Indications from earlier this week suggested that the government would defend the need for the country to retain an internet censorship law that has been called draconian, unconstitutional and likened to the Emergency. On Friday, this became clearer: the government stated in an affidavit that section 66A of the Information Technology Act is not only legal and constitutional, it’s necessary.
Moreover, the Centre claims that those seeking to strike 66A and other problematic provisions of the IT Act are simply playing into the hands of internet companies that have "commercial interests".
The affidavit was filed by the Ministry of Communication and Information Technology in reply to a petition by the People’s Union for Civil Liberties, which has called into question the constitutionality of the law. The statement makes it evident that the centre is sees 66A as a crucial weapon in its battle against “offensive messages” on the internet.
“It is submitted that in this milieu of rapid technological advancement, even a single unlawful/illegal message or image has a potential to tear the social fabric and destroy peace and tranquility,” the government said in its reply to the petition seeking to strike down the provision.
This is, of course, no different from the argument put forward by the previous government, which framed the IT Act in the first place. The law prescribes a prison sentence for anyone who sends an electronic message that “cause annoyance”. The section was nevertheless used to suppress dissent and arrest even those who were joking about politicians.
The frequency of misuse was serious enough to warrant the United Progressive Alliance government sending an advisory to the states mandating that senior police officials, of Deputy Commissioner of Police rank or higher, would have to be consulted any arrests could be made under 66A.
Such misuse was, at the time, enough to earn the law many opponents, including members of the Bharatiya Janata Party, who likened the situation to the Emergency, when the Constitution was suspended. As free-speech activists continue to call for the law to be struck down, the Supreme Court is currently hearing arguments from a number of petitioners who insist that many provisions in the IT rules are unconstitutional.
As a counter to the claims that the law is overbearing, prone to misuse and should be struck down, the government has fallen back on three simple claims.
1) The broad terms that come under criticism, like “causing annoyance,” were already present in the Indian Penal Code.
“The legislature imported certain words and phrases from the Indian Penal Code… to section 66A to make it more broad-based keeping in view hues and colours a communication message might take,” the government said in its affidavit.
2) If these words hadn’t been used by the centre, states would be free to define the law as they wish, which would make it prone to abuse.
“Had this provision not been formulated, then various states of the union could have notified local/municipal laws to regulate such criminal activity pertaining to Internet… this would have led to overall confusion resulting in miscarriage of justice,” the affidavit said.
3) Many other countries, like the US, the UK, South Africa and Singapore have similar laws.
The UK, for example, finds people guilty for knowingly sending a false message that causes annoyance, inconvenience or needless anxiety to another. Similarly, American law makes it illegal to send messages that are “obscene, lewd, lascivious, filthy or indecent with intent to annoy, abuse, threaten or harass.”
With this in mind, the government’s affidavit argues that section 66A doesn’t censor anything beyond the reasonable restrictions put upon free speech in the Indian constitution, and so calls on the Supreme Court to dismiss the petitions against it for being frivolous and misleading.
Indeed, the government takes this argument one step forward, claiming that the criticism of section 66A and other provisions of the IT Act that are currently being challenged amount to privileging the interests of giant internet companies over the rights of Indian citizens.
"The Writ Petition claims to protect the right of freedom of expression of Indian citizens, without paying any heed to the rights of Indian citizens who are being defamed online, against whom illegal activities are taking place in the Internet like obscenity/voyeurism, cyber-bullying, impersonation, etc," the affidavit said. "The issues related to fundamental rights raised in the Writ should be seen from the prism of the constitution of India and not from the yardsticks of commercial interests of internet platforms/companies, which this writ intends to protect directly or indirectly."
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