Resurrecting a dead law

Resurrecting a dead law

Subject: Polity

Section: Constitution

Context: India made a formal submission for criminalizing “offensive messages” as part of the ongoing negotiations at the United Nations for a proposed international treaty on combating cybercrime. The language in the submission is similar to what was used in Section 66A of the Information Technology Act, 2000.

What is Section 66A of the Information Technology Act, 2000?

• Introduced by the UPA government in 2008, the amendment to the IT Act, 2000, gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts
• Section 66A empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc
• It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail

Why was the law criticized?

The problem was with the vagueness about what is “offensive”. The word having a very wide connotation, was open to distinctive, varied interpretations

What did the Supreme Court verdict regarding this provision?

In 2015, Supreme court ruled in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2)

Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right

Is international treaty is binding?

• If India’s proposal is accepted, would that mean that the provision will have a direct effect on the Indian legal system.
• India is a dualist state. Therefore, international law does not become a part of the domestic legal system unless it is specifically transformed into domestic law by Parliament, which will be required to enact legislation to implement the international law
• This is different from the theory of monism, wherein international law is automatically incorporated into the domestic legal system of the country even without Parliament enacting an enabling legislation

Transforming international treaty

• However, things may become convoluted if Parliament enacts legislation or amends existing legislation to implement the international treaty that criminalizes “offensive messages”
• The government may get a law passed in Parliament using Article 253 of the Constitution, which states that Parliament has the “power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention”, and place a provision similar to Section 66A back on the statute book
• Legally, such a law can be justified as a necessary action to comply with India’s international law obligations. It will then give the executive the power to book people for alleged “offensive messages” as was the practice earlier
• But this issue is not just about legal technicalities. The alarming point is that the Indian government proposed the inclusion of a provision in an international treaty which was struck down by its own apex court for breaching fundamental rights
• This mindset does not augur well for constitutionally protected fundamental freedoms in India.

Background:

The Convention on Cybercrime, also known as the Budapest Convention on Cybercrime or the Budapest Convention, is the first international treaty seeking to address Internet and computer crime (cybercrime) by harmonizing national laws, improving investigative techniques, and increasing cooperation among nations