Kapil Sibal on Headlines Today with Rahul Kanwal

On 26th and 27th of this month, Headlines Today broadcast an interesting discussion  with Mr Kapil Sibal, the minister of Communications and IT. The discussion put Mr Sibal in the center stage and direct questions were put to him by the recent victims of Section 66A arrests including Mr Assem Trivedi, (Cartoonist who published anti corruption cartoons) the Palghar girl (who opposed Mumbai Bundh on Bal Thakre’s death on Facebook) and Mr Ravi Srinivasan( who tweeted about Karti Chidambaram’s wealth). There were also a few eminent Cyber Law aware professionals in the audience along with general public. Mr Rahul Kanwal moderated the show.

Mr Sibal being an excellent orator and an experienced advocate himself easily warded off the questions from the audience. He generally defended Section 66A stating that it only provides for “Reasonable restrictions” to the “Freedom of Expression” guaranteed by Article 19(1) (a) of the Constitution and the stray cases that are being talked about are errors of judgement on the part of the Police. He also stated that since the matter of constitutionality of Secion 66A is with the Supreme Court now, Government will wait for the views of the Supreme Court and take an appropriate decision.

Neither Mr Rahul Kanwal or the audience were able to confront and effectively argue against Mr Sibal. The advocates present were too tight-lipped to be able to provide a credible counter argument. Mr Sibal was even able to bully the advocates regarding whether Section 66A provided for arrest without warrant.

While watching the program I was reminded of an NDTV Big Fight debate in the year 2000 when the same Mr Kapil Sibal criticized ITA 2000 as a “Draconian Law” because Section 80 of the Act allowed “Arrest without warrant”. At that time, Pramod Mahajan was the IT Minisiter and Mr Sibal was an advocate in the opposition Congress party and he was reacting as a “Political Opponent” and not as a “Professional”.

Presently in ITA 2008, the same Section 80 remains and provides powers of arrest without warrant. In ITA 2000 passed by the NDA, the powers were vested only with the DSPs. Now ITA 2008 vests the same powers with the Inspectors. No body asked Mr Sibal if this did not make the law more draconian than what it was in 2000?

Secondly, I have maintained from the beginning that in all the recent cases of police excesses, it is not the law to blame but the Police misinterpreting the law. (Please see earlier article 1 in Naavi.org earlier article 2 in Naavi.org) .

I therefore expect that the Supreme Court is most likely to come to the conclusion that Section 66A is not against the Constitutional provision of “Freedom of Expression”. However the wide mis-perception about the section and the inability of the media to project the correct information to the public has created a situation where any decision by Supreme Court stating that “We donot think Section 66A should be scrapped or changed” would be seen as an endorsement of the actions taken by Police in all the recent cases. This should be avoided at all costs. In case the Supreme Court clarifies its decision in detail it will help marginally. But even that clarification will be lost in the din of the media misrepresentation.

The Headlines Today debate only extended this mis perception and did not provide the proper clarification on the topic.

It was necessary for the debate to corner Mr Sibal on whether mandatory provisions can be added to ITA 2008 in the next amendment for “Punishment of the Police officers” found to misuse the law. Police will continue to misuse the law with impunity since they act under instructions from the political leaders. Every time it is not possible to invoke Human Rights Commission. The vocal human rights activists only act when they have to support terrorists and criminals. When an ordinary citizen is wronged no human rights activists dear to the media would come forth to defend.

Mr Kapil Sibal is therefore responsible for ensuring that the law (ITA 2008) itself incorporates some safeguards for misuse. However despite many suggestions in this regard from Naavi.org itself, Mr Sibal is guilty of inaction. Mr Sibal is also directly responsible for the closure of Cyber Appellate Tribunal which is the apex judicial body specially formed under ITA 2000/8 to redress the grievances of Cyber Crime victims.

Unfortunately, Mr Rahul Kanwal or any of the advocates present in the debate who are supposed to be informed about these aspects on which Mr Sibal has a direct control raised these issues with him.

In summary, we can say that the debate was good and useful but could have been more useful if it had been properly handled. I must however congratulate Mr Sibal for his ability to convert an adverse situation to his advantage and his comments that there are many criticisms about himself including comments such as “Kill Mr Sibal” on the Internet and he has chosen to ignore them. This would have certainly evoked lot of sympathy amongst the audience and a projection of a freedom friendly attitude of the Minister. The audience was hardly a match for the wit and intelligence of Mr Sibal and he came out as a clear winner of the debate.

I take this opportunity to reiterate that Netizens in India are terrorised  by the Section 66A arrests and Mr Sibal’s assurances not withstanding the terror will only grow. Law will not come to our help since political masters and Police control the law to their advantage. In between the discussions, Mr Sibal has held out a mild threat that he is prepared to pass the law to make “Posting of comments on the Internet in anonymous names will be made punishable”. Though this was stated more in the course of the debate, the possibility of this being made real is very very high.

There is therefore an urgent need for Netizens of India to organize themselves into a strong outfit and be prepared to come together to fight for the freedom of speech. Naavi is therefore suggesting Netizens to come together in the platform of “All India Forum of Netizens” (www.aifon.org.in). This should not remain just a website but should develop itself in strength so that it acts as a pressure lobby to represent the interest of the Netizens. It should also grow into a platform where referendum can be held on various Netizen’s issues and before 2014 should gain such strength as to influence the election results at least in some cities where the Netizen population is decisive.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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