Saturday, May 18, 2013

Let us take our laws seriously

Let us take our laws seriously

Rangeya Raghav was a prominent Hindi writer of the 20th century, who started writing at the age of 13 years, and during his short life of almost 40 years, he was endowed with a number of prizes. He was at the same time a novelist, a short story writer, an essayist, a critic, a dramatist, a poet, an historian and a reportage writer. He could possibly do all this in such a short time period because whatever he had to do, it was on his own and it did not involve one or more Government departments. Or otherwise, his situation might have become similar to that of the title of one of his famous novels Kab tak pukaroon (How Long Do I Call).

Rangeya Raghav had to think by himself and had the liberty to express and implement them on his own. Possibly the same would not have been the case with a public office which seem to be having their own methodologies and speed and rules of operation.

This is a fact that every such person who wants to deal with government mechanism and government machinery must learn by heart, more so when the person concerned is apparently involved in transforming the society through the appropriate use of government machinery.

I would try to elucidate this fact in some details through one of my personal experiences. The whole thing started last year when it came to my knowledge that the Information Technology Act related with better and more efficient control of Internet, Cyber world and the Computer world has section 79 in it which is as regards the Service Providers or the Intermediaries.

As per section 79 of the IT Act, Intermediaries, like Google, Yahoo, Facebook, My Space etc are not liable for third party information if they observe due diligence while discharging their duties. To make these provisions more specific, the Government of India through the powers vested in it by the IT Act formed the Information Technology (Intermediaries guidelines) Rules 2011.

Rule 3 of these Rules requires that the intermediary shall publish the rules, terms and conditions not to host or display grossly harmful, harassing, blasphemous defamatory, pornographic, paedophilic information. It also requires that if any an affected person makes a complaint, the Intermediary shall act within thirty six hours to disable such information. Rule 11 says that the intermediary shall publish on its website the name of the Grievance Officer and his contact details.

These rules are extremely useful for the common users. If the service providers make it clear what are the information which they cannot put on the website or transmit, it will act as a barrier for the common users. Similarly, it will be a big relief for Internet users as they will have a ready mechanism to present their grievances and to object to offensive materials which is presently lacking.  

When we made some basic study in this direction, we found that these things are not being followed by the Intermediaries like Google, Yahoo, Facebook, My Space etc. To end this situation, we filed Writ Petition No 3489/2012 in Allahabad High Court, Lucknow Bench in May 2012. The High Court said that this is the age of Internet. Hence all the Rules related with Internet shall be strongly enforced. We argued the case ourselves while Ashok Nigam, Additional Solicitor General opposed the Writ petition saying that they had not made Yahoo, Google etc a party in this petition.

The bench of Justice Devi Prasad Singh and Justice Saeed Uz-zaman Siddiqui did not agree with the arguments of the State counsel and said that if the Government of India has framed any Rules, it shall get it properly enforced. The Court said that the petitioners had sent many representations to the Secretary, Ministry of Information Technology but no action was taken in this regards. Hence, the Court directed that since the matter is of wider public interest hence the Government of India shall ensure within three months that as per Rule 11, all the intermediary publish the name of the Grievance Officer and his contact details on their website.  They also ordered the Secretary, Information Technology to intimate the petitioners about the action taken as regards their representation.

With this order, we had a feeling that the matter would end forever. The Government of India will ensure the compliance of the High Court order and with this some useful work for the common Internet users will get done.

But possibly this was only the beginning. I and Nutan sent a copy of the High Court order to the Government of India. To this the Electronics and IT Department sent us a letter that the order of the High Court had been intimated to all service providers and they had been directed to follow these orders in letter and spirit.

When nothing happened after a lapse of substantial period of time and the service providers did not follow the directions, Nutan filed a Contempt Petition in the High Court. The Court agreed with us only partially saying that since the Government of India had already given directions to the concerned persons to ensure the High Court orders, hence substantial compliance of the order would be presumed. Hence no contempt of the Court has been committed. But at the same time, the Court said that if the petitioner felt that there still remained anything to be done in regards to their original grievances, they may approach the competent forum. 

Since most of the Service providers were still defying the Government rules, hence we filed another Writ Petition No 9359/2012 in the Allahabad High Court, Lucknow Bench. The Court ordered-“This writ petition has been filed on the same cause of action, which was adjudicated earlier and in support whereof Union of India is said to have made a statement to the effect that the order has been complied with.
However, it is also submitted that the statement has not yielded any result.
Thus, we deem it appropriate to dispose of the writ petition with liberty to place it before the Secretary, Department of Electronics and Information Technology, Ministry of Communication and IT, Government of India, CGO Complex, Lodhi Road, New Delhi as a fresh and comprehensive representation on behalf of the petitioner to honour the statement made in the Court. The representation by way of a copy of writ petition shall be disposed of within three months in the light of the aforesaid statement on behalf of Union of India.”

When more than three months passed, Nutan filed the second contempt petition in this case.  The bench of Justice Dr Satish Chandra issued contempt notice against the Electronics and IT Secretary directing him to comply with the order within 10 days. On the next date of hearing, Justice Sudhir Agarwal directed the Secretary to be present in person on the next sate of hearing.

Now we have received an order dated 17 May 2013 from the Electronics and IT Secretary. As per this order, on 12 June 2012 the Government directed all service providers to follow the High Court orders about compliance of Government Rules.
The same directions were issued in the meeting chaired by the Union Minister on 02 August in the light of the High Court order where the Service providers, Civil society members, Industry members etc were invited. I was also one of the invitee in this meeting. Again on 29 November 2012 the meeting of Cyber Regulation Advisory Committee (CRAC) was held under the Minister’s Chairmanship where the High Court orders were also discussed. Many service providers presented their disagreement to Rule 11 saying that there was no concept of Grievance Officer in the international scenario but the Indian Government made it clear to them that they would have to abide by the High Court orders. The Department has also published the two High Court orders on its website.

Thus this order states that the Government has always been extremely alert towards the orders and has never flouted the High Court orders.

But the real issue to be seen in all this hullabaloo, dirt and dint is that even today, after so much efforts on our part and many High Court orders, a great majority of the Service Providers blatantly violate Rules 3 and 11 of the IT Regulations of 2011. This is the question I want to raise- Why is it that there are plethora of laws, Acts and Rules in our country but when it comes to their implementation, many ifs and buts start pouring in. Hence what possibly needs to be done is firstly to scrap all those laws which are either impractical or useless or counterproductive or amend them to that extent, but if there is some law then it must be complied with in its totality. The position- of there being some law and the law not being implemented, cannot be said to be in the interest of the Nation.  It presents the entire Governance in a bad light, as if it stands in utter helplessness, something which many people like us, really dislike.

Amitabh Thakur

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