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Challenges Mount Against The IT Act

Following the incident where two Maharashtra girls were arrested for posting a Facebook update by the local police and charged under section 66A of the IT Act, there’s increasing pressure on the government, to check misuse of the IT Act and the ministry of IT has also said that it’s collecting information on cases where the act has been allegedly misused, and intends to decide on making changes to the Act after holding consultation with stake holders. What started as an outcry by a few voices against the IT Rules, has now turned into a campaign challenging the constitutional validity of the Act itself.

While the Palghar incident was not the first one where the draconian provision of the Act was applied, it was the first time that the government acknowledged that the Act was being misused, and was even stifling the right to freedom of expression guaranteed by the Indian constitution, as the Facebook update posted by the girl was just her personal opinion.

This was also the first time that it did not involve someone who was part of the government, unlike previously highlighted cases –  one, where Puducherry businessman-cum-India Against Corruption volunteer, Ravi Srinivasan was booked for a tweet against Union Finance Minister P. Chidambaram’s son Karti Chidambaram, and the other where a Jadavpur University chemistry professor was arrested for circulating a picture spoof on Trinamool Congress boss Mamata Banerjee and railway minister Mukul Roy.

There’s also a common phenomenon in all these cases: the Police has not hesitated from acting in an overzealous manner on the behest of complaints filed by the mighty and powerful. Barring a few incidents, including the arrest of a few individuals who were allegedly harassing singer, Chinmayi Sripada, we’ve not come across cases where the law has been used to actually offer recourse to the common man against cyber abuse.

The other striking thing about the arrests was that the content posted by the individuals was not abusive in nature, and merely reflected their opinion or was based on speculative news reports, at max. Note that we already have defamation laws in place and in cases where someone who is maliciously named, the individual/group can seek recourse; so the need for Section 66A of the IT Act, specially when it’s so vaguely defined, is questionable.

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Communications and IT Minister, Kapil Sibal has now asked his ministry to get information related to cases in which Section 66A of the IT Act has been applied, reports Tehelka . The ministry will decide on the changes to brought in the Act based on the information. Besides that the minister has informed that a meeting of  all the stakeholders has been called on 29th November to get all views and put safeguards. It would be interesting to see if the Ministry decides to make changes in the Act or just ensures that it’s implementation is different, and as suggested by the report, the decision of its imposition is taken by the officer of the rank of Inspector General of Police.

Besides this, Court cases have been filed in the Madras and Allahabad High Courts to challenge the Act’s constitutional validity.

UP Cadre IPS officer Amitabh Thakur and his wife, social activist, Dr Nutan Thakur have filed a writ petition in the Allahabad High Court, Lucknow Bench, for declaring section 66A of the Information Technology Act 2000 as ultra vires as it violates the fundamental right to expression under Article 19(1)(a) and other rights related with life and liberty enshrined in Chapter III of the Constitution, reports The Times of India . In their petition, they’ve raised questions on the definition of terms such as ‘offensive, menacing character, danger, insult’ among others, mentioned in the IT Act, and have said that they’re vague, wide, all-pervasive, confusing, incongruent, slack and ambiguous, with the possibility of being misused and abused and have cited example of the Maharashtra girls, Ravi Srinivasan- Karti Chidambaram and Ambikesh Mahapatra – Mamata Banerjee cases. The hearing of the petition is due on 23 November 2012.

Another public interest litigation petition was filed in the Madras High Court Bench on 9th November 2012, by A. Marx, a human rights activist, challenging the Constitutional validity of Section 66A of the Information Technology Act after Ravi Srinivasan was booked for a tweet against Union Finance Minister P. Chidambaram’s son Karti, reports The Hindu. Marx had also sought an interim direction restraining government officials from invoking the provision and suspending its operation until the disposal of the main case which was to strike down the Section altogether as ultra vires of the Constitution.

The Court has ordered a notice to Union Home Secretary, Law Secretary and Information and Broadcasting Secretary, Chief Secretary and Inspector General of Police in Puducherry to reply to the petition within 4 weeks. The Judge, Justice K.N. Basha did question whether declaring the provision illegal would prevent genuinely aggrieved from seeking recourse. Read more at The Hindu.

We’ve been arguing that terms like offensive, blasphemous, and insulting are very subjective, what’s offensive to one individual/group might not be offensive to another, and a lot also depends on the interpretation.

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Note that there’s a court case in progress for the quashing of the draconian IT Rules 2011 – Shojan Jacob, a Kerala based lawyer, had filed a Public Interest Litigation in the Kerala High Court, challenging the constitutional validity of Rule 4 (intermediaries guidelines) of the IT Rules 2011, and Rules 8 and 16 of the IT Rules 2009 (Procedure and Safeguard for Blocking for access of Information by Public) deeming them as arbitrary, unreasonable, illegal and unconstitutional.

Additional reading:

– Nandita Saikia, in her blogpost argues how Section 66A of the IT Act is not essential to protect women online. On Indian Copyright.

– Also read Indrajit Hazra’s hilarious take on Kapil Sibal’s response to the recent case in the light of his efforts to pre-screen content on social networks. On News Laundry

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