Modi Government Defies Supreme Court, Seeks Return of 66A Curbs on Online Speech Via UN Treaty

New Delhi: Seven years after the Supreme Court dropped the 66A section of the Information Technology Law as non -constitutional, the Narendra Modi government was trying to bring restrictions on online speeches through the back door.

During the ongoing negotiations to prepare a new UN agreement that is legally binding regarding overcoming cyberspace crimes, India has submitted a proposal for “Criminalization of offensive messages”, which is the right duplication of the language section 66a that has been used to be used to submit cases – Cases throughout India against cartoonists, students, activists, and others before the court ruled him very well from the constitution.

While the Ministry of Foreign Affairs officials did not respond to questions about the proposal, the legal thinking behind the step might be to inform the High Court – if the restrictions passed at the United Nations – that India now has a ‘international obligation’ to introduce back into 66A Curbs.

It is not surprising that the government is trying to introduce part 66A through the backdoor law,” judge Madan B. Lokur, a former Supreme Court judge, told The Wire. “Whether the government sends a message to the Supreme Court or to constitutional law experts or to supporting freedom of speech or to all people, that the government will do what he thinks is right, regardless of what can be said by the constitution and the court.”

Since May, the expert committee held by the United Nations has debated and negotiated various provisions for the criminalization of cyberspace crimes in Vienna in the hybrid format.

Founded by the Provisions of the UN General Assembly Resolution (Unga), which was approved in May 2021, the Ad Hoc Committee, who began his work in January this year, he should submit a draft convention on against cyberspace to the 788th session of the General Assembly in the session – 78 General General Assembly General 2023-24.

Ahead of the session, member countries were asked to provide advice on three specific items -the provisions of criminalization, general provisions and procedural steps and law enforcement.

The written submission of India, sent on May 12, proposes more than 13 categories of violations that can be determined as violations by each state based on their domestic law by adopting the appropriate laws or steps.

This list includes defining criminal efforts ranging from damage to computer systems, cyberspace terrorism and child pornography.

Indian proposals include “sending offensive messages through communication devices etc.” in section 4 (d). Then define crime in three ways –

(a) any information that is very offensive or has a threatening character; or

(B) whatever information he knows is wrong, but for the purpose of causing disturbances, discomfort, danger, obstacles, insults, injuries, criminal intimidation, hostility, hatred or will continue to use the computer resources or a communication device;

(c) Every electronic message or electronic message for the purpose of causing interference or discomfort or deceptive or misleading the recipient or recipient about the origin of the message.

On March 24, 2015, the Supreme Court hit the 66A section, which became famous because it was misused by law enforcement agencies for political reasons. Since the UPA government introduced it in 2008, the main criticism of the amendment has exceeded ambiguity over the definition of terms -such as “offensive” and “threatening characters”, which provide broad concessions to the authorities to submit complaints and arrest.

The judgment issued by the Division bench called the 66A section as “unclear unclearly constitutional”. “Part 66A of the Information Technology Law, 2000 was hit by a whole violation of Article 19 (1) (a) and was not stored based on Article 19 (2),” said an order written by Chief Justice J. Chelankeswar and R.F. Nariman.

Seven years later, India has suggested the right language that the top court has hit in a written submission for a new UN convention that will be legally binding for each state.

If the UN agreement includes this provision, as suggested by New Delhi, the Indian government, as a binding party, will be able to introduce new laws to restore the language that was previously declared “not constitutional” by the Supreme Court.

In July 2021, the Supreme Court stated that it was shocked that cases were still submitted based on section 66A of the IT law, even though it was removed years ago. The applicant’s lawyer has shown to the court that more than 1,300 new cases have been registered since the decision is important. Furthermore, the Uni government wrote to the state government that directed them not to register cases based on the provisions that were revoked and to attract others who might have been proposed.

There has been an increase in concern among international civil society that agreements to fight cyberspace will significantly take the risk of individual rights. “Binding international agreements have the potential to expand government regulations on online content and re -establish access to law enforcement to data in a way that can criminalize freedom of expression and damage privacy,” said Deborah Brown of Human Rights Watch in last year’s online essay.

The San Francisco Electronic Frontier Foundation stressed that there are “too many examples of anti-cybercrime laws used to persecute, cool human rights, and bring false and disproportionate accusations to researchers, activists, and prostitutes”.

The stakes are high, so the protection of human rights in the virtual crime ceremony must be a priority,” Eff said in February.

This concern was driven by Russia to be the main driver behind the December 2019 resolution in Unga which regulates the ball rolling in the process of preparing the agreement. While 79 countries chose to support, 60 countries, especially the US, Europe and other Western allies, opposed the resolution. 33 other countries have abstained.

India chose to support the resolution.

After Pandemi Covid-19 postponed the start of negotiations in 2020, the General Assembly adopted a new schedule in May last year

While some countries have advocated agreements that focus on narrowness so that broader control on the internet cannot be upheld, India clarifies that the convention must be comprehensive and also includes a broader definition of ‘virtual crime’.

During the first negotiating session of the Ad Hoc Committee in March-April this year, India has also proposed that the New Testament can have a mechanism that was built to facilitate the sharing of “non-content/metadata data” without going through a route from the legal assistance agreement and the Rogatories letter.

If member countries continue to oppose international cooperation or make international cooperation sharing electronic evidence difficult, time consuming and very bureaucratic, it will indirectly provide incentives and support criminals using ICTs and endanger further victims,” ​​said Indian representative.