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Live: Discussion In Rajya Sabha On IT Act Section 66A

Note: lots of typos and grammatical errors below, and we’ve paraphrased a lot. Pardon us, we were blogging this live, typing super quickly.

1435 hrs: P. Rajeeve highlights cases of arrests, including the Air India employees, Aseem Trivedi, the Karthi Chidambaram case, saying that we can find out several examples. P. Rajeeve says that this is not misuse of the act, but the real usage of the act the way it is drafted. “Media publications have been more critical and published more critical cartoons, but they have not been booked. I’m not demanding that they be booked, because I support the right of free speech and expression. Why isn’t this freedom allowed to New Media? If a person just tweets, they can be arrested, and this is unconstitutional. I agree that freedom is not absolute, and there are reasonable restrictions. I’m not against regulation of the Internet, but I’m against the control of the Internet.”

“Now the minister has some new guidelines. As per the new guidelines, the police officers will have to seek permission from higher ranking officers, but this is a cosmetic change. These guidelines have no backing of law. The subordinate legislation should be in line with the parent act, and not ultra vires. Guidelines cannot overrule the reach of the main legislation. The new guidelines are contradictory to section 78, which allow an inspector the right to investigate. You cannot go beyond the provisions of this Act. Section 81 allows a person not below the rank of an inspector to enter any public place, without warrant, and arrest any person, who is suspected of committing, or has committed any offence. The guidelines from the government contradict the act. Mr Kapil Sibal knows that there is no legal backing for these guidelines.

It is an eyewash to reduce public pressure. It is not an answer to this problem. The main issue is with the IT Act itself.

After the IT Act was passed in 2000, there were regular reports on cyber crime. The first amendment was in 2006. There is no law which explains the process of section 66A. The minister stated that the parliamentary standing committee gave a unanimous report to strengthen the provisions of the IT Act. The amendment was passed along with seven other bills in seven minutes on December 22nd, and in Rajya Sabha without any discussion.

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Any person who sends by means of a communication resource, any information which is grossly offensive, of a menacing character, any information known to be false, inconvenient – how can you define inconvenient – this has a subjective interpretation. You cannot blame a police officer. How can he interpret what’s inconvenient, grossly offensive, how can he interpret? The space is not for objective, but subjective interpretation. Some of these provisions are there under the IPC.

(we missed a little bit here)

The phraseology of Section 66A is so wide, vague and incapable of being just… this gives faith for a police officer to arrest anybody. Any person who “sends” to another person, not publish, so the comparison with international law is not right.  Information created or transmitted. This is not taking into account the new realities in social media. This is very poor drafting. If the minister could just look into the drafting. Kapil Sibal, if he looked into the drafting, he would never allow this section to be drafted like this. This is against the basic principle of drafting of such a law.

The fundamental right of speech and expression. Article 19(1) defines freedom of expression, and 19(2) defines reasonable restrictions. Section 66A goes beyond article 19, and is unconstitutional.”

1456: P. Rajeeve points out other laws and the punishments in other laws – for defamation, which involves publishing, the punishment is maximum 2 years. As per Section 66A, it is 3 years, even for sending.

“The Act is a poor cut and paste exercise, without applying mind. Most of the wordings are of the 1935 Post Office Act amendment. In UK, the imprisonment was not more than 1 month or a fine. Section 66A has imprisonment of 3 years. The current law in the UK, the malicious communications act, has a maximum imprisonment of 6 months or a fine of GBP 5000, or both. Some of the language is taken from this act, which begins with the the statement that this is for communication from one person to another, but not for posting on a social website.”

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“Some people are saying that there should be some strong provision for pornography, 66B, 66D, 66E, 66F and 67, 67D and more sections are there to address concerns.”

“I had moved an annulment in the Intermediary Guidelines. I got a very short period notice, but I never got the information from the ministry in July about what is going on. Like in section 66A, the intermediary rules go beyond the rules. I’m not against regulation of the Internet, but against control of the Internet. Section 66A and Section 79 need to be addressed.

You should recognize the public opinion. I ask the minister to amend the IT Act. For the time being, the government should limit the scope of 66A. Recognize the feeling of the young generation of this country.”

1513hrs: Dr. Gyan Prakash Pilania: “I would not blame Kapil Sibal for this legislation. It is his honorable predecessor A. Raja under whom this act was passed without discussion.

I feel troubled that after hearing the detailed plea of Mr Rajeeve, there is a need. Hell broke loose on that fateful day when two innocent girls were arrested by the police. That shook the conscience of the people and the media against this draconian law. She said that the Mumbai bandh was due to fear, not out of respect. Every day thousands of people die, but the world moves on. Just due to one politician’s natural death, everyone goes crazy. When was the last time anyone showed even two minutes silence for Shaheed Bhagat Singh?

What was the offence here? One friend of her who agreed with her, offended those who wielded power and she was detained, a mob was there. Vandals struck at a hospital run by her uncle, and nothing happened. And when the matter went to the Supreme Court, they said that somebody has blundered, expressing anguish over these arrests. What motive did the police have to slap non bailable offences? What is the guarantee that the deputy commissioner of police would not falter? Bad laws are put into action by good officers, the outcome is not good. What the state police did was indefensible, but the minister did not find fault with the law. Our submission is that there is a fault with the law. The statement that there isn’t a need to amend the law is prejudging the issue.

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Our preamble says that there shouldn’t be fear of being muzzled by the state and the right to dissent is most important. Voltaire has said that what I may not agree with what you say, but I will defend till my death your right to say it. Right to disagree, right to expression is fundamental. Let it be just on the balance of rationality. There is a long list of people who have been arrested under this law, but ultimately what sparked the issue was the arrest of those two girls.

It was on 30th November 2012 that the Supreme Court said the provision was widely worded.

We want the section to be modified, amended or withdrawn. We should be in a country where the head is held high, and please modify it so that we’re not a nation of dumb people, and those who stand for their liberty.”

1526hrs: Shantaram Naik: “I am computer savvy, Internet savvy, iPad savvy. I can’t be against any modern communication. I was the first MP to have used an iPad during my speech in this house. The action of the police in Maharashtra was highly objectionable, and no civil society could have appreciated it. Many people have misused provisions of the law. It doesn’t mean that those sections should be out of the rule. Preventive detention laws have also been misused. One cannot say that because of mishandling of law, the law needs to be changed. Rectify the approach of those who execute the law, rather than deleting the sections.

In my career, when there was depression, the computer was my best friend. It helped me in my career. People can download the IT Act in minutes. Writers and poets exchange writing through the Internet. The biggest advantage is that by 6-7pm, you get the entire debate from 11-5, word by word on the web. You get the question hour by 3pm.

(goes off topic)

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Supposing an important political leader dies. The Times of India has comments – at least 50 comments – and many of the comments say that why didn’t he die earlier? Such people should die. When there was an air crash, someone commented that such defective jets should be provided to politicians so they should die. Such comments are published in Times of India. What about these comments, outside of Facebook, Twitter. Such people should be jailed. While you are attacking innocent people in a manner that is defamatory, derogatory, it shouldn’t be a cognizable offence? Take bail and go out, and enjoy? Such offences should be made cognizable, as a deterrent in such matters. As far as defamation is concerned, people in the streets defame you, me, Parliament, the judiciary, and MPs.

I urge that we have to have a law on defamation. Rajeeve ji is worried about the terms grossly offensive. Not every term can be defined. We have to abide by the definition as interpreted by the Supreme Court of India. Even if we define, there will be further definition. Law will take its own course in defining these terms. As far as the Supreme Court is concerned, it has given a broad definition.

Students also use and misuse computers for “other things”, and some provisions need to be made to make students aware of the laws of misusing the Internet.

RTI provisions are not being followed in many states…(goes off topic)

There are no grounds given to say that these sections are against Fundamental Rights. These have to be cognizable offences. I would advise P.Rajeeve that he has succeeded in getting a debate against Section 66A, and should withdraw the resolution after this debate.”

1549hrs: D. Bandyopathyay: “Computer has not created a crime. the crime was already there, and it’s a question of transmission from one medium to another. Why should we have a separate law for defamation when it is communicated through IT? We have a well established law of defamation. Let us use those laws. Technology has not invented new crimes. ‘Grossly harmful’ and such phrases are imprecise. My simple point would be to urge the minister through you, put the crimes already mentioned in the Indian Penal Code, so that we don’t have a plethora of crimes for each technology.

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This imprecision in law creates a condition for misuse.”

1554hrs: Baishnab Parida: “The fear that this IT Act impinges on the right of the individual, the right to speak, right to express, right to know, right to communicate. It is infringing fundamental rights. It harms the fundamental rights of the citizens. The event in Jadhavpur university, the Bombay incident, has proved that if we don’t amend this act, it will create hundreds of such cases in our country. International media has also opined that such a rule has been passed by Parliament, which is hampering the fundamental rights of our citizens, the bedrock of our democracy. This revolution in IT has provided unprecedented scope to exercise the fundamental rights of freedom, or speak, be heard. This technology has given us the ability to see what people in other parts of the world are talking about this act. We must be very proud to amend this act, so that it doesn’t harm the fundamental rights of our citizens and create a bad image in the international arena.

The young boys remained silent, while two young girls had the courage to speak their mind and safeguard our democracy. We must be proud of them. When we passed very hastily this IT Act without discussion, we couldn’t see the consequences. These girls have opened our eyes, and we should be very careful.”

1605hrs: Rajeev Chandrasekhar:

“CNN described section 66A as archaic, draconian and absurd. India ranked high as an enemy of the Internet. The misuse of 66A: there are overwhelming instances of misuse, which the minister acknowledged. The IT Act was passed on the 23rd December 2008, without discussion or counterpoints by the members of this house. While it can be argued that the Supreme Court should look into it, we should not abdicate our responsibility. That the parliamentary committee recommended this, he is aware of many instances when the government ignores the committee. The AG’s admission in court, and the government’s new guidelines indicate that there is a problem. The guidelines are not a solution. The police machinery is not equipped to deal with it. The recent step of raising the level of officers who can implement the law is an indication. Guidelines cannot be a substitute to a review of the act.

Firstly, restrictions on free speech must be reasonable, not arbitrary. Undefined and overboard words are subject to discretionary interpretation and misuse. Reliance on import of provisions from other countries does not assist. The Supreme Court has observed that one sided disinformation, misinformation and non information create an uninformed citizenry. Grossly offensive will have to be read in a manner as not merely to cause offence. Under section 20B of the postal act is limited to one to one communication. Restriction to 66A to one to one communication will prevent abuse.

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Why cannot we use existing provisions in IPC or CRPC?

Even the anti-spam provision does not cover spam, wherein it is unsolicited and sent in bulk. Section 66A punishes in a stricter manner than the IPC.Sometimes 66A looks like a solution looking for a problem.

We can meet both national security and freedom needs if we try. There have been proposals on two occasions by the minister to constitute a board. I attended the open house, and it seems that nothing has been done in the last five months. Why has the government allowed these issues come to a boiling point? Let us accept that this is an evolving issue. Let the law evolve, and let the government address these issues with a multi stakeholder approach. This is what is expected from the government. Do not withdraw the resolution.”

Update: Can view the transcript of Chandrasekhar’s speech here.

1617: M. Rama Jois: “The law is unconstitutional. This law, it was passed in a hurry. The amount of criticism, is indicating that the legislation has not been passed after due consideration. I read section 80: power of police officer to enter, search and arrest any person who is reasonably suspected of committing, committing or about to commit a crime…how will anyone know someone is allowed to commit. There is no fundamental right of the press in India, but the fundamental right of speech and expression covers it. It is the life-breath of our constitution.

This is nothing but legislative terrorism. 66A, 69A and section 80 are atrocious.

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The intolerence is anti-democratic. In democracy you must have the mentality of tolerating the opinion of others. Intolerence is fascist. Restrictions are reasonable, but what is reasonable has to be decided by court. There are a number of cases where the Supreme Court has said what is reasonable. This law is bordering on emergency situation. People will be afraid to frankly express their opinion. Kapil Sibal is a champion of fundamental rights in court, but in his avatar as a minister…particularly in the light of the fact that seven legislations were passed in 12 minutes with no consideration to the consequences of the legislation. There is scope for applying the mind again.”

1634hrs: Narendra Kumar Kashyap (in Hindi, so translating): (talks about importance of Internet and technology) “If the usage of Facebook is not against law, if they are arrested then it will create problems for those who use the Internet. BSP supports this motion of P. Rajeeve. There need to be restrictions on the IT Act. Sometimes there are problematic incidents – people get married and divorced because of the Internet – but the way the IT Act has been misused, we need to look into P. Rajeeve’s suggestions, especially section 66A. Innocent people should not be unnecessarily punished because of this IT Act. It shouldn’t be a cognizable offence. Our nation cannot be separated from computers.”

1642hrs: Basawaraj Patil: requests for changes

1647 hrs: Rama Chandra Khuntia: “I do agree that there are some instances of misuse, but there are instances like Koprajhar, where there was misuse of the right (of freedom of speech/expression). Section 66A was provided in the act based on best practices. Actually, when this act was amended, and the section was included, the international law and practice was kept in mind.”

(blames the opposition for not allowing discussions when IT Act was passed,not allowing to run the house)

“It is clear that 66A has been done in line with the constitution. And it is communication between two persons. How do you define two persons. If it is two persons, if I send a message and the other person doesn’t like it, and it’s objectionable, it is not correct. “(ed: we didn’t understand this point)

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“This has been done as per the recommendations of the standing committee. To reduce the offence. There is nothing wrong with the legislation. Our country is known for legislating progressive laws. But we have a bad name for implementation. Excessive implementation depends on executive power. For a political point of view. When it happened in Maharashtra, with what action we could take against the person who is misusing the act.”


“Who was misusing the act? Unless we have the guts to punish people who have misused the act, the amendement will not matter.”

Kapil Sibal: There is no question of diluting the fundamental right of free speech. You believe that the act is unconstitutional. The matter is pending in Supreme Court.

House Adjourned. The matter will continue the next time private member bills are considered (which is possibly next Friday)

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Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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