Can guidelines prevent misuse of bad laws?

IN Media Freedom | 20/03/2015
As two recent incidents show, guidelines for Sec 66 A of the IT Act and now, for sedition, are scant protection.
The law itself is flawed, says GEETA SESHU. Pix: Azam Khan
In two instances in the last few days, the spotlight is on guidelines for two laws affecting freedom of expression -- sedition and cases under Sec 66 A of the Information Technology (IT) Act. But is there any point in issuing guidelines to police to prevent the misuse of bad laws? When the law itself is flawed and drawn up with the most arbitrary and sweeping provisions, devoid of precise definitions, how can guidelines protect citizens? 
The arrest of a student for a Facebook post allegedly against Uttar Pradesh Urban Development minister Azam Khan on charges of violating the draconian Sec 66 (A) of the Information Technology Act is a good illustration of this flawed approach. 
According to reports, an FIR was lodged against the Class XI student who allegedly uploaded a few posts, which made allegedly derogatory references to Khan and to a particular community. The youth, also charged under sections 153A (promoting enmity between different groups on grounds of religion, race, etc.), 504 (intentional insult with intent to provoke breach of peace) and 505 (public mischief) of the IPC, was remanded to judicial custody and secured bail on Thursday.
The youth’s family said he merely shared a post, and didn’t upload any post. But the law is clear: it covers any transmission of offensive content in an electronic manner, irrespective of whether it was original or shared content. Of course, only a judicial process will determine whether the content was defamatory and offensive but for the moment, the law empowers the police (Sec 78 and 79 of the IT Act empowers Inspector rank police officers to enter any premises, search and effect an arrest)to determine offensive content. 
In 2013, following a nation-wide uproar over the arrest of two students in Palghar, Maharashtra in November 2012, the Union government issued guidelines in the form of an advisory to police on the use of Sec 66 (A) of the IT Act.  The guidelines explicitly state that police officers in any police station can effect an arrest under this act only if prior permission is obtained from an officer of the rank of Inspector General of Police in metropolitan areas and Deputy Police Commissioner or Superintendent of Police, in districts.
This advisory is an important part of the Union Government’s defence in the case against Sec 66 (A) in the Supreme Court as the government maintains that the guidelines prevent any possible misuse. But, as numerous instances have shown, the guidelines have simply not worked. Hearings on the case, arising out of a writ petition filed by ShreyaSinghal after the Palghar arrests, went on for more than two years and at least ten cases challenging Sec 66 (A) were clubbed together.
Whereas earlier, BJP leaders like ArunJaitley had come out strongly against Sec 66 (A) and intermediary guidelines, the NDA government was noticeably silent about the free speech implications of these provisions. Now, the judgment,heard by Justices J. Chelameswar and Rohinton F. Nariman, has been reserved in the case.
Guidelines in sedition cases
Sedition, as all of us know by now, is a colonial-era law and used by the British to suppress dissent all through the freedom movement. Mahatma Gandhi, who called it the ‘prince’ of sections of the Indian Penal Code to suppress liberty, was charged with sedition in 1922 for his writings in ‘Young India’ after violent protests over the visit of the Prince of Wales and the Chauri Chaura burning of police personnel. 
Under Sec 124A of the IPC, where citizens can be charged with sedition for spreading disaffection against the State, punishment is upto life imprisonment. In 2011, the civil liberties activist Dr Binayak Sen, was convicted with life imprisonment by a sessions court in Chhattisgarh and it took an appeal that went up to the Supreme Court and a nation-wide campaign to secure his bail. While data is unavailable on the number of adivasis similarly charged and languishing in jails, we do know that more than 7,000 villagers fighting the Koodankulam nuclear power plant were also charged with sedition. 
In the sedition case filed against cartoonist AseemTrivedi, the Bombay High Court delivered its judgment that the cartoons, while not witty or humorous, were definitely not seditious. The court took note of a set of guidelines put forward by the Maharashtra government’s Home department in the form of a circular to all police personnel governing application of sedition under Sec 124A of the IPC. 
Apart from the need to show intention to violence, for sedition to apply, the law enforcing agency would need to obtain a legal opinion in writing, which gives reasons addressing these pre-conditions, must be obtained from Law Officer of the District followed within two weeks by a legal opinion in writing from Public Prosecutor of the State.
But whether sedition itself should continue to remain in the statute books was a question that the court did not address.
Such articles are only possible because of your support. Help the Hoot. The Hoot is an independent initiative of the Media Foundation and requires funds for independent media monitoring. Please support us. Every rupee helps.
Subscribe To The Newsletter
The new term for self censorship is voluntary censorship, as proposed by companies like Netflix and Hotstar. ET reports that streaming video service Amazon Prime is opposing a move by its peers to adopt a voluntary censorship code in anticipation of the Indian government coming up with its own rules. Amazon is resisting because it fears that it may alienate paying subscribers.                   

Clearly, the run to the 2019 elections is on. A journalist received a call from someone saying they were from Aajtak channel and were conducting a survey, asking whom she was going to vote for in 2019. On being told that her vote was secret, the caller assumed she wasn't going to vote for 'Modiji'. The caller, a woman, also didn't identify herself. A month or two earlier the same journalist received a call, this time from a man, asking if she was going to vote for the BSP.                 

View More