Based on 'Inter-Ministerial Inputs': MEA on India's Proposal for UN Treaty Copying Sec 66A Language

The spokesperson observed that while the MEA had taken the lead, the proposal was based on responses received from various ministries.

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New Delhi: Citing inter-ministerial inputs to the written submission, the Ministry of External Affairs said on Thursday that it would need to check, particularly with the IT ministry, on the appearance of the language in the Indian proposal being an exact duplication of a legislative clause that the Supreme Court had struck down.

The Wire had reported on June 9 that India’s written submission to the UN ad-hoc committee negotiating an international convention on cybercrime had included the precise facsimile of the language of Section 66A of the Information Technology Act.

At the weekly media briefing on Thursday, MEA spokesperson Arindam Bagchi said in answer to a question that India has been “actively participating in the UN ad hoc committee to Elaborate a Comprehensive International Convention on Countering the Use of Information and Communication Technologies for Criminal Purposes”.

The MEA’s response is the first public statement on the matter since it was reported.

He noted that “an initial Indian submission was made in May 2022” as part of the process.

Bagchi then observed that while the MEA had taken the lead, the proposal was based on responses received from various ministries.

“This is a technical matter. There are inter-ministerial inputs that come in. MEA, of course, had taken the lead, and MEA officers are there,” he said.

On the specific issue of inclusion of the controversial text, Bagchi said that he would have to get additional information from other ministries.

“But your question is very specific, so I have to check with the relevant line ministries, particularly MEITY, on the exact article, which is a replica of 66A….we will get back to you,” he said.

India’s written submission had proposed 13 categories of offences that could be made punishable by each state party by adopting new legislative measures.

Under “Section 4 (d)”, the submission cites “Sending offensive messages through communication devices etc.” as a punishable transgression. It then defines the criminality in three ways  –

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such message.

The language used in Section 4 (d) is a direct copy of the wording used in the erstwhile Section 66A of the Information Technology Act.

On March 24, 2015, the Supreme Court struck down Section 66A, describing the clause as “unconstitutionally vague”. “Section 66A of the Information Technology Act, 2000 is struck down in its entirety being violative of Article 19(1)(a) and not saved under Article 19(2),” said the order penned by Justices J. Chelameswar and R.F. Nariman.

Introduced by the UPA government in 2008 as an amendment to the IT act, it had been criticised for the ambiguity in defining terms like “offensive” and “menacing character”, which gave broad leeway to authorities to lodge a complaint and make arrests. Security agencies had filed dozens of cases across India against cartoonists, students, activists and others under the IT act before the court ruled it ultra vires of the constitution.

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