Control of the Cyber Space and Civil Liberties in the Country

Control of the Cyber Space and Civil Liberties

in the Country

Pushkar Raj

India is a democratic country.We pride in the best protections provided

to our freedoms in our constitution comparable with the citizens of any

democracy in the world. However, lately these liberties have come under

severe strain due to various acts of the Indian government. One of the

actions that has the potential to restrict our right to freedom of thought and

expression is recently notified rules under the Information Technology

(Amendment) Act, 2008. The rules came into force in mid April 2011.

When the original Act (enacted in 2000) was amended in 2008, the

informed observers had apprehended that it might pose a serious threat to

freedom of thought and expression of the Indian citizens. However one

hoped that the rules would create a fine balance between the individual

freedom and cyber security concerns. That hope now stands dashed as

impact of the IT rules on the internet users become clearer.

Cyber communication is carried out through the intermediaries.

Intermediary means any person who on behalf of another person receives,

stores or transmits any information or provides any service with respect to

that information. It includes telecom, network and internet service providers,

web-hosting services, search engines, on-line payment and auction sites

and cyber cafes. In a way it is the whole gamut of cyber world.

Thus if you wish to regulate and strangulate the cyber communication

exercise the control over the intermediary. It can be done by putting them

under a liability that they debar certain categories of information which

might be open to subjective interpretation. If the intermediaries are under

coercive instructions not to host a huge body of information, then millions

who generate that information exercising their rights of freedom of thought

have no meaning for it. It is as good as not having that right if one is not

allowed to exercise it fully through its dissemination. That is exactly what

would happen with implementation of the above mentioned I T rules.

Under the new IT rules the intermediary is put under obligation to

withdraw any information that is grossly ‘‘harmful, harassing, blasphemous,

defamatory, obscene, pornographic, paedophilic, libellous, invasive of

another’s privacy, hateful, or racially, ethnically objectionable, disparaging,

relating or encouraging money laundering or gambling, or otherwise unlawful

in any manner whatever.’’ This is not only an exhaustive but also an extremely

subjective list because these terms have not been defined under the rules.

In fact one would argue that they cannot be defined conclusively. What is

obscene for X might be artistic for Y. So legally speaking, if you write an

article condemning ban on same gotra marriages dictated by some khap

panchyats you might be accused of indulging in ethnically objectionable

PUCL BULLETIN, AUGUST 2011 2

writing; if you put to question Sai

Baba’s status to godhood you might

be charged with defamatory writing;

if you document seedy aspects of

life of a public figure it could be

invasion of his privacy; even calling

for reforms in some religions could

be termed blasphemous.

According to the rules notified

by the government, contents that fall

in the above mentioned category

must be removed by the intermediary

within thirty six hours upon its own

knowledge or at being pointed out

by the ‘affected person’. This affected

person could be anyone on earth. In

other words, the rules are worse

than a king’s dictate in medieval

times who one thought would give

the other party at least a hearing

before issuing an order!

What are the implications of

such rules for a burgeoning cyber

connectivity that has shaken

dictatorships in the Middle East and

connected people on issues like

corruption and violence against

women at home? What is going to

be the fate of millions of blogs and

campaigns through face book? What

will happen to the life support of

democracy- free movement of ideas,

debate, dialogue, understanding and

consensus- on vital social, economic

and political issues? How does one

reconcile the new reality with the

fundamental right of freedom of

thought and expression guaranteed

under Article 19 of the constitution?

And at the individual level does not

that convey a message: ‘Do not think

or write out of the box. Get into a

pattern, conform to prevailing mores

and values; become a robot and one

dimensional human being!’

Besides, there is the question

of individual privacy that is always

prized by the human beings. The

rules invade it by mandating that the

intermediary must provide

information on an individual or extend

any such assistance to government

agencies on a request in writing who

are lawfully authorised to prevent,

detect, investigate, prosecute cyber

security incidents or any other

offence. This obligation to part with

information on an individual is a

serious breach of law of the land as

established in the Supreme Court

judgment in People’s Union of Civil

Liberties (PUCL)Vs. Union of India

(UOI) and Anr., (1997)1 SCC 301.

The court had held that the telephone

tapping is a serious invasion of an

individual’s privacy and had

prescribed guidelines for that which

includes authorization from a high

level official- union or state home

secretary.

So while your phone

conversation might be tapped after

being authorized by a top government

functionary, but any sub- inspector

of police might, in the name of

investigating an offence, go thorough

your hundreds of emails or ask for

details of your phone calls from the

intermediary on a simple request.

This means that while the

government itself wishes to intercept

or monitor a citizen’s privacy it will

follow the procedure, but it would not

do so when it would take almost the

same information from an

intermediary! Now this is really

contradictory, guile and

unacceptable.

At a larger level this

contradiction is at the heart of Indian

society and polity today. While we

celebrate procedural democracy with

periodic elections we have been

cutting on its substantive part in our

public life. Public assemblies and

protests are becoming rare. When

they are organized they are brutally

broken up sending the message

across the country that they are not

allowed anywhere. Similarly cyber

world is also sought to be monitored

and controlled. New I T rules are

enough indication of such a well

thought out policy. We must,

however, not accept it sitting silently.

We must spread awareness on

them and garner enough public

support against these rules so that

they are forced to be abandoned.

That is the only way to preserve our

constitutionally sanctioned

freedoms. 􀀀

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