Modi government defies Supreme Court, demands return of 66A restrictions on online speech via UN treaty

New Delhi: Seven years after the Supreme Court declared Section 66A of the Information Technology Act unconstitutional, Narendra Modi’s government is trying to push the provision’s restrictions on online speech through the back door.

During the ongoing negotiations to draft a new legally binding United Nations treaty on combating cybercrime, India has submitted a proposal to “criminalize offensive messages”, which is an exact duplicate of the language of Section 66A – language that had been used to file complaints across India against cartoonists, students, activists and others before the court decides. ultra vires of the constitution.

Although External Affairs officials did not respond to questions about the proposal, the legal thinking behind the move could be to tell the top court – if the restrictions are accepted at the UN – that India now has an “international obligation” to reintroduce Borders 66A.

“It is more than shocking that the government is trying to introduce Section 66A through backdoor legislation,” said former Supreme Court Justice Madan B. Lokur. Thread. “Is the government sending a message to the Supreme Court or constitutional law experts or free speech supporters or everyone else, that the government will do what it deems appropriate, regardless of what the Constitution and the courts can say.”

Since the end of May, a committee of experts convened by the UN has debated and negotiated miscellaneous criminalization of cybercrime in Vienna in a hybrid format.

Created by the terms of a United Nations General Assembly (UNGA) resolution approved in May 2021, the Ad Hoc Committee, which began its work in January this year, is expected to submit a draft convention on the fight against cybercrime at the 78th session of the General Assembly.e session in 2023-24.

Prior to the session, Member States were invited to provide suggestions on three specific points – criminalization provisions, general provisions and procedural measures and law enforcement.

Written submission from Indiasent on 12 May, proposed more than 13 categories of offenses which could be criminalized by each State party under its domestic law by adopting legislation or other appropriate measures.

The list includes the definition of criminal attempts ranging from damage to computer systems, cyberterrorism and child pornography.

The Indian proposal lists “sending offensive messages via communication devices etc.” in Section 4(d). He then defines crime in three ways –

(a) any grossly offensive or threatening material; Where

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, persistent enmity, hatred, or ill will while using this computing resource or communication device;

(c) any electronic mail or electronic mail message intended to cause annoyance or inconvenience or to deceive or mislead the recipient or recipient as to the origin of such message.

If the language sounds familiar, it’s no wonder.

Article 4(d) of India’s submission is an exact replica of the language used in the past Section 66A of the Information Technology Act.

On March 24, 2015, the The Supreme Court struck down Section 66A, which had become notorious for being misused by law enforcement for political purposes. Since the UPA government introduced it in 2008, the main criticism of the amendment has centered on the ambiguity in the definition of terms such as “offensive” and “threatening”, which left wide leeway for authorities to file complaints and make arrests.

The judgment by a divisional bench called Section 66A “unconstitutionally vague.” “Section 66A of the Information Technology Act 2000 is struck down in its entirety as breaching Section 19(1)(a) and not saved under Section 19(2) ),” said the order drafted by Justices J. Chelameswar and RF Nariman. .

Seven years later, India suggested the exact wording that the Supreme Court struck down in a written submission for a new UN convention that will be legally binding on every state.

If the UN treaty includes this provision, as New Delhi suggests, the Indian government, as a party to the binding convention, could introduce new legislation to bring back the language previously declared “unconstitutional” by the Supreme Court.

In July 2021, the Supreme Court said he was shocked that complaints were still being filed under Section 66A of the Computer Act, although it was removed years ago. The applicant’s lawyer had pointed out to the court that more than 1,300 new cases had been registered since the historic judgment. Subsequently, the The Union Government has written to the State Governments ordering them not to register the files under this repealed provision and to withdraw those which would have already been filed.

There is already growing concern among international civil society that a cybercrime treaty will jeopardize individual rights. “A binding international treaty has the potential to expand government regulation of online content and reshape law enforcement access to data in ways that could criminalizing free speech and infringing on privacysaid Deborah Brown of Human Rights Watch in an online essay last year.

The San Francisco-based NGO Electronic Frontier Foundation said there are “far too many examples of anti-cybercrime laws being used to persecute, chill human rights and bring spurious and disproportionate charges against researchers, activists and whistleblowers”.

“The stakes are high, so human rights guarantees in the potential cybercrime treaty must be a priority,” said the EFF in February.

These apprehensions are fueled by the fact that Russia is the main driver of the December 2019 resolution at the UNGA which initiated the process of drafting the treaty. While 79 countries voted in favour, 60 nations, mostly the United States, Europe and other Western allies, were against the resolution. 33 other countries abstained.

India voted in favor of the resolution.

After the COVID-19 pandemic postponed the start of negotiations in 2020, the general meeting adopted a new calendar in May last year

While several countries argued for a narrowly focused treaty so that broader internet controls cannot be applied, India made it clear that the convention should be comprehensive and also include a broader definition of “cybercrime”.

During the first negotiating session of the Ad Hoc Committee in March-April this year, India had also proposed that the new treaty could have a built-in mechanism to facilitate the sharing of “contentless data/metadata” without going through through mutual legal assistance treaties and letters rogatory.

If Member States continue to resist international cooperation or make international electronic evidence sharing cooperation difficult, time-consuming and highly bureaucratic, this will indirectly incentivize and support ICT-using criminals and further harm victims,” the Indian representative said.

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