The Times of India
Policing the Net
The Dangers of India's New IT Act
By SIDDHARTH VARADARAJAN
PASSED in the Lok Sabha on Tuesday with unseemly haste, the Information Technology Act attempts to achieve two contradictory objectives. The law is premised on the assumption that the new information technologies are a liberating tool for the economy and for governance; but some of its provisions are imbued with a police mentality which seeks to control and restrain the manner in which citizens use computers.
While India is one of the few countries to put in place legislation to facilitate e-commerce and protect computer networks from cybercrime, the careless manner in which some of the prescribed offences have been defined -- and the sweeping powers granted to the police -- make it almost certain the law will be misused.
As it is, the Indian Penal Code's definition of the crime of obscenity (Section 292) is archaic and in urgent need of revision. Though the Supreme Court has narrowed the focus of obscenity through liberal interpretation of existing statutes, law enforcement officials and lower courts frequently entertain the flimsiest of ``obscenity'' petitions.
When the same IPC definition of obscenity is made applicable to the ``publishing'' or ``transmitting'' of material in electronic form, chances are that a wide range of Internet-related material could come within the ambit of the law.
The IT Act defines as obscene ``any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons...who are likely to read, see or hear the matter contained or embodied in it''. The penalty for a first offence is five years imprisonment; subsequent convictions will result in 10 years imprisonment.
Leaving aside for the moment the subjective and arbitrary nature of the definition, neither the bureaucrats and `experts ' who drafted the IT law, nor the parliamentary standing committee which vetted its provisions, have applied their mind to the problem of defining what exactly ``publishing'' and ``transmitting'' entail in the context of the Internet.
Let us imagine that an ``obscene'' website existing out in cyberspace is accessed by a customer of a cyber cafe. He may have explicitly sought the site or clicked on it in error out of a long list of sites thrown up by a search engine. If you don't believe that can happen, try searching for `White House' on any engine and see what you get.
Once the ``lascivious'' site appears, could the cyber cafe owner be hauled up for allowing it to come up on one of his computers? Could the customer be accused of attempting to ``deprave and corrupt'' a police officer who happens to glance at the screen? And what happens if the URL of the site is stored in the browsing software's history or in the computer's cache? Would that amount to publishing and transmitting? Finally, what about sites that provide a search engine or chat rooms? Could they too be targeted?
What makes the IPC Act especially dangerous is that the nebulousness of the prescribed offence is matched by the sweeping nature of the powers granted to the police. Police officers and even ordinary government officials are allowed to search public places like cyber cafes and arrest persons suspected of committing a crime under the new law.
Clause 79 of the IT Act reads: ``Notwithstanding anything contained in the Code of Criminal Procedure (CrPC), any police officer, not below the rank of a Deputy Superintendent of Police, or any other officer of the Central government or a State Government authorised by the Central Government in this behalf may enter any public place and search and arrest without warrant any person found therein who is reasonably suspected of having committed or of committing or of being about to commit any offence under this Act''.
Curiously, Information Technology minister Pramod Mahajan told Parliament that this clause was actually a ``safeguard'' since the CrPC grants similar search and arrest powers to any policeman and not just to a senior officer. But this explanation is faulty on three accounts.
- First, it ignores the fact that the relevant provisions of the CrPC -- Sections 151 and 157 in particular -- are routinely abused by the police. Section 151, in fact, says any person so arrested can only be held in prison for 24 hours. Though this is rarely followed, persons arrested without a warrant under the IT Act have not even been given the benefit of such a safeguard.
- Second, the CrPC does not grant the police such powers for non-cognisable offences. Certain offences under the IPC such as Sections 172, 173, 175 (omission to produce document to public servant by persons legally bound to produce it) and 204 (destruction of document to prevent its production as evidence) are non-cognisable and hence the police cannot simply arrest a person without a warrant. Under the IT Act, the electronic versions of these crimes have, by default, become cognisable since the police have been granted the power to act on their own without a magistrate's authorisation.
- The IT Act empowers not just police officers but any class of government official as decided by the government.
While the ostensible reason for granting the police such sweeping powers is to prevent crimes like hacking, the fact is that it is virtually impossible for hackers to operate from public terminals in cyber cafes. Nevertheless, the IT Act seems to be especially targeted at ``public places'' (i.e. cyber cafes), where more than 75 per cent of Indian net users access the web. Hacking and pornography may be one concern but the police will also keep an eye on those who access ``anti-national'' or ``subversive'' sites.
New Law, Old Notion
According to Ravi Sundaram, fellow at the Centre for the Study of Developing Societies and one of India's leading `net sociologists', the IT Act is built on the premise of 19th century definitions of territoriality. ``Crime needs a physical location and this territory must be policed. The new law is shot through with this notion''. During the Standing Committee's review of the draft, in fact, MPs were quickly convinced by the arguments of Delhi's police commissioner of the need to watch cyber cafes. They inserted an amendment making it mandatory, on pain of imprisonment, for cyber cafe owners to maintain a record of the identity of their customers and a list of web sites visited by them. Fortunately, better sense prevailed and at the last moment the Vajpayee government agreed to drop this amendment.
However, the clauses on obscenity and police powers were not dropped or modified. When these begin to be invoked by petty officials or those with a political or `culturalist' agenda, one can only hope that the courts will step in to protect the citizen's right to information and unfettered communication. In the mean time, the government should give serious thought to amending the Act to eliminate the scope for abuse.