Tim Berners-Lee, the inventor of the World Wide Web, said recently that he was losing sleep over the attempts by governments to tighten their control of or spy on the Internet. The computer scientist was speaking about moves in the United Kingdom and the United States to widen surveillance of public communications, but his comment echoes the growing concern among civil rights and free speech advocates in India about several provisions of the Information Technology Act and Information Technology (Intermediaries Guidelines) Rules 2011. At the heart of the issue in this country is the conflict between the constitutional right to freedom of speech and expression, and arbitrary, often political, actions that have begun seriously to erode it. Attacks on individuals and inconvenient opinion are being mounted — most recently in the Mamata Banerjee cartoons case — using Section 66 A of the amended IT Act, 2000. This provision makes it a crime to send, using a computer resource or a communication device, information known to be “false” with the aim of causing “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill-will”. Emails are also similarly covered, and the penalty for the offence is a jail term of up to three years. Used in conjunction with provisions of the Indian Penal Code, or separately, such vague definitions are offensive weapons in the censor's toolkit. Crucially, they far exceed the reasonable restrictions on free speech identified in Article 19 (2) of the Constitution.
In the way they are framed, some provisions of the IT Act and the 2009 amendments, such as Section 69 A (power to issue directions for blocking of access of any information through any computer resource) and 69 B (power to authorise monitoring and collection of traffic data or information) pose serious questions on India's commitment to open democracy. But newer rules covering intermediaries hosting content online are even more controversial and arbitrary. Several Members of Parliament have voiced their concern on these rules, under which anyone can demand the scrubbing of information online on flimsy grounds, and entities hosting the content must act in 36 hours. There is little surprise that a Rajya Sabha MP, P. Rajeeve, has moved a motion calling for the annulment of the intermediaries rules. His move has inspired a signature campaign and gained wide popular support. The best course open to the Centre is to revisit the IT Act and rules, and hold a national consultation of the kind organised by Jairam Ramesh on genetically modified crops. Cyber terrorism cannot be used as a bogey to subvert constitutional guarantees on free speech.
