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.
