In a bid to fight terror on social media, draconian section 66A may be back in a softer form.
The government is ready with what it believes is the draft of a fool-proof replacement for a portion of the Information Technology Act which was trashed by the Supreme Court about a year ago as vague, unconstitutional and violative of the freedom of speech.
Spurred by the country's police and intelligence agencies, which claim that they are struggling to deal with cases where social media is being used to undermine peace and national security, the government is poised to revive section 66A of the IT law in a new avatar, which claims to be milder and more specific, according to people aware of the plan.
A government committee has recommended fresh provisions to be included in the IT law through an amendment, and it has already drafted the clause aimed at filling the vacuum left by section 66A. The clause is being vetted by the Home Ministry. Once this is done, the Communications and IT Ministry will be tasked with bringing in the amendment after consultations.
The reviled section 66A was originally intended as an anti- spam provision and approved by the Parliament in 2008. While successive governments have argued that such a provision is needed to police harmful behaviour on the Internet, civil rights advocates have argued that the Indian Penal Code is good enough for such purposes.
Critics say section 66A of the IT Act had been widely misused by police forces in s tates such as Uttar Pradesh and Maharashtra to arrest innocent people for posting critical comments on social media about political leaders. A law student, Shreya Singhal, had filed the first public interest litigation in the Supreme Court in 2012, followed by many others seeking striking down of the controversial section of the law.
In March 2015, the Supreme Court agreed with Internet freedom advocates and struck down section 66A, saying that it "arbitrarily, excessively and disproportionately invades the right of free speech".
A senior government official, who did not want to be identified, said that the new clause is being brought in specifically to deal with terror and serious law and order issues. The person also said that the wording of the clause is "very clear" and not "vague" like section 66A. Moreover, it does not provide sweeping powers to legal authorities.
The new provision is expected to bring clarity on contentious issues such as the rank of officials who could order cases to be registered and under whose orders arrests could be made. On April 13 last year the government had set-up a committee to bring a "clear and better" section 66A provision.
The Committee, formed by the Home Ministry, consisted of officials from the Ministry, the Intelligence Bureau, Central Bureau of Investigation and National Investigation Agency. The Panel was asked to examine the implications of the Supreme Court judgment quashing section 66A and how to restore it with suitable modifications and safeguards to make it fully compatible with constitutional provisions. In December 2015, a report by the Parliamentary Standing Committee on Home Affairs had recommended a review and amendment of the IT Act. "...a situation has arisen before law enforcement agencies where some of the aspects of online conduct of persons, which were hitherto covered under section 66A, have gone beyond the mandate of law. Many of such aspects need consideration for bringing them under the ambit of law."
It suggested provisions for spoofing and hate speech to be inserted in the law along with other changes related to voyeurism, online cheating, hoax calls, and permitting investigations by officers below the rank of inspector. The report has already raised the hackles of industry and civil society, which are calling it part of a "legislative movement" to bring back the controversial section.
Industry associations which have large Internet companies such as Facebook and Google as their members have already started the process to oppose any move to bring back section 66A. Member of Parliament Baijayant 'Jay' Panda (of Biju Janata Dal), who is also a Member of the Parliamentary Committee on Home Affairs, said that there was a need to update the law. "There is a sense that police were prevented from monitoring social media and acting until the crime had happened and they could do nothing preventive," said Panda. "But the government has to now put its mind into making sure they are not sweeping provisions and there are specific clauses that can allow people to debate and discuss."