New IT Act guidelines: Fixing leaking roof with band aid

A noted cyber law expert feels that the government's proposal to set new guidelines under Section 66 (A) of the Information Technology Act won't help the cause a bit. Vicky Nanjappa reports.

The government has proposed to amend Section 66 (A) of the Information Technology Act, which has been dubbed as one of the most draconian laws in the country.

As per the proposal, the government will set new guidelines for officers dealing with this act so as to ensure that there is some accountability while dealing with this section and registering cases.

Cyber law experts, however, point out that this is hardly even a start and tweaking the guidelines only retains the draconian nature of the law.

The proposal is to ensure that there is a prior approval from either the deputy commissioner of police or the inspector general of police before a case under this section is registered.

Moreover, it would also seek to ensure that only an officer in the level of superintendent of police or above shall register such a case.

Section 66(A) of the Information Technology Act states:

66A. Punishment for sending offensive messages through communication service, etc.: Any person who sends, by means of a computer resource or a communication device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine.

'Explanation.- For the purpose of this Section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.

Firstly for any sort of amendment, this would have to be passed through Parliament. Hence only after a detailed discussion can an amendment be brought into force.

Cyber law experts and officers dealing with the IT Act state that the ambit of 66 (A) is very broad and needs to be narrowed down.

Cyber law expert Pavan Duggal states that by making the superintendent of police or an officer above register cases under this section does not help the purpose one bit.

"It is like fixing a leaking roof with a band aid," he says.

"However, the bigger worry is that if these guidelines come into play it would be directly in conflict with Section 78 and Section 80 of the IT Act. Section 78 states that notwithstanding anything in the Code of Criminal Procedure, a police officer in the level of an inspector shall investigate an offence under the IT Act. Further under Section 80 power has been given to conduct a search and arrest without warrant of any person found violating the act.

"Now if the amendment to 66 (A) gives the power to the SP or an officer above him, it would mean that both Sections 78 and 80 need to be amended," Duggal points out.

"Moreover, these amendments would only mean we are reverting to earlier position. Under the IT Act of 2000 only an officer in the level of DSP or above could probe such cases. Further and amendment in 2008 stated that an officer in the rank of an inspector level could also probe such a case," he notes.

Duggal points out that merely setting guidelines for investigation is not the need of the hour.

"It is very important that Section 66(A) remains in sync with Article 19 (2) of the Indian Constitution which deals with free speech. The problem is that the definition of free speech under Section 66 (A) goes beyond the definition as envisaged in the Indian Constitution. This makes Section 66 (A) ultra vires of the Constitution. Clearly the need of the hour is much more work on the subject and if any change or impact has to be made then, the lawmakers should think of getting 66(A) in sync with Article 19 (2) of the Constitution of India," he adds.