Dear Kapil Sibal: Does every internet-user need a cyber-lawyer?

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By Kumar /  26 Nov 2012 , 14:08

“Law and order is a social service. Crime, and the fear which the threat of crime induces can paralyse whole communities, keep lonely and vulnerable elderly people shut up in their homes, scar young lives and raise to cult status the swaggering violent bully who achieves predatory control over the streets” – this is how the British “iron lady” Margaret Thatcher once justified her hardline stand on rule of law.

In her grand wisdom, that was antithetical to the principle that better social protection will reduce crime, she had even advocated shifting resources meant for Social Security to law and order.

Looks like our IT Act, that has gained a level of notoriety, that is perhaps matched only by POTA, for its draconian intent and ease of indiscriminate misuse by local cops and petty politicians, draws a lot from the Thatcherite philosophy of law and order.

Or, for that matter, from any rule-based autocrat who creates and quotes appropriate law.

Going by Kapil Sibal’s argument, the Act is fine here as well, but the policemen were ignorant.AFP

Early this month, a small businessman in Pondicherry, was reportedly pulled out of his bed, to the horror of his family, for his tweet against the son of union finance minister P Chidambaram. His case educated the country on the hidden horrors of 66 (A) of the IT Act that free-speech activists had been campaigning against.

Whether the local cops knew how legal they were or not, in acting swiftly to a complaint by the minister’s son in Chennai, the accused (merely by another civilian) spent several hours with the police. Now, he will have to set aside money and time for a lawyer and making court-rounds.

A few days later, when telecommunications minister Kapil Sibal was cornered at a World Economic Forum meeting in Delhi by criticisms of the draconian elements of the IT Act, he was an embodiment of self-righteousness. There was nothing wrong with the law and the police should not have arrested the man, he said.

Nobody can be arrested and sent to jail because it is a bailable offence, he said. “Any offence where the maximum imprisonment is three years or less is bailable under the IT Act, so obviously this particular policeman is ignorant,” the minister said.

But we thought the police was knowledgeable – at least on how to misuse it. Otherwise, the early morning scoop would not have happened.

We also had to gulp down the fact that the jurisdiction was governed by a Congress government and that the tweeter, like Asim Trivedi who was booked for sedition in Mumbai, again another Congress domain, and the targets were members of Indian Against Corruption was purely coincidental.

A few days later, the same tool becomes the instrument behind the macabre incident of two girls being detained, arrested, harassed, scandalised and hounded in Mumbai for their dissent of the city-shutdown post Bal Thackeray’s death.A state government probe later proved that the policemen were wrong and the girls, obviously, right.

Going by Kapil Sibal’s argument, the Act is fine here as well, but the policemen were ignorant.

The Hindu on Saturday carried another horror story – two AI staff members had been arrested and jailed for 12 days, six months ago, much before the Pondicherry and Mumbai incidents made headlines. Under the same 66(A), and an additional 67A.

The report suggested labour union rivalry at their workplace and policemen acting at the behest of politicians. Their ordeal was in fact worse than that of the other three victims, for they had to spend time in jail and now, because they had been arrested, they also are under suspension.

Now let’s go back to Kapil Sibal and hear him again: “Just because some people do not follow it properly, we cannot entirely scrap the law. Can we do away with penal code? We cannot.”

His analogy is the misuse of the IPC by policemen. He argues that one cannot scrap the IPC because parts of it have been misused by some.

How is it that the law is always right and its implementation wrong? Activists say that the police receive a large number of complaints under the IT Act, particularly 66(A), and many of them are smart intimidation ploys by influential people. Needless to say that the police cherry-pick based on the influence of the complainant.

But then dear minister, what is the recourse for the poor, legally illiterate citizens of India against a law that the cops, influential people and political families are happily misusing? If there is clear evidence that this law is a super-smart tool for local politicians and cops to intimidate, harass and even exhort money from people on flimsy charges, isn’t the lawmaker responsible for preventive recourse?

Going by Kapil Sibal’s logic, every internet-user in India should study the IT Act and related jurisprudence, and keep a cyber-lawyer on call, so that when the cops knock at his/her door, he/she should be able to tell them that they have no right to arrest. Ideally, every Internet user should also keep a video recording of the minister saying the things he has said above.

The cops will certainly not listen and perhaps the accused might even be sent to jail as in the case of the AI employees. The minister can say that they are ignorant, but how can the victim get the violation reversed? Can he/she get the cops and the magistrate punished and compensated for the trouble he/she has gone through? Can’t it be included in the Law?

This is where we need an answer from the minister. Passing a law, with easy provisions for misuse, and then blaming the police for its violation doesn’t sound right although in the minister’s predictable legal-speak he may sound right because he is a smart lawyer, and policing is not his duty.

It’s not without reason that free speech and internet activists have been campaigning against the many provisions of IT Act, not just 66A, because they know how every single piece of legislation in India is misused by our ingenuous politicians, influential people and the police. Asking people to go to court, in case of violation, or block arrest by citing the law, is a high-handed argument.

The recent developments of blatant misuse of the IT Act clearly demonstrate that the activists have been right. The problem with many such misused laws is that they have been passed without adequate public debates and stakeholder consultations. Crony discussions by readymade elite committees are meant to override public scrutiny.

Transparency and inclusion are essential elements of democratic governance. Legal review and reforms are also essential ongoing processes for real democracy. The decision by Delhi High Court on Article 377 is a simple illustration of the need for continuous regal reforms.

It’s high time our lawmakers came down from their pedestal and listened to the wisdom of the mango people. The King can certainly do wrong.


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