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Absurd arrests
-The Business Standard

IT laws have clauses that can be too easily misused

The arrest of two women in Palghar (near Mumbai) for an innocuous Facebook status update is the latest indicator of an increasing intolerance of free speech, especially online. The state has also increased its surveillance. The focus on surveillance and censorship is evident not only in specific instances but also in the statistics. In February, the government said it taps 300 new phones on an average day. Google’s latest Transparency Report says India also generates the second-largest number of requests for content takedowns and information about user accounts. Between January 2012 and June 2012, India made 2,319 requests for user data from 3,467 accounts and 273 requests for takedowns. Google complied with only 64 per cent of those requests, which means the rest did not meet legal standards, even under the provisions of Indian law. Many requests were for the removal of content “defamatory ” to sundry politicians, and “government criticism”.

The trend is nationwide. There was indiscriminate blocking of Twitter accounts when Indians from the northeast were threatened. Mumbai police charged cartoonist Aseem Trivedi for sedition. In Kolkata, Professor Ambikesh Mahapatra was arrested for circulating a cartoon about Mamata Banerjee. In Puducherry, Ravi Srinivasan was arrested for tweeting that Karti Chidambaram was richer than Robert Vadra. Various legal provisions were employed in these arrests. Some of the laws date back to the 1860s, when the Indian Penal Code (IPC) was drafted. Some offences were, however, charged under sections of much more recent Information Technology Act. While there have been protests against these arrests, charges have not been dropped. This means the accused will endure the tedium of judicial process and could end up in jail for absurd reasons. Of course, due to its colonial history, India has a portfolio of draconian laws that can be invoked for censorship. Most are absurd in a 21st-century context — under 505(2) IPC, which was invoked in Palghar, one can be arrested for “promoting hatred or ill-will between classes”. It is ironic that people associated with a political party that has as divisive a political ideology as the Shiv Sena could lay a complaint under 505(2) to harass two women. Section 153 has provisions similar to 505(2), and under 295A, IPC, one can be arrested for offending religious sentiments.

Sadly, the laws drafted recently to control online expression show little difference in attitude from those from the 1860s. They are wide-ranging, with vague terminology and can – as is self-evidently the case – be invoked in absurd ways. They also carry disproportionate penalties. Section 66A of the IT Act has provisions to penalise the sender of messages sent through a computer or communication device if these are “offensive”, “menacing”, or causing “annoyance or inconvenience”. The quoted terms aren’t defined in law and are open to discretionary interpretation. The offence carries a jail sentence of up to three years. Content takedown notices may be made on similar grounds. Article 19 of the Indian Constitution guarantees the right to free speech subject to “reasonable restrictions”. In their zeal to stamp out dissent, the servants of the state seem to have rewritten the definition of “reasonable”. There is not much point in asking for discretion in invoking laws so poorly designed. These recent incidents prove that if retrogressive laws exist, they will be misused to harass ordinary citizens. It is time these laws were amended.