I feel that the decision to strike down 66A was guided by the perception, by the optics that it was a draconian section
Section 66A was not drafted with the wrong intent, to curb the growth of internet or to instil fear in the minds of its users. In fact, the government was working overtime to aid proliferation of the internet and encourage more and more people to get online, especially in rural areas.
The idea and the process through which the amendment was brought in were in accordance with the best practices in the developed world. Laws in other countries such as the US, the UK and Australia were studied. Consultations were held with different stakeholders, after which the draft amendment was cleared by the Union cabinet and tabled in Parliament. The parliamentary standing committee studied the bill, consulted with stakeholders and presented its report to Parliament. Soon after, it was passed, unfortunately in a din, and became an act. By the way, the RTI bill, which I initiated in the Lok Sabha, was also passed without the opposition present in the house.
To be fair to the government at the time, the amendments to the IT act were not pushed through in a hurry or undemocratically. It was not brought by way of an ordinance, for instance.
The intent behind section 66A was to bring about a synergy between the laws that governed the offline and online spaces. For a long time, there were no problems with 66A after it came into effect in 2009. However, in 2012-13, there were a lot of incidentsâ€•a professor was hauled up for posting a cartoon on Facebook in West Bengal and two girls were arrested near Mumbai for commenting on the bandh in the city after the death of Bal Thackeray.
In 2011, I took over as minister of state for communications and IT. In January 2013, we in the department of electronics and IT (DeitY) sent an advisory to all state governments, asking them to ensure that only an IG-level officer or above is permitted to invoke 66A. The advisory could not be made mandatory as law and order is a state subject. It did have a positive impact and there was a decline in the number of cases filed under 66A. More recently, a youngster was arrested in Uttar Pradesh for posting something on Facebook about Azam Khan. This happened because the advisory was ignored and a junior police officer applied the section.
There is a generation of people, not just in India but all over the world, who are active on social media. Most of them use social media responsibly. But there is a minority, almost a fringe, which does not behave responsibly on social media (and offline, too, probably). On social media, information can be distorted and people's right to privacy can be violated. Such actions can sometimes cause law and order problems. Such fringe elements should know that they are accountable for posts or tweets that malign, violate privacy and lead to law and order problems. However, there is a big difference between all of the above and caricaturing politicians. The internet without the latter would become a terribly dull medium. But we must remember that having an unregulated internet could be as dangerous as an over-regulated internet, if not more.
I feel that the decision to strike down 66A was guided by the perception, by the optics that it was a draconian section. To a large extent, this is true. However, the real problem lies in that 66A did not evolve with the internet. When I was MoS in charge of DeitY, I always stated that no law in the country, or in the world for that matter, was not set in stone. Governments should always be open to reviewing laws. The internet is the most evolving platform in the world and we need to keep reviewing the laws and rules that govern it. When I was in government, we were not averse to reviewing and re-enacting the IT act. We were open to new ideas on what we should do and how we should go about doing it.
The present government cannot leave the internet ungoverned. In the absence of section 66A, aggrieved netizens will have to file complaints based on provisions in the Indian Penal Code. And some sections of the IPC can be far more draconian than section 66A. Therefore, India needs a new section in place of 66A, one that is far more objective and unambiguous. The government should hold the widest possible consultations with various stakeholders before it begins the process of replacing section 66A.
Rather than allowing the internet to be governed by provisions in the IPC, the IT act should be the primary law that allows netizens their inalienable right to self-govern their internet. Recourse through IPC provisions could well lead to a scenario where the cure is worse than the disease.
I do not see this as a political issue. I would like to believe that most political parties would like to enable internet proliferation and be tolerant of dissent and anti-establishment voices online and offline. But no civil society allows its people to distort information or violate privacy. In Europe, for instance, citizens are allowed to demand that their digital footprints be erased permanently. India need not move in the direction of over-regulation, but it is in every netizen's interest to have a free, self-governed and democratised internet. And, for that, like we have a law of the land, we need a law of the net. Bringing in new provisions in the IT act will take a lot of effort and consultations, especially to eliminate ambiguity and misuse, and the exercise should begin immediately.