Kapil Sibal reins in section 66 (A) with a rider

The government, stung by criticism following a spate of arrests under section 66 (A) of the Information Technology (IT) Act, on Thursday came out with new guidelines to stop its misuse.

Now, a complaint under the IT Act can be registered only after an approval of either a deputy commissioner of police or an inspector general.

This will ensure that there is some application of thought by the police to prevent a situation similar to the arrests of two girls from Palghar in Maharashtra for posting an innocuous comment on Facebook.

Kapil Sibal, Union minister for communications and IT, announced the new guidelines after a meeting of the cyber advisory regulatory committee, a body of all IT stakeholders, which has rarely met in the past two years.

For a change, Sibal stepped in and asked civil society members to attend the meet to get them on board.

This led to a free exchange of ideas and Sibal was convinced that something needed to be done to fix the growing problems because of the wide-ranging powers vested in the police that enables them to book anyone under section 66 (A) of the IT Act.

While a major revamping of the act is still not on the cards, it will, at least, prevent the arbitrary misuse that has been happening so far.

“A junior police officer cannot register any complaint unless he has obtained prior approval at the level of an officer not below the rank of DCP in urban and rural areas of the country and not below the rank of IGP in metropolitan cities,” Sibal said soon after the conference. “Once this power is exercised at that level — and they are IPS officers — we are absolutely certain that the kind of instances we have seen will not be repeated.”

Section 66 (A) uses terms like information that is “grossly offensive” has “menacing character” for the purpose of “causing annoyance, inconvenience, danger, enmity, hatred, or ill will”.

Constitutional law experts say its sweep is broad, vague, and inherently flawed. And it carries a punishment of three years of imprisonment.

While Sibal defended the section by citing similar laws in the UK and the US, he skipped over several critical details.

For starters, the UK laws have much lower punishment of six months imprisonment or less. Also, while the law enforcement agencies in the UK and the US are defined and mandated by definitive acts of Parliament, in India the intelligence agencies tasked with monitoring social media are opaque and without any oversight mechanism.

This has led to arbitrary blocking of websites, content, and users of social media sites such as Twitter. This, experts say, is a major violation enshrined under the fundamental rights — the freedom of speech.

Another major issue that has come up between the civil society representatives and the government is the role played by Dr Gulshan Rai, the director general of the Computer Emergency Response Team-India (CERTIN).

Rai’s organisation is the national nodal agency that can block or remove content or websites found to be “offensive”. He provided Sibal with instances of the UK and the US laws to defend section 66 (A) but did not point out the major differences between the Indian and the US/UK laws.

“I don’t think this step is enough. In fact, this is contrary to sections 78 and 80 of the act, which say that an officer of the rank of an inspector can not only register a complaint but also search a public place without any warrant,” Pawan Duggal, senior lawyer and cyber law expert, told DNA.

The representatives of the industries who provide internet access also had some major issues on the lack of nodal officers who send the notices for taking down content. They also feel that there has to be a grievance redressal mechanism where people who are blocked or denied access can register their appeals.

A major lacuna is the lack of data on how many sites have been blocked and the reasons. Sibal is also against involving the courts in the process of blocking sites or reviewing the decision. In most other democracies any blocking of content is automatically subject to a judicial review while in India it is left to the discretion of bureaucrats.