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Why Parliament Passed The IT Act Without Debate – Ajit Balakrishnan

Editor’s Note: While there is a call for Section 66A of India’s IT Act 2008 (amended), which places curbs on free speech, we believe the entire act, passed without debate, needs to be revisited. Our parliamentarians, some of whom are now calling for Section 66A to be changed, did nothing then. In that context, here’s an excerpt from Rediff CMD Ajit Balakrishnan’s book The Wave Rider, which gives some context on the events that led to the IT Act 2008being passed in parliament without debate.

‘Are you the boss of this company?’ demanded a voice on the phone one morning in September 2006. I acknowledged that I was the head of the company which ran the e-mail service he named, and asked him who he might be.

He identified himself as an inspector at a police station in one of our state capitals and complained that he had given a list of e-mail accounts to be ‘tracked’ and forwarded from the police to my staff, but that they were insisting he produce the required letter from the state’s home secretary authorising him to make such a request.

‘This is a national security matter,’ he said. ‘I can’t wait for the Home Secretary’s letter. Please do the needful right away.’

Running one of the more popular e-mail services in India puts you in that hazy zone between a private-sector business and a public utility. Millions of Indian citizens were abandoning inland letters and postcards and turning to e-mail. They valued its instantaneous delivery, the ease of accessing the account and the national and international reach.

Unfortunately, conspirators of various hues also recognise these benefits: Religious fundamentalist groups, communist insurgents, bank defrauders and even straying spouses. Jealous husbands wanting to check their wives’ e-mail are the easiest to deal with: A form letter spelling out the process (‘Please file a police complaint and get the police to make the request to us to open your wife’s e-mail box’) usually ended this.

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Employers wanting an employee’s e-mail opened after the employee threatened to expose their supposed wrongdoings are also dealt with easily this way. We normally never hear from them again.

Dealing with police requests is another matter. One part of you, as a law-abiding citizen, wants to comply with the request immediately. Another part, worrying about the civil rights of citizens, makes you insist that the police produce the necessary approvals.

We were usually quite content to play this routine out — the police inspector sending us a list of names and e-mail IDs to track, us politely asking for the home secretary’s authorisation, which would come a few weeks later with some names dropped from the original list.

This time, the list of names the state government wanted watched contained the name Gail Omvedt. I recognized her name; she is an American-born sociologist active in movements in support of low-caste Dalits and is nationally known as an activist and a writer.

I suspected that the local police had asked us to monitor her e-mail account probably not because there was any reason to suspect her of criminal activity, but because they did not approve of her political opinions.

The ethical dilemma of choosing between the national security needs of our country and the civil rights of an activist who had devoted her life to tackling the centuries-old injustices in India was too difficult for me to handle on my own, so I consulted our editor, Nikhil Lakshman. We decided to go and meet a retired judge of the Supreme Court of India, less for legal advice and more for moral guidance.

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We sat in silence in his chambers as he carefully studied our account of the matter. The early morning light streaming in from the window behind him put him in silhouette and lent a sepulchral quality to the setting. How many such moral dilemmas must he have faced in his long and illustrious career on the nation’s highest bench, I wondered. Surely he would show us the way.

‘The government will cancel your licence if you don’t comply with this police request,’ he said finally. I was astounded. Here was I, hoping for a morally and hopefully legally defensible resolution to our dilemma, and what we were getting was ‘practical’ advice.

‘Our business does not depend on any government licences,’ I said.

Seeing the disappointment on our faces, he leafed through the papers again. ‘You see, the law that governs this kind of case, the Indian Telegraph Act, 1885, was enacted when the shadow of the 1857 “mutiny” was still over the British Raj government. It’s really an instrument to control such events rather than to govern the evolution of an industry. Unfortunately, there is nothing you can do but comply if the request comes with the proper authorisation.’

‘We won’t comply with this request, whatever happens,’ I blurted out.

The judge merely stared at us. I suppose after his illustrious career as a judge he couldn’t possible endorse a plan to not abide by a law.

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As we left his chambers, the issues started to become clearer in my mind. When the British Raj introduced the telegraph system in India in 1885, it was seen primarily as an instrument for maintaining colonial control. And from Indian Independence in 1947 till the mid-1990s, it seemed that the post-colonial government had continued with this perspective.

All that a politician or a bureaucrat had to do was call up the government-owned post and telegraph department and tapping would commence unhindered, with no one to raise legal or civil rights issues.

Things had become complicated for the government since then. The new technologies of e-mail, text messages and mobile phones today carry most communication traffic in India, and practically all of these industries are in the private sector.

Moreover, people of my generation, born post-Independence, no longer assume that the police’s or the home ministry’s interests are automatically the national interest.

Unfortunately, there is no law that does the dual job of balancing the civil rights of citizens and genuine national security needs. Nor is there a clear process that tells the new economy industries how to resolve a conflict between the two.

Nikhil and I were resolved to not let the local police spy on Omvedt, so we decided on a bureaucratic subterfuge. We wrote a letter politely insisting that the home secretary of that state certify the list of e-mail IDs, including Omvedt’s, to be monitored.

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After a few weeks the authorisation arrived, but her name had been deleted from the list.

Meanwhile, the Information Technology Bill that the expert committee (which I was on) had worked on had meanwhile wound its way through various public hearings and had been posted on the Web site of the Ministry of Information Technology for even more public comments.

This, I suppose, is the way public policy making happens. A triggering event like the Delhi [ Images ] porn video and subsequent arrest of an Internet entrepreneur causes an outrage, new laws are proposed, but policy makers get distracted with other things till the next crisis that requires these new laws hits.

The crisis that required the new laws happened four years later, on 26 November 2008.

I was getting ready to sleep that evening when I heard the sound of explosions. I switched on the TV and was astonished to see what was going on in our neighbourhood of Colaba in Bombay. Unidentified gunmen had stormed the Taj Mahal and Oberoi Hotel

The TV broadcast showed flames rising from the usually sedate facade of the Taj Mahal Hotel [ Images ]. Terrorists had entered this hotel through the main entrance, triggered a blast at the ground-level restaurant and then disappeared into the fifth and sixth floors. Hundreds of guests of both hotels were being held hostage.

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The drama would continue for the next sixty hours, bringing this city of twenty-something million to a halt while the world looked on.

The terrorists holed up inside the Taj Hotel [ Images ] were in minute-by-minute communication with their handlers in Pakistan. In an earlier era the phone lines that they used would have been operated by State-owned telecom companies ready to do the government’s bidding.

The terrorists of our age were apparently using telephone services such as BlackBerry with encryption that the government could not decipher without the service provider’s cooperation.

I can only indirectly surmise the frustration of the Indian law enforcement authorities at not having a legal basis to demand from international service providers like BlackBerry that the messages being sent by the terrorists inside the Taj Hotel be decrypted and monitored.

The new bill that the expert committee had proposed was still not law; it had not been passed by Parliament.

I understood later that the terrorists’ communication was monitored using the help of the American law enforcement authorities.

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The new Information Technology Act with the requisite power to allow the Indian State to deal with Information Age challenges was passed by Parliament, without debate, within a month of the Taj crisis.

Reproduced with permission from Rediff.com, which excerpted with permission from The Wave Rider: A Chronicle of the Information Age by Ajit Balakrishnan, Pan Macmillan India, 2012, Rs 599.

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