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New Delhi: Seven years after the Supreme Court struck down Section 66A of the Information Technology Act as unconstitutional, the Narendra Modi government is trying to bring the provision’s restrictions on online speech through the backdoor.
During ongoing negotiations to draft a new, legally-binding UN treaty on tackling cybercrime, India has submitted a proposal for the “criminalisation of offensive messages”, which is an exact duplication of the language of the Section 66A – language that had been used to file cases across India against cartoonists, students, activists and others before the court ruled it ultra vires of the constitution.
While Ministry of External Affairs officials did not respond to queries about the proposal, the legal thinking behind the move may be to tell the apex court – if the restrictions pass muster at the UN – that India now has an ‘international obligation’ to reintroduce the 66A curbs.
“It is beyond shocking that the government is trying to introduce Section 66A through backdoor legislation,” Justice Madan B. Lokur, a former judge of the Supreme Court, told The Wire. “Is the government sending a message to the Supreme Court or to constitutional law experts or to freedom of speech supporters or to everyone, that the government will do what it thinks appropriate, regardless of what the Constitution and the Courts may say.”
Since May-end, a committee of experts convened by the UN has been debating and negotiating various provisions of criminalisation of cybercrime in Vienna in a hybrid format.
Set up by the terms of a UN General Assembly (UNGA) resolution approved in May 2021, the Ad Hoc Committee, which began its work in January this year, is supposed to submit a draft convention on countering cybercrime to the General Assembly’s 78th session in 2023-24.
Ahead of the session, the member states were asked to provide suggestions on three specific items – provisions of criminalisation, general provisions and procedural measures and law enforcement.
India’s written submission, sent on May 12, proposed over 13 categories of offences that could be established as an offence by each state party under its domestic law by adopting legislation or other suitable measures.
The list includes defining criminal attempts ranging from damage to computer systems, cyber terrorism and child pornography.
The Indian proposal lists “Sending offensive messages through communication devices etc.” in Section 4(d). 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.
If the language seems familiar, it is not surprising.
Section 4(d) in India’s submission is an exact replica of the language used in the erstwhile Section 66A of the Information Technology Act.
On March 24, 2015, the Supreme Court struck down Section 66A, which had become notorious for being misused by law enforcement agencies for political reasons. Since the UPA government introduced it in 2008, the main criticism of the amendment had been over the ambiguity over the definition of terms like “offensive” and “menacing character”, which gave broad leeway to authorities to lodge a complaint and make arrests.
The judgment issued by a division bench termed Section 66A 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.
Seven years later, India has suggested the exact language that the apex court struck down in a written submission for a new UN convention that will be legally binding for each state.
If the UN treaty includes this provision, as suggested by New Delhi, the Indian government, as a party to the binding convention, will be able to introduce new legislation to bring back the language that was earlier declared “unconstitutional” by the Supreme Court.
In July 2021, the Supreme Court expressed shock that cases were still being filed under section 66A of the IT Act, despite it being scrapped years ago. The petitioner’s lawyer had pointed out to the court that more than 1,300 new cases had been registered since the landmark judgement. Subsequently, the Union government wrote to state governments directing them not register cases under this revoked provision and to withdraw others that may have already been filed.
There is already a rising concern among international civil society that a treaty to counter cyber-crime would significantly risk individual rights. “A binding international treaty has the potential to expand government regulation of online content and reshape law enforcement access to data in a way that could criminalise free expression and undermine privacy,” said Human Rights Watch’s Deborah Brown in an online essay last year.
San Francisco-based NGO Electronic Frontier Foundation asserted that there have been “far too many examples of anti-cybercrime laws being used to persecute, chill human rights, and bring spurious and disproportionate charges against researchers, activists, and whistleblowers”.
“The stakes are high, so human rights safeguards in the potential cybercrime treaty must be a priority,” said the EFF in February.
These apprehensions are fuelled by Russia being the primary mover behind the December 2019 resolution in the UNGA that set the ball rolling on the process of drafting the treaty. While 79 countries voted in favour, 60 nations, mainly the US, Europe and other Western allies, were against the resolution. Another 33 countries had abstained.
India voted in favour of the resolution.
After the COVID-19 pandemic postponed the start of negotiations in 2020, the general assembly adopted a new timetable in May last year
While several countries have been advocating for a narrowly-focussed treaty so that wider controls on the internet cannot be enforced, India made it clear that the convention should be comprehensive and also included a broader definition of ‘cybercrime’.
During the first negotiation session of the Ad Hoc Committee in March-April this year, India had also proposed that the new treaty could have an in-built mechanism to facilitate sharing of “non-content data/Metadata” without going through the route of Mutual Legal Assistance Treaties and Letter Rogatories.
“If the member states keep resisting the international cooperation or make the international cooperation of sharing electronic evidence difficult, time consuming and very bureaucratic, it will indirectly incentivise and support the criminals using the ICTs and harm further the victims,” said the Indian representative.