'Although I am from a different party, I would support this government if they draft an unambiguous section to replace 66A. That is the need of the hour, not from the government's point of view, but from the netizens's point of view,' says former IT minister Milind Deora, in this column exclusive to Rediff.com
The erstwhile government's intent in enacting Section 66A -- incidentally, done well before I became minister of state for communications and IT -- was very clear: That we were doing our best to increase Internet proliferation, doing our best to build up Internet infrastructure, especially in rural backward areas. Our intent was to get more people online and to allow them to use the Internet freely, without fear.
The intent behind 66A was constructive and participative, it was not an intent to curtail freedom of expression or freedom of speech online, or any of that. There is no doubt about this in my mind. Nor did the government want to harass anyone or give politicians an opportunity to misuse their power.
Frankly, when this law was drafted in 2008, the Internet looked very different from what it is now.
But the optics and perception about 66A did get very badly altered in the last year which was why I joined people in celebrating the death of a section of the IT Act that was spreading fear.
The online space by and large is a very cosy, democratic space, but there are a few people, a fringe minority really, who use fictitious accounts and maybe doctor conversations, videos, photographs of people, and post them online.
This has its own issues -- it can create law and order problems or lead to serious distortion of facts and defamation. It can even lead to suicides. We need a law to ensure this does not happen.
Where 66A made a mistake, we did try to fix it many a time, yes we did. When I was minister, the government, and my ministry in particular, issued an advisory to state governments in January 2013 to allow only an inspector general level police officer, or higher, to invoke 66A. That resulted in lower cases of abuse, and misuse of this section fell considerably, except for the recent case in Rampur, UP.
But now that 66A has been scrapped, here is an opportunity to redraft a far more unambiguous section. Because the other risk is that, in the absence of 66A, one will have to resort to Indian Penal Code provisions which are far more draconian than 66A was. This could lead to greater harassment.
The present government will have to fill 66A's place, by enacting a new, modified 66A that is far more unambiguous and objective, and they should do that after the widest possible consultations so the grey areas of 'menacing content' are clearly defined.
It is simple, really. If someone posts something which is doctored or defamatory, the aggrieved party should be able to take the perpetrator to court.
I don't think anyone is batting for a lawless, free-for-all society, online or offline. As a civilised society and a liberal democracy, we must enact legislation that is similar to what exists in most of the developed world.
Some people will say there should be no law, but that to me is not acceptable. You have to have a law to govern cyberspace and it is in every netizen's interest to have a law, because ultimately, if you are the victim of an online defamation campaign, where lies and canards are being spread about you, you should have the right to take action. But right now, it will be under a more draconian law.
Which is why I say Section 66A has to be filled by the government. We need to have something that regulates, we don't want over-regulation, we don't want ambiguous regulations like what was there in the past. But we definitely don't want complete unregulation which can lead to regulation by Indian Penal Code provisions.
For that will be counter-productive. The government has to immediately start the consultative process for replacing the section and amending the IT Act.
The process followed whilst enacting Section 66A was not faulty. The government at the time felt the need to have a law which is based on best practices followed in most of the developed world.
The government looked at what existed in Australia, the United Kingdom, and the US, and drafted something similar. Even they have words like 'menacing content,' by the way. But that doesn't justify ambiguous terminology!
The amendments were then drafted, taken to the Cabinet, brought to Parliament, sent to the Standing Committee, then brought back to Parliament where it got passed. Without a debate, unfortunately.
When I was initiating the Right to Information debate in Parliament there was no Opposition present in the House. The RTI law got passed without a debate as such. But that doesn't mean the process of enacting the law was faulty.
The process the government followed was a fair process, the right procedure, and this government too will have to follow the same procedure the United Progressive Alliance followed to enact another law.
But my limited point really is they should move to fill that space vacated by 66A, otherwise it can lead to more harassment and ultimately, we have to give those who are affected by this fringe minority online a chance to legal recourse.
If you ask me, the way I would have liked it to play out was rather than it going to the court and the court striking down a law -- that creates another issue of tension between the judiciary and the executive; it could be construed as judicial overreach though no one is talking about it -- was for successive governments to have reviewed it with an open mind.
There is no reason why any government would not have wanted to amend it to make it less ambiguous and objective.
I would have preferred if the executive and legislature said, 'Look, this was drafted in 2008, in 2015 the Internet has changed, social media has evolved considerably in India and the rest of the world in the last seven years, and we are looking at reviewing it. Maybe the provisions were very subjective and ambiguous, we should do away with that, and brought an amendment to the IT Act.'
The repeal, at least for me personally, was that it symbolically gave people the confidence that now the Internet is safe. It was a win for symbolism, but that is not enough now, because we can congratulate and high-five each other in 140 characters, but we can't spell out the challenges ahead in 140 characters.
I am glad people are saying ok, the law in its previous avatar is dead, "those provisions will not be used against me", but that also is a scary thought because that is also giving the minority fringe elements online freedom to doctor and distort information, and that is equally dangerous for the democratisation of the Internet.
That is dangerous for any civil society anywhere. We are today the only country in the world that does not have such a law.
Whether we like it or not, we are the only country that is not allowing its citizens the right to self-governance on the Internet.
People should understand that the vast majority online are people who want to post information, share thoughts, caricature us politicians, not spread lies or interfere in people's private lives. It is time for all of us to stand up and take control of that world, and the first step in taking control is where an ambiguous section has been removed, but the second step must be to have a very unambiguous section in place.
And although I am from a different party, I would support this government if they draft an unambiguous section to replace 66A. That is the need of the hour, not from the government's point of view, but from the netizens's point of view.
It is in the netizens's interest to have an unambiguous section.
It is is in our interest to have a law that drowns out those who are playing mischief online and hurting the democratic principles of the Internet by morphing images or invading people's privacy.
It will also prevent the misuse of the Indian Penal Code, which is also in the netizens's interest.
Ultimately, unless you are part of the lunatic fringe, you must fight for that freedom. For, in the absence of 66A, we have sent a message to those who want chaos and anarchy online that you are free to do as you please.
So there is absolutely no debate in my mind that it is important to fill 66A with a new 66A, but one which is less ambiguous and as objective as can be.
66A did become a monster and a large part of it was deserved because it was being misused. But now here is an opportunity. I see an interesting time for the government to fill that section with something else.
I would like it if the debate in the country about 66A could now shift to that.
As told to Saisuresh Sivaswamy