A private members resolution moved in Parliament, to withdraw the draconian Section 66A of the IT Act, moved by MP P. Rajeeve, was withdrawn last week following assurances from Telecom Minister Kapil Sibal that the resolution will be taken up after the Supreme Court of India rules on it. There is a public interest litigation in the Supreme Court challenging this rule. However, the withdrawal wasn’t without some resistance, as Rajeeve pointed towards the lack of any action from Sibal and the Indian government, regarding a consultation on the draconian IT Rules which were passed by the government last year. Sibal hasn’t given a specific timeframe for the consultation process, stating that the Supreme Court needs to first deliver a judgment. Thus, Section 66A remains in force until the Supreme Court adjudicates on the issue.

Rajeeve’s resolution proposed four changes:

(a) amend Section 66A of the I.T. Act, 2000, in line with the fundamental rights guaranteed under the Constitution of India;
(b) restrict the application of Section 66A of the Act to the communication between two persons;
(c) precisely define the offence covered by Section 66A of the Act;
(d) reduce the penalty imposed by Section 66A of the Act and make the offence under Section 66A of the Act a non-cognizable one.

An overview of the debate in Parliament below:

Kapil Sibal’s Points on Section 66A and IT Rules:
– Difference between the print media and the social media: in print media, the identity of the person is always known, and the liability is fixed. Publications are governed by the Press Registration Act; “we know who the publisher is, we know who the editor is, we know who the resident editor is.”…”Most of the time, the social media is opaque.

– Jurisdiction issues: Sibal said that the carrier and the intermediary are not liable to the jurisdiction of courts unlike print media, and the government needs to rely on the intermediary to know the identity of the person who is sending the message. “There are no international rules under which those names need to be disclosed.”

Why norms for the web must be different: because unlike print media, social media is continuous, and “In a sense, it is a continuing offence, not so in the print media. It has a life of its own, not so in the print media.”

Problem increase once Internet penetration increases: once fiber optics are laud, communication will be used by many to destroy India, and this is necessary to maintain public order.

Standing committee insisted on making this a cognizable offence, and non bailable: “After an Expert Committee was set up way back in 2005. It was at that
time, I think, chaired by Mr. Ajit Balakrishnan of rediff.com. When the
Report of the Expert Committee came, they advised us to formulate the legislation. In fact, we in Government at that time, and I do not want to read that also, said that let this be a non-cognizable offence. The Standing Committee insisted that it should be made a cognizable offence. We said that it should be bailable but the Standing Committee said, no. We did not agree. We made it a cognizable offence in line with the recommendations of the Standing Committee.”

– On restriction of 66A to communication between two individuals: according to Rajeeve’s petition, the English law says that it is limited to “a communication between one person and another”, but this doesn’t mean two people, it means one and another. Sibal says he doesn’t agree with the English law and this definition, and India should have its own laws.

– On defining terms specifically: Article 19(2) (Freedom of expression) uses the phrase ‘decency’, but how does one define the term decency? The courts do it, so don’t ask the government to define these terms, and leave it to the court of law.

P. Rajeeve’s response:

– On Sibal’s consultation process: Sibal gave an assurance on the IT Rules in May 2012, that a consultation process would be held, and now, we are nearing May, 2013, but the invite for the meeting was sent within a very short period. “But, up till now, I (P. Rajeeve) have not got any letter from your Ministry to give my opinions with regard to Intermediary Guidelines.” These things should be done in a timebound manner.

– On the need to indentify the person communicating: Why has an addition to the crimes with regard to social media, print media and electronic media been made, and on what basis? it is diverting the issue.

– On terms: Why have more abstract terms been added? why have terms like ‘inconvenience’ been added? There should be some restriction, but there should be freedom too. “I have the right to
draw a cartoon in a newspaper but I have no right to draw, to paste, to share, the same cartoon in a new media!”

– On why a greater punishment for cybercrimes as opposed to offline? the same issues have been addressed in the Indian Penal Code, but the punishment prescribed there is different. What is the basis for that? A grossly offensive thing offline would lead to a jail term of 2 years, while one online would lead to three years in jail. Why this additional year?

On the UK Law: there’s an additional provision that prosecutors may only start a prosecution if a case satisfies the test set out in the Code for Crown Prosecutors. This test has two stages: the first is the requirement of evidential sufficiency and the second involves consideration of the public interest.

Rajeeve pushed for a timeframe for consultation, and failed to get one. However, he withdrew the petition. Read the entire transcript here, courtesy the Software Freedom Law Center.

Now it’s up to the Supreme Court of India.