Telecom Minister Kabil Sibal who had started a process to resolve problems relating to curbs on freedom of expression in the Information Technology Act has said that he would have the Supreme Court rule on them, now that the Court is hearing several PILs on the matter. Two fresh PILs against the IT Laws were filed in the Supreme Court on Thursday by activist lawyer, Prashant Bhushan and Member of Parliament, Rajeev Chandrashekhar.

Mr. Sibal told The Hindu that he prefers that the matter is resolved in the Supreme Court.

Earlier in November 2012, there was a move within the government to re-look the IT Act which has caused the arrest of citizens, including two young girls who had questioned the Mumbai shutdown on their Facebook posts.

Following the arrests, Mr. Sibal had called a meeting of the 22-member Cyber Regulations Advisory Committee on November 29, 2012, comprising of government, industry and academia. The meeting was also attended by six representatives from civil society who provided detailed feedback to the government on the shortcomings of the law, its impact on free speech and the provisions that are open to misuse.

After listening to the presentations, Mr. Sibal had sought written inputs from the stakeholders and several participants had subsequently provided detailed inputs on the various sections.

However, within hours of the meeting on the same day, a 21-year-old student, Shreya Singhal, filed a PIL in the Supreme Court. She pleaded that section 66A was susceptible to “wanton abuse” in view of the subjective powers of the police to interpret the law.

Mr. Bhushan’s petition, challenging sections 66A, 69A and 80, and Mr Chandrashekhar’s petition, were tagged along with Ms Singhal’s petition and the hearing is expected to be in February.

“Now that the matter is in court, I believe it should be argued thoroughly and all points-of-view should be presented before the court”, Mr Sibal said.

While the government is likely to explain to the court the history, rationale and reasons behind the formulation of the Act, Mr Sibal said “Whatever the Courts decide in addition to what is available in the law to ensure that provisions of the IT law are not abused in any way will be welcome. We have no problems with that”.

Differing views

Both Ms. Singhal and Mr. Bhushan’s petitions argue that the IT Act curbs freedom of expression and that Section 66A violates Article 14, 19 and 21 of the Constitution of India. Equally they argue that the expressions used in the Act are “vague” and “ambiguous”. The excessive action by the police including arrests in some cases such as Prof. Ambikesh Mahapatra, regarding political cartoons; Ravi Srinivasan arrested for a defamatory tweet on the complaint of Mr. Chidambaram’s son, Mr. K Chidambaram; arrest of two Air India employees for “derogatory remarks”; two young girls arrested in Mumbai for posting Facebook comments after Mr. Bal Thackeray’s death, will also be exhibited as the weakness in the law.

Government’s view

The government, on the other hand, has already stated in several public consultations that expressions such as “grossly offensive”, “menacing”, “annoyance”, “inconvenience”, “danger”, “obstructions”, “insult”, “injury”, “criminal intimidation”, “enmity”, “hatred” and “ill-will” also appear in other legislations such as Section 20 (b) of the Indian Postal Act 1998, Section 503, 504, 507, 295, 298, of the Indian Penal Code (IPC). In many of these cases under the IPC, imprisonment or fine or both can be levied. Further the government is likely to argue that while the rationale of the Act is “to protect communal harmony and peace”, its misuse by a police officer cannot be seen as a flaw with the Act itself.

Mr Sibal had, following the arrest of the two girls in November, committed to issuing guidelines to State governments and Union Territories, elevating the level of Police Officers whose permission may be required before ordering an arrest under Section 66A of the IT Act. Subsequently, on January 9, 2013, an advisory to State and Union governments was issued where the approval for such arrests was elevated to “an officer not below the rank of Inspector General of Police in metropolitan cities or of an officer not below the rank of DCP or SP at district level”.