A Sad Day for Judiciary.. at Madras High Court

There is a strange a set of developments that has been reported from Madras High Court which reflects a serious threat to the way people look at Judges.

For records, I refer to the article “Judge Threatens Madras HC Chief Justice with contempt”

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According to this report, a Judge of the Madras High Court, has issued a  Suo moto judicial order against an administrative order of the Chief Justice constituting a recruitment committee to select civil judges.

The objection raised is to the presence of one individual member in the committee and not any decision of the committee. While raising the objections, the Judge Karnan has invoked caste and community considerations and passed remarks on his colleagues which could be considered as defamatory.

Additionally, he has held out an open threat to the Chief Justice that SC and ST atrocities (prevention) act will be invoked by him against the Chief justice Sanjay Kaul besides a contempt of Court proceedings, if his order is interfered with.

The bone of contention is the recruitment committee comprising 5 judges, namely Justices, V Dhanapalan, R Sudhakar, D Hariparanthaman, N.Kirubakaran and R Mala along with TN public Service Commission Chairman and other officers, which is to interview candidates for selection as civil judges. Justice Karnan has raised objection that Justice Dhanapalan has allegedly produced “bogus educational qualifications” about his bachelor and masters degree in law and also raised objections that the committee does not have a representation of a “Muslim Judge” and a “Christian Judge”.

Obviously, the Chief Justice of Madras High Court has referred the matter to the Supreme Court and a bench of the Supreme Court headed by the Chief justice of India will consider the reference on Monday (11th May 2015).

The incident has raised many issues that need to be addressed by the Highest Court and is likely to be a starting point for a greater debate on where our Judiciary is heading? and how our Government’s policies of appeasement of vote banks is corrupting the Judicial system in the country.

The incident has first of all raised an issue of whether a “Judge of a High Court can over rule the administrative decision of the Chief Justice by a suo moto judicial order?”. The alternate option available to the judge if he was aggrieved was to move the Supreme Court as a petitioner objecting to the Chief Justice’s order. There was also an opportunity for a member of public  to raise the issue before the Court through a PIL and if it had come before him, he could have acted. However the judge has taken the decision to use his Judicial powers to pass an order against the administrative decision of the Chief Justice and also tried to tie up the hands of the Chief Justice with a notice of “Contempt of Court” if he decides to use his judicial powers to over rule the decision. By this yard stick, any order of the single judge if taken up by a larger bench of the same court would be constituting a “Contempt of Court” according to the precedent set by this Judge.

The moot point now is that when the Supreme Court hears this matter,

Will this Judge also take a suo moto case against the Chief Justice of India that he has also committed a Contempt of Court?

If not, how does he distinguish that there would be contempt of court if the Chief Justice of Madras takes a decision to say constitute a larger bench of the Madras High Court to consider the objections raised by a brother judge but not when the Supreme Court takes it up?

Does this mean that in future objections against a single judge of a High Court can only be appealed or reviewed by a higher court and not the same court with larger bench?.

What will then happen to the decision of a single judge of the Supreme Court itself?

Will it be immune to further revision of any kind?

Obviously, Justice Karnan has raised an issue which is likely to cause a type of constitutional crisis.

Another issue that Justice Karnan has raised is on the educational qualifications of a fellow Judge. If the allegations are being made, they are defamatory in nature and possibly the victim fellow Judge has a case for “Suo Moto Registration of a defamation and Contempt of Court” case in his Court and pass orders that Justice Karnan should be further charged. If he does it, it will be an amusing  battle of the two judges each taking up contempt charges against the other and using their individual judicial powers to summon each other and pass orders against each other!.

(This hypothetical possibility reminds me of instances in the Indian mythology, about discussions on whether a Bramhastra can be invoked in defence against Bramhastra. Normally it is said that it is disrespect for the astra to do so. In Ramayana, at one instance Hanuman out of respect for Bramhastra submits himself to be bound by Indrajit though he had a boon of immunity against Bramhastra. This Judge Vs Judge fight each using the Contempt astra is similar to such an incident.)

At this point of time we donot know what evidences Justice Karnan has with him to prove his charge on Justice Dhanapalan, based on which he has pronounced some Judicial orders. If he is not able to provide the proof himself immediately before the Supreme Court on Monday when the hearing takes place, there will be a prima facie case of “Contempt against Justice Dhanapalan”. If he produces evidence, that will be a separate dispute where Justice Karnan is the petitioner and Justice Dhanapalan is the respondent and perhaps CBI will investigate. The Court of Jurisdiction for this is perhaps the Supreme Court and not the High Court of Madras.

Yet another dispute which has now come on the table is whether there can be “Dalit Judge”, “Muslim Judge” and “Christian Judge”?… And by implication, is Justice Karnan suggesting that there should be tags of  a “Hindu Judge”, “Jain Judge”, “OBC Judge”, “Yadav Judge”, “Reddy Judge”, “Khamma Judge”, “Lingayat Judge”, ..etc etc…?

This tagging of judges on the basis of caste and religion and threat of invoking SC & ST Atrocities (Prevention) Act for routine judicial matters such as a judgement of a Dalit Judge, is a worrying indication of corruption in the system. Justice Karnan is implying that if any of his decisions are questioned, there is a Caste angle to the opposition. This very implication itself is objectionable. His attempts to draw other controversies based on religion is likely to arouse further divide in the Judicial circles based on religion. The next logical objection will be whether in every case we need to check the religious affiliations of the Judge vis a vis the caste and religion of the litigants. If the two litigants are of different castes, may be it is necessary that the Judge should belong to neither of their castes (!).

If respect has to prevail in Judiciary, Judiciary should shed the tag of “Dalit Judge” or “Muslim Judge” or “Christian Judge” and declare that once a person assumes charge of a “Judge” at whatever level, he ceases to be recognized for his religion or caste. He should be considered to have given up his religion at least as far as his professional standing is considered. He should not seek any favours because of his caste or religion. This also means that any promotions of Judges should not be based on his being from a particular caste or religion.

I wish that the Supreme Court makes such a declaration when it hears the reference of the Madras High Court and declares that there is no religion for a Judge, he is deemed to have given up all his rights based on caste and religion as soon as he became the Judge and no law based on religion can be invoked by any judge.

As regards the alleged fraud by a fellow Judge on educational matters, the Supreme Court perhaps has the option to suggest that the complainant judge can petition with the Supreme Court with evidence and it could be a taken up as a separate litigation. It can also provide an option to the alleged Co-Judge to initiate defamation proceedings at the Supreme Court at a personal level.

All in all, the developments at Supreme Court tomorrow will be highly interesting and perhaps will be much more important than the Judgement in Jayalalitha case which is expected from the Karnataka High Court on the same day.

Will the media recognize the importance of the two disputes “Justice Karnan Vs Justice Dhanapalan and “Justice Karnan Vs Chief Justice of Madras High Court” both of which will simultaneously be before the Supreme Court tomorrow?.

Will Arnab Goswami have the guts to challenge if Justice Karnan is a real victim or a person suffering from persecution complex?

PS: This is not a “Fake News” nor an imaginary case study of “Karna”, the legendary character of Mahabharata. This is “Real” and belongs to the category of “Believe it or Not”.

We believe there is no “Contempt of Court” since what is presented here is based on facts before the public and the comments constitute a reasonable journalistic remark on a development of public interest.

If any Judicial person or authority is hurt by this report, (I am sure there will be many such souls living and dead), my sincere apologies to them since I share the same acute agony with them that the Indian Judiciary should come to this state of affairs and the highly respected Madras High Court has become an object of such discussion.

Naavi

Related Article:

Justice Karnan continues tirade against judges selection

SC slams Madras HC judge’s conduct

Madras HC Chief Justice seeks transfer of Justice Karnan

Karnan moves SC panel against Chief Justice Agrawal

Judge Karnan Takes Fight to SC/ST Panel

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Extent of Cyber Fraud related Loss in Indian Banks

In an answer given in the Parliament, the IT Minister, (based on RBI records) has reported  the following information on Cyber Frauds in Banks.

Year No of cases(Card and Internet Banking) Amount (Rs Cr)
2011-12 10048 38
2012-13 8765 68
2013-2014 9500 78
2014-2015(9 months Upto Dec 2014) 9362 60

At the same time, as per the Minister’s statement,  CERT IN has provided some details on the phishing incidents.

Year No of Phishing incidents
2012 887
2013 955
2014 1122
2015 84

Reference: Article in Business Standard

The undersigned had also asked for similar information from RBI through an RTI application which has resulted in the following data as on April 30, 2015

Year No of Cases Amount (Rs Cr)

Amount Recovered through Insurance

(Rs Cr)

Internet Banking Credit Card Internet banking Credit Card Internet Banking Credit Card
2009 268 1063 2.799 26.567 0 1.013
2010 257 450 1.077 7.752 0 0.912
2011 125 424 0.982 8.142 0 0.366
2012 97 465 3.919 11.129 0.107 1.269
2013 148 721 1.177 29.350 0.0005 5.302
2014 61 512 0.854 9.759 0 0.994
2015 (Upto March) 13 150 35.31 42.76 0 0.225

One can see that there is no correlation between what RBI has given to the undersigned directly and what the Minister has stated in the Parliament.

This lack of reliability of Cyber Crime data is what is making it extremely difficult for the industry to understand the impact of Cyber Crimes on business.

I recently had an an occasion to discuss this with the representatives of the Insurance industry also and found that there is virtually no clarity on the domain of Cyber Crime insurance though some of the insurance brokers have been offering it in the form of liability insurance. But if the Cyber Crime Insurance industry has to come out with useful offers that would provide confidence to the IT user community, then there is a need for a major initiative by the Government to give a boost to the industry in some form.The Information Security professionals in the country need to put their heads together and work out a plan  of action to leverage the Information security initiatives of user industries by appropriate cyber insurance coverage.

Naavi

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Cyber Law Vision 2018 for Digital India

Following is an article written prior to the Supreme Court judgement on Section 66A and the Net neutrality controversy. for one of the print magazines of a law College.  I welcome comments.

Naavi


 

Cyber Law Vision-2018

By

Naavi

It is the stated policy of the Government of India that better Governance can be achieved through Transparency, Efficiency and Economy. There is no doubt that all these “Good Governance” concepts can be better achieved by pursuing the “Digital India concept” and hence the Government is pushing ahead various projects towards achieving the objective of creating a “Digital India”. The “Digital India” concept encompasses the use of IT in Critical Infrastructure, Critical health Care, National Security, Internet of Things, the Big Data, Smart Cities, the Bullet Trains etc. The legal challenges which these technology developments would throw up are now staring at us.

To address the emerging challenges, we need to evolve a “Cyber Law Vision for Digital India”. Normally we say that law lags behind technology like the traditional Indian wife. But just as the wives of the 21st century are different and step either ahead of or hand in hand with their husbands, Cyber law also need to evolve as fast as the technology itself.

So, it would be appropriate if the “Cyber Law Vision of Digital India” is ready before the other technology related Vision projects of the Government are targeted for achievement.  I wish therefore that we try to develop a “Cyber Law Vision-2018” and assist the Government in ensuring that law moves in tandem with technology and does not lag behind.

It is the responsibility of leading law institutions in India such as the National Law Schools/Institutes to initiate the necessary steps to form a “Working Group” of visionaries and guide the Government in this regard. Perhaps IITs and IIMs also could be associated with this project since the Cyber Law of Digital India should also be acceptable to the technologists and business managers of Digital India.

As a starting point for a discussion, I place before this forum the areas of Cyber Law that need our attention for developing the “Cyber Law Vision-2018”.  The issues we need to explore are

1)      Cyber Terrorism and Cyber War issues

2)      App based services and Online retailer’s controversy

3)      Bitcoin Controversy

4)      Sec 66A issues

5)      Privacy and Freedom of Speech Issues

6)      Obscenity Issues in Cyber Space

7)      Technology dependence-Smart City issues

8)      Technology addiction and Social Media Issues

9)      Jurisdictional issues

10)   Netizen’s Rights and Net Neutrality Issues

It is not possible to explore all these issues in full detail in this article but we can  try to identify the types of issues that need to be addressed and set a direction for the policy. Once the basic direction in which the policy should proceed is identified, the Working Group can take it forward.

I will therefore only briefly address the issues taking a cue both from the problems that we have faced in the past and what we may face when the Digital India projects roll out one by one.

1)      Cyber Terrorism and Cyber War issues

Recently there was a crippling Cyber Attack on the IT infrastructure of Sony Corporation in USA.  It is believed that the attack could have been orchestrated by a State Actor. The level of sophistication that was used in the attack was considered to be beyond the capabilities of criminal gangs which often have attacked financial institutions such as Banks in the past.

Earlier attacks identified with State Actors involving the “Stuxnet” virus as well as the attacks on Estonia’s infrastructure was directed towards another State actor. It was therefore a “Cyber War” between two State Actors. However, the Sony Attack was an attack by an Enemy State on a Private Corporation.

Currently USA, China and many other countries are believed to be silently building up a “Cyber War Capability” and the software or hardware developed in such countries often have embedded Trojans that are meant to spy and take control of destination systems when need be. In such cases law needs to provide a proper support to the victims to take suitable action.

In 2009, NATO launched the “Tallin Manual” as an effort in developing International Law applicable to Cyber Warfare. We need to examine if this manual can be applied for the Sony Attack. Being a private sector Company, the resources of Sony to defend itself cannot match the offensive strength of another State Actor. If this is the fate of a large corporation such as Sony, then what would be the fate of Small and Medium enterprises? Will they be at the mercy of the organized attackers from an enemy state? Is it not the duty of the Government of a country to protect its citizens in such attacks? ..these are the issues that our Cyber Law Vision-2018 needs to address.

Perhaps there is a need to amend the Constitution by which an obligation is hoisted on  the State to protect the Cyber Assets of its citizens from an attack from across the physical borders either by Cyber Terrorists or a Cyber Army of an enemy state because the private asset is a soft target though their grudge is against the nation.

But if a Company in India suffers an attack like what Sony Corporation suffered, can it invoke the Constitution and claim compensation from the Government?…is an issue to be addressed in law.

2.      App based services and Online retailer’s controversy

Recently two controversies broke out in India. The first was that the app based taxi services such as Uber, Ola and TaxiForSure were charged with running  “Taxi Services” without the necessary licenses. The second was an allegation that online retailers like Flipkart and Amazon need to pay sales tax on goods stored at their ware houses by the fulfilment agencies.

In both these cases there was lack of understanding of the nature of the technical services rendered by the agencies and whether the laws that were applicable to the fulfilment agencies could be hoisted on the technical service providers who were actually “Intermediaries” under law.

In both the cases the Governments in the States had their way because the technical service providers did not challenge the decisions and take it to the logical legal conclusion but agreed to abide by the wishes of the Government.

We must understand that a service such as Uber is nothing but a “Digital Call Centre” which receives the calls from customers and connects it to the service providers. It is open to the organization to own its own taxis in which case it will be wearing two hats, one as a taxi service provider and the other as a call centre. It is wrong to expect the call centre operator to possess the license for all the services that he facilitates. At best this required a proper clarification on the service provider’s websites and not a re-defining of an E Commerce delivery model. Obviously we cannot expect makemytrip.com to have an airline license just because it connects the consumer to an airline ticket booking. But the Governments which wanted an excuse to raise their revenue could not understand.

Similarly the online retailers are also free to sell on their own account or simply facilitate the sale on their platform. The responsibilities in these instances can be different and it should be recognized.

It is reported that recently WIPRO has released an app from which several travel related services can be accessed by their employees. If proper clarification is not available, some people may claim taxes from them for running a travel agency.

At present ITA2000/8 may not to provide the necessary clarifications and that has caused the mis-interpretations. Some may jump to a conclusion that we need new sections inserted into ITA 2000/8 to accommodate such changes. But it may also be possible to achieve the objective by simply inserting some explanations without major amendments to the law. This needs to be explored in the vision document.

3.      Bitcoin Controversy

Yet another area where a controversy erupted in India last year was on the concept of “Bitcoin”. The discussion veered around whether Bitcoin usage is legal or not in India. RBI gave a clarification that Bitcoin is “Not a currency” and the Enforcement Directorate raided a few businesses dealing with Bitcoin exchange and shut down the services.  At the end of the controversy, little thought was given to the root cause of the controversy and the damage done to the development of “Virtual Currency” as a system rather than one specific currency called “Bitcoin” which unfortunately had already got itself established as a popular medium of exchange in the underground economy.

During these discussions, it was forgotten that “Virtual Currency” was simply an “Electronic Document” recognized in law as equivalent to a  paper document. It was open to the user to give it a value whether as equivalent to $500 or as dirt. By talking of banning of Bitcoin, people were actually curtailing the freedom of a closed group to use an exchange medium of their choice to exchange their services within the community.

Since Virtual currencies have an enormous potential to be used by the Government as a valid currency and there are concepts which can identify every unit of the virtual currency along with the associated transactions and provide complete accountability along with convenience. There is a need to debate if we have committed disservice to the Digital Society by looking at all Virtual Coins with coloured glasses.

4.      Section 66A Issues

Debate on whether Section 66A is constitutional or not is now before the Supreme Court of India. The controversy originated from the several cases in which the Police invoked the section to arrest persons for what is considered as politically unpalatable comments in Facebook, Twitter or Blogs. They were touted as “Defamatory”, “Causing Annoyance” etc.

In the entire discussion the fact that Section 66A was not meant to address Cyber Defamation and what caused the controversy was a misapplication by Police and some advocates to invoke it for defamation. People also fail to recognize that if we attack Section 66A as a whole and fight for its removal from ITA 2000/8, we will be taking away protection for Cyber Bullying, Cyber Stalking, Phishing , and Spam etc.

By the time a Cyber Law Vision 2018 evolves, perhaps Supreme Court would have already pronounced its verdict. May be during the process of development of the vision, we need to take into account what the Supreme Court says and ensure that the real purpose of Section 66A is not fully lost.

5.      Privacy and Freedom of Speech Issues

Without a specific law on Privacy, India has tried to address the privacy considerations in the digital world through data protection measures in ITA 2000/8. But the conflicts with the Freedom of speech issues and Security issues always go hand in hand with Privacy considerations. There is therefore a need to comprehensively review the privacy regulations in India and how to remove hindrances to development and security without hurting the democratic principles.

In this connection, concepts such as “Regulated Anonymity”, “Privacy Protection Zones” etc. need to be explored  and debated through the vision document.

6.      Obscenity Issues in Cyber Space

Obscenity is a concept which has different connotations in different cultures. India has a dichotomy of cultures with an extremely permissive society at one end and a traditional society at the foundation. Striking a balance between the two extremes is a difficult proposition for law makers.

Also, India has different standards in practice that is operating for different types of communication mediums and often the film industry has more obscenity embedded in songs and dialogues than what the internet is accused of.

We need to explore the possibilities of harmonizing  different mediums through the vision document.

7.      Technology dependence-Smart City issues

The proposed Smart Cities and the Bullet trains will be highly dependent on technology. The criticality will be so severe that technology should be reliable, fail safe and secure.  Criminals and enemy countries would be rearing to exploit opportunities to hold the country to ransom and throw up legal issues on intermediary responsibilities, Privacy issues, Jurisdictional issues etc. Strict law on paper supported by forensic capabilities and enforcement would be vital for deterring the criminals.

The vision document needs to address the need for such laws which are functionally supportive to the use of technology and at the same time act as a deterrent against misuse. This requires a balance to be achieved and the development of the document needs to have highly creative minds at work.

8.      Technology addiction and Social Media Issues

The increased dependency of Netizens on technology for communication driven by the Digital India concept where Government and Business will also be driving users to more and more intense use of mobiles in particular has raised serious psychological issues of “addiction”.

From the current state of being “Techno Savvy” to being an “addict”, is a small additional step. We have seen suicides attempted for issues such as “Dropped from being a friend on Facebook by a friend” or “Denied of Internet usage by the parents” etc. These indicate that we are already into the “Techno addiction era” and if we do not wake up and take remedial measures, then the society will have a serious problem.

In this context we need to debate if our law makers need to build ways and means of developing early warnings on emerging addiction, making counselling and de-addiction part of the responsibilities of the social media managers etc. We also need to debate … Is anonymity a problem? Should there be a check on virtual games involving sex and violence?… etc. These are issues to be addressed in our Cyber Law Vision 2018.

9.      Jurisdictional issues

Jurisdictional issues have been in discussion ever since cross border interactions developed in the physical world. The problems which the Internet introduced to the issue are too well known to require a reiteration.

What we may however debate is whether  the effectiveness of Cyber Law in any  a given country is seriously compromised if jurisdictional issues are not simultaneously addressed.  The question is what the use of a law is if it cannot be enforced?.

We need to therefore consider if it is time for each country to work towards a global cyber space treaty which addresses all aspects of cross border interference.

In this context it is necessary  to consider, whether  we need to mandate a Cyber Treaty under the umbrella of the UNO as part of the Cyber Laws of each country and whether seeding of such an idea can start with the Indian vision for Cyber Laws.

10.  Netizen’s Rights and Net Neutrality Issues

Close on the heels of the Jurisdictional issues are the issues of Net Neutrality and Netizen’s Rights that need a larger debate and accommodation in Indian laws. ITA 2000/8 did not consider these issues and the requirements of  Digital India  require clarity on such issues.

Globally there is a discussion that Internet is a fundamental right of the society and should be available free to all. Is it possible to mandate such a requirement in India particularly when certain Mobile Service Providers have shown an inclination to charge more for data than voice or to block Skype like services etc.?

We need to start discussing on such concepts by accommodating them into our Cyber Laws through the vision document.

To conclude, while there are several issues that we would like to address in developing a long range Cyber Law policy for India, only a few of them have been indicated in the above cases. If we start discussing in this direction, we would be able to develop more thoughts and the emerging Vision document can be a good guide to the Government for making our life in Digital India more orderly. We may need to organize several seminars across the country to address each of the issues and let the working group members participate in each of such seminars to gather opinions which can be considered for finalizing the vision document.

I urge National Law Institute, Bhopal to take a lead in this direction and initiate action for setting up a “Working Group for Developing Cyber Law Vision for Digital India”.

Naavi

(Na.Vijayashankar)

7th march 2015

Founder www.naavi.org

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TRAI follows the Free Speech Concept… Spammers rejoice!

It is unbelievable that TRAI could release more than 1 million email addresses of public on the Internet. But that is exactly what it has done and we are still trying to understand if it was an honest mistake or an intentional hit back at the activists.

Refer: Dumb TRAI makes millions of private email addresses public

There was nothing wrong in TRAI making the comments public. But was it necessary to release the unmasked email addresses? Or was TRAI not aware of such a practice?

Even assuming that the chair person of TRAI did not know and made an administrative decision “Let’s put all responses in public” his subordinates who handle IT must have known that harvesting of email addresses is a common practice by spammers in India.

If the IT people in TRAI decided to release the unmasked email addresses, then either  they were too lazy to mask the email addresses or more likely wanted to extend the controversy into another domain by teaching the activists who poured 1 million emails on their network a lesson in free speech.

It was not long ago that two other wise men at the Supreme Court had removed Section 66A of ITA 2008 which sought to curb spamming to grab headlines and proclaim that India is a free country and here spammming is “Free Speech”.

I wonder if it was NIC which handled the publishing of comments or one of the OTT service providers.

This is a fit case for a demand for the Chairman of TRAI to resign.

What will our new champion of net neutrality, Mr Rahul Gandhi say on this privacy breach?

Naavi

 

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Intricacies of Net Neutrality and Need for a Constitutional Amendment

After three weeks of intense debate, the discussion on Section 66A has passed onto the next stage of what further action is required to be taken. Further discussions will perhaps resume based on what the Government does or what Supreme Court does suo moto. In the meantime an equally raging debate has emanated on the issue of Net Neutrality.

Knowingly or unknowingly the Supreme Court bench on Section 66A has already declared that any content posted through internet or mobile either on a website or to another person by way of communication are to be considered as “Free Speech” and can be regulated only within the exceptions provided by Article 19(2). The Net Neutrality debate cannot therefore be discussed ignoring this legal position.

A proposal by Airtel to introduce a data plan which may provide incentives for subscribers to visit specified websites with a subsidized cost has sparked off a debate on whether this move is a step towards breaking the net neutrality.

The Airtel proposal is now with TRAI which has called for public views. DeiTY has also formed its own committee to deliberate on the issue and the media is adding colour to the debate.  www.netneutrality.in has taken up a crusade against the proposal and invited the public to submit responses to the consultation paper published by TRAI. The last date for submission of comments is 24th April 2015. Copy of the consultation paper is available here.

A beautiful and informative video has been prepared and posted on you tube by AIB (All India Backchod) that explains the concept.

In short, “Net Neutrality” is a concept which demands that “There should be no discrimination built into access of data on the Internet”.  All data should be considered equal. I should not be asked to pay more for accessing one website than another.

Today it may appear that the Airtel Zero Plan is only a commercial deal between a few websites and Airtel and the consumer will get a lower charge to use some data services and pay higher charges to use some other data services.

But once the idea of charging more for WhatsApp and Skype is admitted, the commercial interests will slowly dig their heels and ensure that all decisions on the Internet would be determined by how much paisa you can pay to the service provider. It will usher in a new era of “Corruption” in the internet access system in which smaller players have no chance to survive.

The Digital divide between the digital haves (established players on the web space who can pay for easy access to their resources by public) and the digital have nots (who cannot pay this additional tax) will widen.

For example, the bandwidth may be diverted by the service providers in such a manner that if you want to visit  a preferred website and pay Rs x per KB of data,  you will pay Rs 2x (or more) per KB of data if you want to visit www.naavi.org or www.prpoint.org. There is no doubt that ICICI Bank will ensure that accessing State Bank of India would be more expensive.

All Government websites will be reduced to second class sites since no body in the Government will take the lead to pay extra to Airtel and other service providers just to keep parity with private sector. Smaller people will lose out because they will not have the resources to compete.

In the end, all “Money Haves” will become “Digital haves” and create a cartel. If anybody expects that consumers will benefit by being able to visit some websites for free or at below par rates, they will be fools. For the business, the subsidy they pay to the service provider today is an investment for the future and they will recover far more from the same consumer in some manner even if they have to wait a little to eliminate other smaller players.

Alternatively if every body with money power registers their sites with all the the service providers, for better service to their customers, there will be a new licensing regime managed by the private sector and the consumer will end up picking up higher cost for all the services. This will be a second level domain licensing system which will kill the Internet as we know till today permanently.

In fact, several years ago, a similar attempt was made by Internet Service Providers to block VOIP services. The issue was partially resolved by bringing it under the licensing parameters but the discrimination still persists.

Already this discrimination is being practiced in different forms. One example may be the system of Google Ads where by certain links are placed ahead of  search results. Many Apps run a free version supported by Ads and a paid version where Ads are removed.

The Digital TV transmission is another area where the service providers call the shots and maintain a differential pricing for different channels.

The debate therefore is an intricate battle between free speech advocates and the commercial interests.

In fact some free speech advocates who supported Scrapping of Section 66A as a curb to freedom of speech,  have already switched to  supporting the Airtel Plan on the grounds of “Freedom to do business”.  Commercial interests have a great power to corrupt our long term vision. We need to guard against it.

While we complain about discrimination on the Internet, we must remember that this is the last bastion of the “Equal Rights for All” principle. Though we swear by our constitution and say all Citizens are equal, we find various excuses to discriminate one citizen against the other. The entire system of reservations whether it is based on caste or religion or gender, they are all based on an acceptance that some are more equal than others.

Our Supreme Court swears by Article 19(1) and at the same time allows a Section 498A to be present in our laws which is a monument of gender based discrimination in law. If Airtel announces that they will provide concessions and reservations to certain caste and religion, then all our politicians will start speaking of our Constitution and why net neutrality should not be applied in our country. Even our Courts will uphold such arguments because such discrimination is in built in our constitution which has long given up its principle of “Equality and Justice for all”.

As long as this hypocrisy remains in our system, it is difficult to prevent the gradual breaking down of net neutrality concept.

If we want to preserve the net neutrality, we need to fight for an “Amendment to our Constitution” to incorporate “Access to Internet at a minimum bandwidth as a fundamental right”. Like the thoughts that prevail in some EU counties, Internet should be free and available to every citizen. May be a reasonable cost is acceptable but not with an inbuilt discrimination.

We therefore need to fight the current Airtel plan under three fronts.

The immediate requirement is to get the proposal rejected by TRAI because it is a curtailment of freedom of speech by cost manipulation and anti constitutional under Article 19(1) of our constitution.

Secondly, we need to set up a “Netizens Rights Commission” which is a long standing demand of Naavi.org first raised after the 2008 amendments to ITA 2000 in the context of Section 69A and then again as a “Charter of Demands by Netizens”.

Thirdly the Parliament has to debate a constitutional amendment to incorporate the requirements of the Digital India and the Right of Netizens.

I would invite all the net neutrality protagonists now to come together and start a process for writing a draft  “Constitution for the Netizens of India” which is truly representing democratic principles of “Freedom and Equality for all” which is not present in the current constitution that guides us as Citizens of India. Such a constitution for the Netizens of India can completely ignore the caste, creed and religion of people and treat all Netizens as equal. A template for such a Cyber Democracy was also presented through these columns long time back and have been consigned to the archives. We may revive it now and create a constituent assembly of the Netizens of India to write the Constitution for the Netizens of India. Then probably we will be able to develop a draft which can be integrated into our existing constitution or can be a model on which our existing Constitution can be made a constitution of a “Democratic,Non Discriminatory Society”

Naavi

 

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All Articles on Section 66A at one place

Over the last one month, several articles have appeared on Naavi.org and also elsewhere discussing Section 66A. In order to have all these articles at one place, I am trying to put together this page with links to both articles within Naavi.org and outside (through Google)

Articles in Naavi.org:

Site Search Google (New Posts) :66A:

Site Search Google (Old Posts) :66A:

Google Search Section 66A+vijayashankar

 

Google Bing
Google News Section 66A

Google Web Section 66A

Google Videos Section 66A

Google Images Section 66A

Bing Web Section 66A

 Bing News Section 66A

Bing Videos Section 66A

Bing Images Section 66A

 

 

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