intimidate people who posted anything negative online -- for instance, against a company’s service or against political leaders.
Unfortunately, there are indications the government may not let the law fade away into legal oblivion. The government is believed to be mulling 66A in clearer form to deal with posts that are a threat to “national security”. The logical question which arises is, when does dissent threaten national security?
Many governments arm themselves with cyber-laws that do not draw a line between dissent and terrorism. The power of social media in organising uprisings or protest marches was seen in the Arab Spring and the Anna Hazare sit-ins, and, therefore, online dissent is particularly frowned on by governments across the world.
An indication of the sweeping powers available to governments that crack down on online dissent comes from Turkey and Russia, both ‘supposedly’ democratic countries. Russia has, among other crackdowns, prosecuted a blogger questioning corruption and put dissident rock band Pussy Riot in jail for their online protest videos. It also has strict laws on blogs and has blocked opposition websites.
When protesters gathered in Istanbul in 2013, Turkey’s prime minister burst out against Twitter. “To me, social media is the worst menace to society,” said Recep Tayyip Erdogan, then prime minister and now president of Turkey.
Paris-based non-profit Reporters Without Borders has not placed India too high above Russia and Turkey in its 2015 Press Freedom Index; India is ranked 136th, Turkey 149th and Russia 152nd.
“Democracies often take liberties with their values in the name of national security,” said the report. “Faced with real or spurious threats, governments arm themselves routinely with an entire arsenal of laws aimed at muzzling independent voices. This phenomenon is common to both authoritarian governments and democracies.”
While the government mulls a new variant of 66A, two things have been forgotten: that there is no clear evidence or data that the section was ever used for fostering terrorism; and that the original remit of the law’s most dangerous section (Part c of 66A) was to stop spam, according to a paper written by Pranesh Prakash, Policy Director at the Centre for Internet and Society, a Bangalore-based advocacy group.
India-Spend identified about 20 high-profile cases where the law was used to crush dissent, among them Mahapatra, Chodankar, and the case of two teenagers in Maharashtra arrested for their Facebook post-criticising a shutdown in Mumbai after the death of Shiv Sena founder Bal Thackeray.
None of these cases involved terrorism. A cross-section of lawyers and activists who fought 66A said it was almost always used against common people. Lawyer N.S. Nappinai said the absence of 66A law is not a loss to policing of the cyber world.There are more unpublicised cases, with some newspapers reporting that some 500 cases would now be closed down in Kerala alone, due to 66A’s repeal.
Another portion of the IT Act, section 66F, is well-equipped to deal with cyber terrorism, while the 155-year-old Indian Penal Code (IPC) has provisions to deal with religious incitement and the spread of messages that could incite communal riots, such as morphed pictures of gods.
So strict is 295A of the IPC, the provision that guards religious feelings with jail terms, that just the threat of it has been used to ban books, most famously to get book publisher Penguin India to pulp ‘The Hindus’, a book by US Indologist Wendy Doniger. “The Indian Penal Code, and in particular section 295A of that code, will make it increasingly difficult for any Indian publisher to uphold international standards of free expression without deliberately placing itself outside the law,” Penguin said last year in its defence, after an outcry on its decision to withdraw the Doniger book.
The danger of 66A was not just the law itself but also that it was used to invoke colonial-era sections of the IPC, such as those that covered charges of sedition.“If they bring 66A in a different avatar, they have to be specific, what are they trying to do?” said Nappinai, who explained that only cyber-bullying and hoax calls seem to be out of the purview of existing laws.
Cyber crime and cyber security are complex animals, ranging from threatening e-mails, such as the one sent to RBI Governor Raghuram Rajan, to hacked government sites or even a DDOS attack on a private company website, such as Sony, in the U.S. from outside the country’s borders.
The US government’s position is that such hacking highlights the need for better cyber security laws, although critics wrote that the hacking had more to do with lax online security infrastructure. As many as 4,356 cases of cyber crime were registered under the IT Act; another 1,337 under the Indian Penal Code, said a 2013 report by the National Crime Records Bureau. A Bureau official, requesting anonymity since he is not authorised to talk to the media, said new data would show cyber crime by the laws used. Such data should help the government decide if it needs a new law. In many cases, existing laws are enough. For instance, cyber-stalking, not covered when 66A came into being, is now provided for by the radically stricter anti-rape law of the Criminal Amendment Act 2013. IANS