New Government, Old Paranoia

In 2012, Bharatiya Janata Party (BJP) leader Arun Jaitley, then leader of opposition in Rajya Sabha, made a speech detailing the problems with Section 66A of the Information and Technology Act that was amended to its current form by the United Progressive Alliance (UPA) government in 2008.

The Upper House was discussing the Act following a furore over the blocking of almost 300 websites and a spate of arrests under the provisions in the Act.

Jaitley began by stating that it is “extremely difficult if not impossible to control technology, it would not even be desirable to do so…” He went on to say that the days of censorship are over and that if the Internet existed, the Emergency of 1975 would have been a big fiasco. “You can retrain and create an awe by censorship of print media and electronic media but you could never control the internet.”

He then went onto to state precisely what makes the Section 66A a problematic Act: words like “grossly offensive”, menacing”, “blasphemous”, “defamation” “harassing” and so on can at some stage be used to curtail free speech. The Internet would become a very boring place, he had stated, expressing his apprehension about the country losing its sense of humour – the clause against impersonation could effectively mean the death of satire.

“…I would urge the minister to kindly reconsider the language of the kind of restraints he wants to bring…,” he said.

Indeed Jaitley was not the only BJP leader to condemn UPA’s censorship – some of its supporters likened it to the Emergency. Prime Minister Narendra Modi even changed his display picture on Twitter to a black box to protest against the UPA blocking websites. “As a common man, I join the protest against crackdown on freedom of speech!” he had said.

To address growing concerns and misgivings about the Act, Kapil Sibal, then Union law minster, put out a video explaining his government’s position on Section 66 A.

Explaining how the law is well-intentioned, Sibal said he and his government will not support the misuse of Section 66 A. “The law by itself doesn’t allow you to be sent to the jail, fault lies in the person who is enforcing this law.”

“There are no perfect solutions in life, because there are no perfect answers to everything in life…that’s how we need to look at 66 A.”

But that was 2012 and three years is a long time in politics – Congress has been reduced to a non-entity and you would have hoped that some of UPA’s regressive policies would be dumped under the new regime. Not quite. In what can only be called a remarkable somersault, we now have Jaitley and his government indulging in the same “necessary evil” rhetoric as the previous dispensation to justify not repealing Section 66 A.

The Supreme Court is currently hearing multiple petitions that seek to do away with the Act and yesterday the government, after many flip-flops, finally submitted its position on the Act. Anyone in the court could have been confused whether it was the NDA or the UPA at the Centre.

Additional Solicitor General (ASG) in the Supreme Court in essence stated that just because the provision is vague on defining the word “offensive”, you can’t quash it altogether. The ASG argued that the Act was important as, unlike television or print, there were no institutionalised checks and balances online. “It is not possible to outrage someone’s modesty through print and television but it can be easily done through Internet,” he said.

Clearly the ASG had no idea about Jaitley’s glowing ode to the Internet as an upholder of free information in Rajya Sabha less than three years ago.

Ironically, “reasonable restriction” allowed under Article 19(2) of Constitution on freedom of speech and expression does not recognise any form of medium – something that the bench of judges hearing the argument pointed out.

The court, echoing BJP’s sentiments of 2012, pointed out that there is a great chance for the law to be misused as most cases fell in the grey area as far as “offensive” content went.

The ASG said that if the “medicine is bitter then we can have sugar after it instead of throwing the medicine”.  While it is fairly clear that the bitter medicine here is the Act, what is the ASG’s curious reference to sugar?

Meanwhile, the only people who seem to be standing their ground and remaining constant in their stance on Section 66 A are netizens – people most affected by the Act. Scores of people on Twitter have tweeted with the hashtags #No66A and #NoSecretBlocking all day today.

The tech-savvy prime minister is known to factor in the advice of his huge constituency on the Internet. Hopefully, this occasion would not be any different.