GOVERNMENT OF INDIA
Ministry of Communications and Information Technology
(DEPARTMENT OF ELECTRONICS & INFORMATION TECHNOLOGY)

 RAJYA SABHA
UNSTARRED QUESTION NO. 1883
ANSWERED ON JULY 25, 2014

 QUESTION
Amendment in Information Technology Act

1883. SHRI RAJEEV CHANDRASEKHAR:

Will the Minister of COMMUNICATIONS & INFORMATION TECHNOLOGY be pleased to state;

(a)   whether in view of several recent incidents highlighting misuse and discretionary interpretation of Section 66A of the Information Technology Act, 2008, Government would consider amending the Act accordingly, so as to prevent such actions which pose a danger to the constitutional guarantee of free speech for all citizens;

(b)   whether Government would also consider annulling the Information Technology (Intermediary Guidelines) Rules, 2011 which violate constitutional rights of freedom of speech and expression and replace them with new set of rules framed through a public, multi-stakeholder consultation; and

(c)    if so, the details thereof and if not, the reasons therefor?

ANSWER
MINISTER FOR COMMUNICATIONS AND INFORMATION TECHNOLOGY
(SHRI RAVI SHANKAR PRASAD)

(a): The provisions of section 66A of the Information Technology Act, 2000 are in line with the freedom of speech and expression and citizen's rights enshrined in articles 19 and 21 of the Constitution of India. Section 66A was provided in the Information Technology Act, 2000 based on the international best practices and similar provisions in the Communications Acts of a number of countries. Detailed discussions were held on 29.11.2012 in the Cyber Regulation Advisory Committee (CRAC) set up under Section 88 of Information Technology Act 2000 with stakeholders including the Industry Associations, intermediaries, Civil Societies and users on Section 66A of the Information Technology Act, 2000. In the meeting, it was unanimously agreed that the law as such is quite appropriate but care need to be taken to prevent the possibilities of its misuse and all concerned would work together to minimize the unintended consequences and evolve the processes and guidelines to prevent misinterpretation of the provisions of the Act.

Accordingly, Government on 9.1.2013 issued an Advisory to State Governments for proper implementation of Section 66A of the Information Technology Act 2000.

In a writ petition No. 167 of 2012, the Hon'ble Supreme Court in its order dated 16.5.2013 has directed all the States / Union Territories to ensure compliance to the Advisory before effecting arrest under Section 66A of IT Act 2000. Hon'ble Supreme Court also directed that a copy of the Order be sent to Chief Secretaries of all the States / Union Territories.

Accordingly, the copy of the Hon'ble Supreme Court Order and Advisory was sent to the Chief Secretaries of all the States / Union Territories on 10.6.2013. State Governments have informed that steps have been initiated to comply with the Advisory in line with the direction of the Hon'ble Supreme Court.

(b) and (c): The Information Technology (Intermediary Guidelines) Rules 2011 was reviewed in a Round Table meeting on 2^nd August 2012 and also on 29.11.12 in the CRAC meeting with all stakeholders including Members of Parliament, Industry representatives and Intermediaries. After detailed deliberations, there was a consensus from all the participants in the meeting on the need for the intermediaries to observe due diligence and exercise care while uploading the content as well as removal / disablement of objectionable content. There was also consensus that the process followed by the Government in framing the Rules was fair and transparent.

In fact, in the Writ Petition No 3672/2012 of K.N. Govindacharya vs. Union of India, Delhi High Court directed the intermediaries, including the social networking sites such as Face book and Orkut, to follow the Sub Rule 11 Intermediary Guidelines Rules 2011 and publish the names of the respective Grievance Officers on their websites along with contact numbers as well as mechanism by which any user or any victim who ·suffers as a result of access or usage of computer resource by any person in violation of rule 3, can notify their complaints against such access or usage. Further, the Division Bench of the Allahabad High Court (Lucknow Bench) had also issued directions to ensure that Sub Rule 3(11) of the Information Technology (Intermediary Guidelines) Rules 2011 is implemented in the country in its letter and spirit.