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Why Sibal is smarter than Rajiv Gandhi

New Delhi, Dec. 1: Take a quiz. Here are the clues.

The honeymoon has soured and the great hope sunk

The government is under the shadow of kickbacks allegations

The government decides to call criticism “grossly indecent”, “scurrilous” and “intended for blackmail” and crucify the critics

The government wants to prescribe a minimum period of jail for the critics.

Now the question: Name the year and the government.

That was the summer of 1988. The Rajiv Gandhi government had run into the Bofors scandal and chose to spring an anti-defamation bill that was widely seen as a besieged government’s bid to gag the press.

When a politician or bureaucrat disliked what was written in a newspaper, he or she could use loosely defined terms to bring charges against journalists under the provisions of the bill.

However, if your answers were “2012” and “the Manmohan Singh government”, you could have got away with it but for a detail.

The Rajiv government tried and failed to push through the anti-defamation bill despite its 400-plus majority in the Lok Sabha because of an explosion of protests.

The Manmohan government, whose majority depends on the whims of other parties, pulled off the spectacular feat of squeezing in a technology-updated cousin of the aborted law without a murmur in Parliament.

The worthy successor is known by two digits and a vowel: 66A, the clause in the Information Technology Act that has been used to harass several people across the country, including in Bengal.

But what Kapil Sibal, the IT minister who has been defending his baby from television screens, is refusing to acknowledge is the government does not need a new law to harass citizens. Its arsenal is already brimming with enough arrows tipped with the Indian Penal Code provisions. (See chart on right)

If Sibal still insists that Section 66A is needed, it means only one thing: the government wants powers to put citizens in jail without going to a magistrate.

The dreaded tag of cognisable offence is the big difference — other than quibbles by Sibal, such as the old laws’ silence on the Internet — that separates laws that existed and the amendment that was passed without debate two years ago.

Once an offence is tagged “cognisable”, police, who cannot be accused of acting with alacrity without a political nudge, can arrest a suspect without seeking a magistrate’s permission.

All the IPC sections that deal with offences similar to those covered by Section 66A fall under the non-cognisable category (see the green bars in chart). This means a magistrate’s permission is needed before people are hauled into lock-ups.

The government has successfully rectified that “mistake” by making Section 66A cognisable.

Asked, former Chief Justice of India J.S. Verma declined to comment on the constitutional validity of Section 66A as the matter is sub judice (the Supreme Court is examining it).

But the former Chief Justice made a pertinent point that illustrated the depth of the problem: Section 66A was “unsafe” in the hands of the authorities and it had been used only “where the powerful have been offended”.

“I have always felt right from the beginning that the manner in which the provision has been used is most unsafe in the powers that be. They have taken the action only in respect of those cases where the powerful have been offended. I am glad the Supreme Court has come down heavily on them,” Verma told The Telegraph.

Other legal experts said Section 66A was “irrelevant”, “absurd” and needed to be “scrapped”.

Constitutional expert Harish Salve and senior lawyer Sushil Kumar said that if offensive messages and defamation were the problem, the IPC’s provisions were strong enough to tackle them.

Salve believes there is no need even for the IPC defamation law, Section 500. At the very least, he says, publications should be taken out of its ambit and the provision confined to offensive messages sent privately through mobile texts or other means.

Kumar, who defended the Parliament shootout accused in the Supreme Court, contended that the apex court should stay the provision (which it has declined to do) till it decides the clause’s constitutional validity. “My view is that it is irrelevant, absurd and needs to be scrapped immediately.”

The Centre’s stand on 66A, expressed through attorney-general G.E. Vahanvati in the apex court, is that the clause may be “grossly abused” but should not be junked altogether. The government believes that its new advisory, stipulating a top police officer’s permission for invoking the clause, is sufficient to stop abuse.

But Kumar said the IPC covered “everything” and the IT Act clause wasn’t required at all. “It’s unnecessary —that’s why, perhaps, it is being misused.”

He referred to the Maharashtra arrests over a Facebook comment questioning the Mumbai shutdown for Bal Thackeray’s funeral.

“If you take Facebook, it is not a newspaper or a periodical where you can claim defamation. It is a social networking site between two friends,” Kumar said. People once wrote letters and now they are using the Internet to communicate, he argued, so why should the authorities be so panicky?

Senior criminal lawyer and former Delhi High Court judge Jaspal Singh said the authorities were virtually acting like “dictators” by invoking Section 66A instead of IPC provisions.

He argued that the victims of the provision’s misuse should receive compensation — not only from the government but also from the officers responsible for their plight.

Singh did not advocate scrapping Section 66A but insisted it should be amended because its vague wording leaves too much room for mischief.