Regulation of Internet
Posted on Tuesday, July 17, 2012 - By Jagdeep S. Chhokar>, Former professor, Dean, and Director In-charge of Indian Institute of Management, Ahmedabadll
Internet, over the years, has almost come to be synonymous with freedom of speech and expression. This is the exact terminology used in the Constitution of India, in Article 19(1)(a) which reads as follows: “19. (1) All citizens shall have the right—(a) to freedom of speech and expression.” In an ideal world, when the supreme law of the land says this, there would be no question if “regulating” a medium that seems to be the very essence of what is listed as the very first component (of the currently six, earlier seven components) of the Right to Freedom. But the world we live in is far from ideal.
Given a far from ideal world, we must recognize the widespread malaise in society at large, for whatever reason, which may lead to misuse or abuse of the above freedom in a variety of ways, and for a variety of reasons. Most of the reasons arise from or culminate into selfishness and intense individualism, which are becoming more and more prevalent in society over the last decade or so.
It is to guard against such and other eventualities, that the Constitution makers added clause (2) to Article 19 which allowed for “reasonable restrictions” to be imposed on the exercise of the right granted under clause (1) above. Clause (2) reads as follows:
“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”
It is under clause (2) that the government can, and often plans to, regulate the Internet provided it can satisfy the legal system that the restrictions are “reasonable” and are “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” The issue is should there be regulation.
This issue can be looked at in two broad ways: Theoretically and practically. Theoretically, it is not impossible to think of, imagine, or argue for regulations under certain conditions as provided in clause (2) of Article 19 of the Constitution but a host of complications arise when we think of the practicality of first enacting and then enforcing the regulation.
First of all, the “regulations” will need to be legislated, meaning that these will need to be passed by the Parliament. The fractured state of the polity is well known. Anything that one party proposes, the others oppose, not necessarily on the merits of the proposal but just to ensure that the other party is not able to claim credit for doing anything good, even if it is overwhelmingly in the national interest.
However, if the proposal can be formulated in a form that put the entire political establishment versus the rest, then the entire political establishment forgets its internal differences and the basic instinct of self-preservation takes over. The recent fracas over the Lokpal Bill may be a controversial example but another recent example from personal memory comes to mind.
The Association for Democratic Reforms (<"www.adrindia.org">www.adrindia.org)< filed a public interest litigation (PIL) in Delhi High Court, in October 1999, requesting for declaration of criminal, financial, and educational background by candidates contesting elections to Parliament and State Assemblies. The Delhi High Court pronounced a judgment on November 02, 2000, directing that such candidates will have to file a sworn affidavit as an essential part of their nomination paper declaring their criminal, financial, and educational antecedents, and directed the Election Commission (EC) to ensure the details of pending criminal cases and the assets of candidates contesting elections are available to voters.
Although the High Court’s direction was to the EC, the Union of India (then led by the NDA) chose to file a special leave petition in the Supreme Court in January 2001, questioning the judgment, claiming that disclosure of background information was a legislative matter in which the judiciary had no right to interfere. All other political parties, including the Congress and Samata Party, supported the stand of the Union of India. The Supreme Court rejected the appeal on May 02, 2002, and gave the EC up to two months to implement the judgment. The EC issued an order on June 28, 2002, implementing the judgment.
Twenty-two political parties met in an all-party meeting on July 8, 2002 (a mere ten days after the EC’s order), and all of them unanimously decided that the judgment will not be allowed to be implemented and that the Representation of People Act (RP Act) will be amended in that very session of Parliament. The Law Ministry, acting very efficiently, prepared a draft of a Bill to amend the RP Act on July 15, 2002, and circulated it to all political parties. The Lok Sabha was adjourned because of the petrol pump scandal (of Ram Naik fame) and so the Bill could not be introduced.
Possibly considering that the disclosure of pending criminal cases and financial status of candidates contesting elections to Parliament and State Assemblies was a grave national emergency (because under Article 123 of the Constitution, the President has to be “satisfied that circumstances exist which render it necessary for him to take immediate action” before he can “promulgate such Ordinances as the circumstances appear to him to require”), the Cabinet prepared a draft Ordinance and sent it to the President for signature on August 24, 2002.
In the meanwhile, finding that the draft Bill contained some clauses that were against the Constitution, 30 representatives from civil society had met the President, Abdul Kalam who had been elected in July, on August 16, 2002, and apprised him of the unconstitutionality of the Ordinance. The President, therefore, returned the Ordinance without signing it. The Cabinet sent it back to him the next day, and under the convention, the President had to sign it, and the RP Act stood amended with effect from August 24, 2002.
Three PILs are filed in the Supreme Court challenging the constitutional validity of the Ordinance. On March 13, 2003, the Supreme Court declared the ordinance (by now converted into an Act in the next session of Parliament) “illegal, null and void”, restoring the 2002 judgment of the Supreme Court.
This is the saga that led to disclosure of criminal, financial, and education background of candidates contesting elections, and the it shows that the political establishment can be unanimous when it suits its own needs and interests.
Assuming that the regulations are passed in Parliament or are even put into effect through an Executive Order (as has been done for the UID), how exactly will they be implemented?
There will have be something like a regulator of the Internet, even if this responsibility is assigned to an existing bureaucrat—Joint Secretaries are the favourite position for assignment of controversial jobs as they are neither big enough as Secretaries/Additional Secretaries nor too small as Directors. Paraphernalia will have to be developed to continually scan the logging on to and surfing of the Internet