Kapil Sibal says Facebook arrests wrong, mulls change in IT law to prevent misuse

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SummaryWe may ask them that unless the designated officer decides that the offence requires police action, no action should be initiated.

Days after the police arrested two young women in Maharashtra for an innocuous post on Facebook about the bandh-like situation in Mumbai following Bal Thackeray’s death, the central government has begun to consider the possibility of changing the information technology law to ensure it is not misused or abused.

Following national outrage over the police action, Communications and IT Minister Kapil Sibal had said he was “deeply saddened” by the arrests, and that the IT Act should not be “misused” to “throttle dissent”.

“We will talk to all stakeholders and if there is consensus, we will write to states asking them to designate senior police officers without whose clearance arrests under the Information Technology Act can’t be made,” Sibal told The Indian Express in an interview.

“We may ask them that unless the designated officer decides that the offence requires police action, no action should be initiated. It can be a IG-level officer or somebody senior, whose job it will be to certify that a particular case is fit enough to be proceeded against under 66A... You will have a fair level of protection (from the abuse of the law),” Sibal said.

Section 66A (sending offensive messages) of the IT Act provides for a three-year jail term for a wide range of offences from sending messages of a “menacing character” to “causing annoyance or inconvenience”.

The government, Sibal said, was open to considering all options on the law.

“We have a meeting on November 29. We will see if we need to put guidelines in place or should we prescribe that the power has to be exercised by a high-level officer and not left to a sub-inspector. All these matters will be discussed and if we believe that this law is so grossly inadequate or the law in every situation is liable to be misused, we may even go for a substitute,” Sibal said.

“But what that substitute should be, we don’t know,” he added. “Because that substitute must also serve a purpose. We can’t allow menacing threats also to be made through the Internet. There has to some law.”

It was important, the minister said, to strike a balance between freedom of speech and expression, and interests of the individual. “There are restrictions... How the restrictions are to be couched is to be decided. But I am sure we will be able to do it,” he said.

Sibal stressed the need to educate the police on the law.

“That problem is there... the cops are not aware of many laws,” he said. “But in a mature democracy, as we grow, officials get sensitised. The (instances of) abuse come(s) down. Those affected by the abuse will ask questions of those abusing the law. I am sure instances like the recent one (in Maharashtra) where there is an outcry against the misuse, people also get sensitised, as do the officials.”

Sibal, who is also a renowned lawyer, said that the two women in Palghar — Shaheen Dhada, who posted that the shutdown after Thackeray’s death was not necessary, and Rinu Srinivas, who ‘liked’ the post — should not have been arrested.

“The girls should not have been arrested. About that there is no doubt,” he said. “But I don’t agree with those who say that since the act is liable to being misused, it is unconstitutional and hence should be scrapped. By this logic, why don’t we do away with provisions in other laws, particularly the Indian Penal Code, that are routinely misused?”

Asked to elaborate, he said: “Let’s look at Section 66A (of IT Act). It says ‘any person who sends, by means of a computer resource or a communication device any information that is grossly offensive or has menacing character...’ What does this mean? Anything offensive can’t be acted upon. It has to be ‘grossly offensive’. Words like ‘grossly offensive’ and ‘menacing character’ can’t be defined... (Similarly,) in the constitution, you can’t define what is ‘public interest’, ‘decency’ or ‘morality’. You can’t define ‘reasonable’. But you have these in the constitution... In the IPC, you have the term ‘mischief’. Who is to interpret mischief?... The law is not bad, (but) the implementation may be faulty. We need to rectify that.”

The minister said there was “no denying that there has been abuse” of Section 66A. “For that we need to sensitise law enforcement agencies that it is not the intent of this law that any innocuous statement made or any opinion is liable to be acted upon. Arbitrary arrests can’t be made,” he said.

Asked for a reaction on the allegation that the government is trying to muzzle freedom of expression on the web by bringing in too many rules and laws, Sibal said, “Not government. They say Kapil Sibal. But, let me tell you, there is no such intent. In fact, you would know, I was not even the IT minister when Section 66A was brought in. A Raja introduced the Bill and Parliament passed the law in 2008. I came in 2010. And yet it is Sibal’s law!”

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