New Delhi: An Indian delegation to a UN conference on cybercrime in Vienna has proposed the use of measures that are almost identical to those in the controversial Section 66A of the Indian Information Technology Act, which was struck down as unconstitutional by the Supreme Court in 2015.
The second session of the United Nations Ad Hoc Committee (AHC) has been convened to negotiate a proposed UN treaty on “countering the use of information and communications technologies for criminal purposes”.
The Indian delegation — comprising officials from the ministries of home, external affairs, and information technology — had sent their proposal on 12 May and then presented it at the Vienna meeting Wednesday.
However, some points in the proposal seem lifted word-for-word from Section 66A of the IT Act, which was struck down by the Supreme Court because it was violative of the right to freedom of speech guaranteed under Article 19(1)(a) of the Indian Constitution.
Among the 13 sections of the Indian delegation’s Vienna proposal, subcategory 4(d) — on “offensive messages through communication service etc”— is an almost exact copy of Section 66A curbs.
It recommends that a state should adopt “legislative measures” to criminalise information that is deemed to be “grossly offensive” or of a “menacing character”.
The same goes for sending out information, “known to be false”, for the purposes of “causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will…”
Finally, any electronic communication sent out “for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages” should be punishable by law, India’s contribution to the AHC session says.
The proposal has riled digital activists.
“Terms like ‘grossly offensive’ are vague and give the government power to interpret it arbitrarily and misuse it. The UPA government did it when it had 66A,” digital activist and savetheinternet co-founder Nikhil Pahwa told ThePrint.
ThePrint tried contacting all the ministries involved in the proposal via email and phone calls but did not receive a reply until the publication of this report. If a response is received, this report will be updated.
Because of Section 66, several artists, journalists, and students had found themselves on the wrong side of the law due to their social media posts criticising various leaders.
However, despite being struck down by the apex court, the law has not died a quick death. As reported last year, since being scrapped, it has been invoked not only within police stations, but also in cases before trial courts across India — a fact described as shocking by the Supreme Court.
The Union government subsequently issued an advisory to states and Union territories urging compliance with the 2015 order, also citing earlier missives issued in this regard.
‘Resurrection of 66A’
There is virtually no difference between the three sub-clauses of Section 66A of the Information Technology (IT) Act and the Indian delegation’s proposals on “offensive messages through communication service etc”.
If there’s a difference, it’s that 66A laid down the specific punishment for such offences, if someone was found guilty.
According to this law, which was introduced by the then UPA government in 2008, any individual found sending “grossly offensive”, “menacing”, and incorrect information could be prosecuted. These infractions were “punishable with imprisonment for a term which may extend to three years and with fine”.
In 2015, the Supreme Court struck down the law in a landmark case — Shreya Singhal v. Union of India. The court said that the terms used were “open-ended and unconstitutionally vague”. The judgment further reiterated some nuanced arguments on free speech.
The case came to the apex court when a 21-year-old law student, Shreya Singhal, filed a petition after Thane police arrested two girls for their Facebook comments on Mumbai’s shutdown for the funeral of Shiv Sena leader Bal Thackeray.
However, since then, the law has not exactly gone away.
According to Nikhil Pahwa, despite the Supreme Court striking down Section 66A, the government has continued to make efforts to resurrect it.
“We tend to forget that even after the Supreme Court struck down Section 66A of the IT Act, there were news reports in 2015 citing unnamed sources from ministries who said that the government wants to bring this law back in a different form,” he said.
The Internet Freedom Foundation (IFF) and CivicDataLab launched a website called “zombie tracker” to list the instances when Section 66A was invoked despite its demise.
“The intention [to bring the law back] has always been there,” Pahwa alleged. “Just because the Supreme Court has struck down Section 66A does not mean that the government cannot bring [it] back in a different shape and form by passing a law. This proposal is an indication of that intention.”
International convention on countering cybercrime
The second meeting of the AHC was organised by the United Nations, with 29 member countries sending delegates to Vienna from 30 May to 10 June. This was done to continue the drafting of a new treaty around cybercrime, and how to control and bind it with international laws.
The first meeting took place in February wherein member states agreed to submit their drafts on measures to counter cybercrime.
Member states had highlighted issues like misinformation, data privacy, and child pornography — triggering a conversation about data-sharing among countries by bypassing red tape.
The Indian delegation, in their proposal, claimed that, in recent years, “social media and mobile ecosystem have emerged as one of the important public communication channels. Of late, use of social media has been seen all over the world as a key tool by criminals and anti-national elements to commit cyber crime”.
From “failure to protect data” to “sending offensive messages” via devices, the Indian proposal highlighted the need to have strong international cooperation so as to crack down on cybercrime.
(Edited by Asavari Singh)