Let’s repeal bad laws. But let’s also prevent misuse of good laws.
The recent actions of West Bengal chief minister, Ms Mamata Banerjee in arresting a professor for circulating a cartoon mocking her on the internet have again brought the focus on the rules promulgated under the Information Technology Act. These rules are an assault on our freedom and privacy. Needless to add, they must be reversed.
West Bengal police has charged Professor Mohapatra under IPC offences relating to defamation and insulting the modesty of women as well as cyber crime offences. Although the professor has been granted bail by an Alipore court, here is what should worry us.
A senior police officer in Kolkata, where the case against Mr. Mahapatra was registered, said the professor is accused of having violated India’s Information Technology Act. He described the material shared by Mr. Mahapatra as an “offensive and non-featurable picture of our honorable chief minister.”[IRT]
This is clearly a case of a bad law being abused by the state government. But even if the state government were to harass the professor (or any other citizen for that matter), it doesn’t need bad laws for it. Even well-established good laws can be used — abused or misused — for this purpose by a malevolent government. In this case too, the major charges against the professor are under the Indian Penal Code. He was arrested on charges of eve-teasing (Section 509 of the IPC), defamation (Section 500 of the IPC), and humiliating a woman (Section 114 of the IPC), besides causing offence using a computer (Section 66 A (b) of the IT Act).
While the IT rules are bad and need to be annulled, there are genuine cases in this country where information technology tools are being used against the state. Take Kashmir for example. Social networking tools and websites are being used by anti-India forces (from both inside and outside the state of Jammu and Kashmir) to incite violence in the state. Jammu and Kashmir Police has already registered two cases under section 66 of the Information Technology Act and section 13 of the Unlawful Activities (Prevention) Act against the miscreants: the first one in 2010 and the second in 2011. Because it involves teenagers, in most cases the state police takes defaulters into custody, calls their parents and if necessary, counsels them and releases them right away. Barely have any cases been filed by the police against the offenders under the PSA .
Indian government is not alone in being confounded by this challenge of reacting to flow of information in radically networked societies. The British government has not been able to devise a coherent — and socially acceptable strategy — to prevent the occurrence of London riots of last year. The NSA in the US is building a huge data-centre to monitor, process and crack all communication. While the liberals want to safeguard free speech (and rightly so), the radicals (as in Kashmir) are always willing to abuse these provisions to unleash violence against the state. The challenge is huge and there are no easy answers. For any democratic government, the balance between privacy and security is not easy to strike. And with enhanced threat of terrorism and higher proliferation of social networks, this challenge has increased manifold now.
Notwithstanding that dilemma, the answer to the challenge is not promulgating bad laws. And the problem of bad laws in India runs deeper. Once you have been charged, whether you are pronounced guilty or not doesn’t matter — the process itself is the punishment in India. Indian police’s pathetic rate of conviction (40.7% in 2010) lends credence to the belief that our state is actually operating on that dictum. Bad laws make it easier for the state to charge you with an offence, and thus punish you by making you go through the ordeal of the process.
Having good laws on the statute will help but a malefic state can always misuse and abuse reasonably good laws. That is the real danger. Where are the institutional checks and balances to prevent the descent of a democratic republic into a majoritarian dictatorship? Our police is compromised, our courts are overburdened, and our political institutions effete. Take the example of the current case in West Bengal. The police has acted like an arm of the ruling party. If the professor were to approach the courts with a case against the government, it will take him years before his case is finally disposed by the court. Moreover, the courts have refused to take suo moto notice of the case. With the central government dependent on Trinamool’s support, the governor and the union government have failed to advice or warn the state government for its actions. The whole system seems to have collapsed in Bengal.
The bottom-line is simple. We must oppose bad laws and ensure that they get rescinded. But we must not stop there. We have to ensure that the state doesn’t misuse good laws. For that, we need to reform the police and the judiciary, and reinvigorate our political institutions. Only then can we hope to be safe in the long run.