#India – The Draconian #ITAct


Draconian act

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May 20, 2013 : dECCAN hERALD

The arrest of Jaya Vindhyala, president of the People’s Union for Civil Liberties(PUCL) in Andhra Pradesh, is the latest case of arbitrary and highhanded police action to restrict freedom of expression.

The case specifically involved online freedom of expression because the alleged offences related to a posting on a Facebook page. Vidhyala had made a posting critical of Tamil Nadu governor K Rosaiah and an AP legislator Amanchi  Krishna Mohan. While the same information published by the local print media had invited only a notice of  legal action, its online publication  has invited arrest and prosecution. It is difficult to understand how there can be different standards of response to the same information in two forms of media. Online media postings  are made by individuals and they are more vulnerable. Freedom of expression is basically the individual’s freedom to express opinions and it should be guaranteed and protected, whatever the medium of expression.

While dealing with the case, the Supreme Court has directed state governments to not arrest anybody  for a post on a networking site unless the action is cleared by senior police officials. But this is no relief because senior police officials are also vulnerable to pressure from political authorities who are offended by postings in online media, as in this case. Vindhyala’s postings contained only matters revealed under the RTI Act and other information in the public realm. And yet she is being prosecuted. This is because Section 66 A of the Information Technology Act, under which the action was taken,  is  very restrictive and draconian.

The section in effect differentiates between an ordinary citizen and a person who uses social media for comment. While the citizen has a defence under Section 19(1)(a)  of the Constitution and other relevant provisions of the law, the netizen can be proceeded against under Section 66 A. This is anomalous because social media is actually gaining more popularity and importance than conventional media and they provide an empowering forum for individuals.

This section should be removed from the IT Act because it is discriminatory and liable to be misused, whatever the guidelines that are given to the police. A number of cases of highhanded actions under the provision  have come to light, including  the arrest of two girls in Maharashtra who questioned the shutting down of Mumbai in the wake of Bal Thackeray’s death. Union Law minister Kapil Sibal’s recent assurances on the bill in parliament were not convincing.

 

SC – No arrest for posts on social sites without permission #ITact #Censorship


PTI

In view of public outrage over people being arrested for making comments or liking posts on Facebook, Centre had issued advisory not to arrest a person in such cases without prior approval of a senior official.
In view of public outrage over people being arrested for making comments or liking posts on Facebook, Centre had issued advisory not to arrest a person in such cases without prior approval of a senior official.

The Supreme Court on Thursday said that no person should be arrested for posting objectionable comments on social networking sites without taking prior permission from senior police officials.

The apex court, which refused to pass an order for a blanket ban on the arrest of a person for making objectionable comments on websites, said state governments should ensure strict compliance of the Centre’s January 9 advisory which said that a person should not be arrested without taking permission from senior police officials.

“We direct the state governments to ensure compliance with the guidelines (issued by Centre) before making any arrest,” a bench of justices B.S.Chauhan and Dipak Misra said.

It said the court cannot pass an order for banning all arrest in such cases as operation of section 66A (pertaining to objectionable comments) of the Information Technology Act has not been stayed by the apex court which is examining its constitutional validity.

In view of public outrage over people being arrested for making comments or liking posts on Facebook, Centre had on January 9 issued advisory to all states and UTs asking them not to arrest a person in such cases without prior approval of a senior police officer.

The advisory issued by the Centre says that, “State governments are advised that as regard to arrest of any person in complaint registered under section 66A of the Information Technology Act, the concerned police officer of a police station may not arrest any person until she/he has obtained prior approval of such arrest from an officer, not below the rank of Inspector General of Police (IGP) in metropolitan cities or of an officer not below the rank of Deputy Commissioner of Police (DCP) or Superintendent of Police (SP) at district level, as the case may be.”

The apex court was hearing an application seeking its direction to the authorities not to take action for posting objectionable comments during the pendency of a case before it pertaining to constitutional validity of section 66A of the Information Technology (IT) Act.

The section states that any person who sends, by means of a computer resource or communication device, any information that was grossly offensive or has a menacing character could be punished with imprisonment for a maximum term of three years, besides imposition of appropriate fine.

The petition was also filed regarding the arrest of a Hyderabad-based woman activist, who was sent to jail over her Facebook post in which certain “objectionable” comments were made against Tamil Nadu Governor K.Rosaiah and Congress MLA Amanchi Krishna Mohan. After filing of the petition, she was released by a district court at Hyderabad.

Jaya Vindhayal, the state general secretary of People’s Union for Civil Liberties (PUCL), was arrested on May 12 under section 66A of the IT Act for the “objectionable” post.

According to the police, she had also allegedly distributed pamphlets making objectionable allegations against Rosaiah and Mohan before posting the comments online.

The matter was mentioned before the bench by law student Shreya Singhal, seeking an urgent hearing in the case, saying the police is taking action in such matters even though a PIL challenging validity of section 66A is pending before the apex court.

She had filed the PIL after two girls–Shaheen Dhada and Rinu Shrinivasan–were arrested in Palghar in Thane district under section 66A of IT Act after one of them posted a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death and the other ‘liked’ it.

On November 30, 2012, the apex court had sought response from the Centre on the amendment and misuse of section 66A of IT Act and had also directed the Maharashtra government to explain the circumstances under which the 21-year-old girls were arrested.

Pursuant to the notice issued by the apex court, the Centre had informed it that the controversial provision in the cyber law under which two girls were arrested for Facebook comments did not curb freedom of speech and alleged “high handedness” of certain authorities did not mean that it was bad in law.

The Ministry of Communication and Information Technology in its affidavit had said that an advisory had been issued to all the state governments, saying that due diligence and care may be exercised while dealing with cases arising out of the alleged misuse of cyberspace.

The Maharashtra Government in its reply had said the arrests of girls in Thane district were “unwarranted” and “hasty”, which “cannot be justified“.

The state government had also submitted an affidavit stating that the Thane police SP (Rural) had been suspended for arresting the two girls despite the instruction by the IGP not to take such action.

The court had earlier issued notices and sought responses from governments of Delhi, West Bengal and Puducherry where a professor and a businessman were arrested under section 66A of the Act for a political cartoon and tweeting against a politician respectively.

 

SC order regarding impleading Jaya’s #ITAct case


Message from kavita srivastava
The Supreme Court vacation bench of Justice BS Chauhan and Justice Deepak Mishra today heard the matter of Shreya Singhal VS UOI, where an  application was moved by the petitioner for the impleadment and stay on the  proceedings against  Jaya Vindhyala, President PUCL AP, who had been booked and arrested under Section 66A of the IT Act by the Chirala Police Station in Prakasham district, AP.
The bench was pleased to issue notice to the State Government of AP and further directed compliance of the central advisory dated 27/01/2013 by which an arrest u/s 66 A cannot be made made without sanction of the police officer not less than a rank of a DCP (SP) of . This direction was also issued to all the State Government to ensure compliance.
The court heard the case for about 6 to 7 minutes. The counsels present were : Soli J Sorabjee, for the petitioner, Siddhartha Luthra, ASJ and lawyers Apar Gupta and Karuna Nandy.
This order means that the Central Advisory has now been made law. Where no inspector can make arrests unless the SP level officer sanctions.
We donot know whether in  Jays’s case the central advisory was complied with.

 

 

Rights rap on West Bengal Government #FOE #FOS


– Strongest charge against Ambikesh was an ‘afterthought’MONALISA CHAUDHURI, Telegraph

 

The state human rights commission has refused to accept the Mamata Banerjee government’s justification for the arrest of Jadavpur University professor Ambikesh Mahapatra, citing depositions by top police officers to surmise that the strongest charge against him was an “afterthought”.

“The commission is constrained to put it on record that it finds it difficult to accept the reasons given in the letter of the additional chief secretary for non-acceptance of the commission’s recommendations,” it said in a communiqué to the state government on Tuesday.

The rights commission cited two reasons for not accepting the state’s argument that there was no violation of human rights in the arrest of Mahapatra, who had been first charged with outraging the modesty of a woman for circulating an Internet joke on Mamata Banerjee.

“Senior police officers, including the city police commissioner, had deposed before the commission that Mahapatra was arrested after being charged with a cognisable offence under Section 509 of the IPC. The fact that he was not arrested under Section 66A(b) of the Information Technology Act proves that this stringent section was included as an afterthought,” an official of the commission said.

“It appears that his arrest came first and then the charges were slapped to put him behind bars without considering whether the alleged offence merited these charges,” he added.

Justice Ashok Ganguly, the chairman of the rights commission, said circulating an Internet joke was in no way an offence that called for penal charges of the kind slapped on the chemistry professor. “It was an innocuous mail, based on characters from a movie for children (Satyajit Ray’s Sonar Kella). How could the police slap such stringent charges for circulating a mail like that?” he said.

Legal experts said invoking Section 509 (intending to insult the modesty of a woman by words and gestures) was “inappropriate” in Mahapatra’s case because the presumed victim never filed a complaint against him.

“According to the rule book, only a complaint in writing from the victim — in this case the chief minister — about outrage of modesty would have made him liable to be charged under Section 509. Circulation of an Internet joke with apparently nothing in it that can be construed as outraging someone’s modesty is, in common knowledge, out of the purview of Section 509,” a veteran lawyer said.

Sections 509 and 500 (defamation) were ultimately omitted from the police chargesheet against Mahapatra. The only charge retained against the professor was under Section 66A(b) of the Information Technology Act (electronic circulation of objectionable content).

The rights commission not only declined to accept the premise under which Mahapatra had been arrested, it also picked holes in the state’s contention that the professor and his neighbour Subrata Sengupta were “rescued from an agitated mob”.

Police officers during their deposition admitted that the arrestees had been wrongfully restrained before being rescued and taken to the police station. Then why was no action taken against the people who had wrongfully restrained the duo? Instead, the victims were treated as accused and charges were drawn up against them,” the commission official said.

Mahapatra said he would write to the Prime Minister’s Office again about the state’s attempt to justify the harassment he had to endure. “The government has made a mockery of its assurance of ‘immediate redressive action’ to the PMO. I will let Prime Minister Manmohan Singh know about it.”

Responding to Mahapatra’s previous letter, the PMO had prodded the Bengal government last December to “take necessary action” in the case. The state rejected all the recommendations of the rights commission last week.

The rights body had recommended departmental action against two police officers — Milan Kanti Das and Sanjay Biswas — for allegedly harassing Mahapatra and slapped a fine of Rs 50,000 each.

Mahapatra has pinned his hopes on Calcutta High Court, where a PIL filed by lawyer and former mayor Bikash Ranjan Bhattacharyya is scheduled for hearing in June.

The chemistry professor will not be moving court individually because he doesn’t want to be away from the classroom for long. “Over the past year, I could not attend many classes because of court hearings. I don’t want to miss classes anymore. Otherwise, my students will suffer,” he said.

ADDITIONAL REPORTING BY SUBHANKAR CHOWDHUR

 

 

Mumbai Police Is Checking What You’re Downloading #Privacy


By  on Apr 3rd, 2013  |  

Mumbai Police has set up a Social Media lab, along with team of cyber experts, and with the help of ISPs, is conducting random checks on content that is being downloaded from certain sites, including torrents, and especially Internet users with large data downloads, reports DNA, quoting Himanshu Roy, Joint Commissioner (Crime), Mumbai Police. As per the report, on the basis of a complaint from a copyrights holder, the police warned and let off an IT professional who was using his office computer (and we assume, connection) to download torrents. The company emailed its employees to stay off torrent sites.

Copyright owners have, in the past, got websites blocked, hired people to conduct likely-to-be-illegal DDoS attacks, and got all-encompassing John Doe Orders to get anything they want blocked.

Our Take

While it quotes a “cyber security expert” who says that the Copyright Act, the IPC or section 66 of India’s IT Act can be used in this case, it doesn’t question why the person was let off with a warning. That seems rather arbitrary, because if a complaint has been filed, surely the decision on whether to let the person go or not should be left to the Judiciary, not the Police. Or does the Police usually go warning people and letting them go after copyright owners file a complaint? The report doesn’t mention the complainant, the user, the company involved, the content being downloaded or the torrent site.

Is this tapping of citizens’ Internet connections legal? If you look at the 1996 PUCL judgment on (phone) tapping, it clearly points out:

Telephone – Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated
communication technology, the right to sold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of subrosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by she authorities of the day.

The judgment states:

1. An order for telephone-tapping in terms of Section 5(2) of the Act shall not be issued except by the Home Secretary, Government of India (Central Government) and Home Secretaries of the State Governments. In an urgent case the power may be delegated to an officer of the Home Department the Government of India and the State Governments not below the rank of Joint Secretary. Copy of the order shall be sent to the Review Committee concerned with one week of the passing of the order-.2. The order shall require the person to whom it is addressed to intercept in the course of their transmission by means a public telecommunication system, such communications as are described in the order. The order may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the order.

The Police and their CyberCrime cells proactively scanning Internet connections certainly amounts to invasion of privacy.

Readers should also be aware that India doesn’t have a privacy law, as was pointed out by the Standing Committee that criticised the Indian government’s Unique Identity project, saying that

“In the absence of data protection legislation, it would be difficult to deal with the issues like access and misuse of personal information, surveillance, profiling, linking and matching of data bases and securing confidentiality of information etc.”

Maybe it’s time someone filed a case to prevent government organizations from snooping on its citizens, ad-hoc. If you’re not worried yet, take a look at the Home Ministry’s snooping tender that we’d written about.

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