New on my other blogs

KERALA LETTER
A Dalit poet writing in English, based in Kerala
Foreword to Media Tides on Kerala Coast
Teacher seeks V.S. Achuthanandan's intervention to end harassment by partymen
Change of heart? Or stooping to conquer?
Some thoughts on the historic Battle of Colachel

വായന

30 April, 2015

ഒരു വി‌കെ‌എൻ കടിതം


Thiruvilvamala P.O.
Trichur Dt – Kerala
680588
1 January 1983

ശ്ശെടാ ബാബുഷ്കരേ,
                          ഉൻ കടിതം.
                           മെച്ചിനോം.
                            വരേൻ.
                                             വി കെ എൻ
   Scoop

                      ഇന്റയ്ക്ക് പുത്താണ്ട്.

29 April, 2015

On Veena Vidwan S. Balachander

                S. Balachander

One of the rewards of journalism is the opportunity it provides to meet interesting people.

Renowned Veena vidwan S. Balachander (1927-1990), whose acquaintance I made during my stint as a journalist in Chennai, was a very colourful personality who exuded much warmth.. He wrote very artistically. His signature was unique: it looked like a drawing of his favourite instrument, the Veena.

The Indian Fine Arts Society awarded him the title of Sangeetha Kalasikhamani during its golden jubilee celebrations. He sent me a personal, handwritten invitation to the function. 



Unfortunately I was preoccupied on that day and I wrote to him regretting my inability to attend the function. He wrote back thanking me for the letter.



Balachander is no more. But his music lives on. Now listen to the Maestro. Happy Listening! 

28 April, 2015

Ending judicial self-propagation

BRP Bhaskar
Gulf Today

India has the dubious distinction of being the only country where judges appoint judges. This was not what the Constitution provided for. The Supreme Court converted the higher judiciary into a self-propagating entity, exercising its right to interpret the Constitution.

The Constitution envisaged a system of mutual checks and balances to keep the Executive, the Legislature and the Judiciary on the right path. It vested the power to appoint judges of the Supreme Court and the High Court in the President in consultation with the Chief Justice concerned. Since the President acts on the advice of the Council of Ministers, the Prime Minister’s was the last word.

The Supreme Court reordered things through three judgments, delivered between 1981 and 1998. It whittled down the Executive’s role in the appointment and transfer of judges and made the Chief Justice’s the last word. The act of aggrandisement did not provoke much criticism because few believed the government’s intentions were pure.

Judicial inroads into the realms of the Legislature and the Executive began when they became weak after the death of Prime Minister Jawaharlal Nehru. In the first post-Nehru election in 1967, the Congress retained power but it lacked the two-thirds majority in the Lok Sabha required to pass a constitutional amendment. That year, in the Golaknath case, the Supreme Court ruled that Parliament did not have the power to amend the fundamental rights chapter of the Constitution.

In several previous judgements the Court had held that Parliament had unfettered power to amend the Constitution. After leading the Congress to a resounding victory in the 1971 elections, Prime Minister Indira Gandhi amended the Constitution to reassert Parliament’s right which had been extinguished by the court.

The Judiciary now moved one step backward. In the Kesavananda Bharathi case, the Supreme Court conceded that Parliament could amend all parts of the Constitution, including the fundamental rights chapter. At the same time, by a 7-6 majority it imposed a restriction: the amendment should not alter the basic character or essential features of the Constitution. These features were not identified or defined.

In both the cases the court relied on borrowed concepts. To save previous amendments in the fundamental rights chapter which the court had upheld, the Golaknath judgement applied the US principle of prospective overruling. The basic character concept was taken from a Pakistani judgement. While the Pakistani court invented it to limit the power exercisable by a military dictator the Indian court applied it to restrict the authority of democratically elected governments.

When the time came to appoint a new Chief Justice, Indira Gandhi overlooked the seniority of three judges who were part of the majority in the Kesavananda Bharati case. This was widely seen as an attempt to discipline the judiciary. The superseded judges resigned.

In the last 65 years Parliament has amended the Constitution about 100 times. The number of times the Judiciary has amended it through the process of interpretation, as in the Golaknath and Kesavanand Bharati judgements, remains untabulated. The most daring of the judicial amendments came through the verdict in the Judges cases.

The first of these arose after Indira Gandhi returned to power following the collapse of the Janata government. In it, the Court conceded primacy to the Executive in processes relating to appointment and transfer of judges. In the second case, which came up when PV Narasimha Rao’s minority government was buying up majority support, the Court granted primacy to the Chief Justice of India but laid down that he should act in consultation with a collegium comprising his two seniormost colleagues.

The Court’s third verdict was the opinion it rendered in a Presidential reference in 1998, when AB Vajpayee was heading a coalition of more than a score of parties. While asserting the CJI’s primacy, it raised the strength of the judges’ collegium from two to four.   

Last August the Narendra Modi government pushed through the two houses of Parliament a bill to scrap the collegium and set up a National Judicial Appointments Commission with the CJI as the chairman and two seniormost judges of the Supreme Court, the Law Minister and two eminent persons, who will be nominated by a committee comprising the CJI, the Prime Minister and the Leader of the Opposition, as members.

The new system will end judicial self-propagation and provide the Judiciary and the Executive equal voice in the appointment of judges. Its constitutionality has been challenged in the Supreme Court. Hopefully, the Court will realise that the collegium system which it created is wholly undemocratic and the time has come to do away with it. -- Gulf Today, April 28, 2015.

23 April, 2015

Old photographs bring the light of other days around me



A set of photographs taken when I arrived at the Bombay regional office of United News of India in July 1973 after the agency's management revoked the order terminating my services following a five-day strike. The pictures above show Madhu V Shettye, President of the UNI Employees Union, Bombay, and colleagues welcoming me. (Madhu was a veteran journalist of Free Press Journal.) 


Inside the Bureau. On my right is S B Kolpe, President of the Indian Federation of Working Journalists, and  on my left is K K Duggal, who replaced me as Regional Manager at Bombay.

In December 1972 the management of UNI transferred me from New Delhi to Bombay. The UNI Employees Union, Delhi, was agitating for wage revision at the time. I did not involve myself in the Union’s work since, as News Editor, I was functioning in a supervisory capacity. However, as Vice-President of the Delhi Union of Journalists, I was active in the campaigns of the Indian Federation of Working Journalists.

UNI journalists got MPs to raise the wage revision issue in the two houses of Parliament. Based on information provided by the UNI management, Information and Btoadcasting Minister I K Gujral told Parliament the Union’s demand was unjustified as the news agency had implemented the Wage Board proposals the previous year. Under the law, the Union cannot raise a fresh wage demand for three years. The government’s response demoralized my colleagues at the Desk,who were looking forward to an improvement in their emoluments. I told them to challenge the minister’s statement which was not entirely correct. UNI had not implemented the Wage Board proposals fully. The agreement the management signed with the Union only provided for implementation of the pay scales proposed by the Board. The dearness allowance rates proposed by the Board were not being paid. Since the Wage Board proposals had not been fully implemented the UNI management could not invoke the clause about three-year bar. In the agreement signed with the management, the Union had, of course, agreed not to raise any new wage demand for three years. On its part, the management had agreed to revise the emoluments if the agency’s finances improved. Its finances had improved, and the management had an obligation to revise the emoluments in terms of this commitment.

Gujral was furious when he got the Union’s rejoinder to his statement. He blasted the General Manager for misleading him and rendering him liable to be hauled up for misleading Parliament. The General Manager knew he could no longer get the government to back his stand. He was aware that I had helped the Union to save the situation and decided to get me out of the way. The Union offered to raise the issue of my transfer. I advised them against it. I told the Secretary, George Mathew, that the management could not now avoid wage revision and the Union should not provide it an opportunity to bargain by taking up the issue of my transfer.

Having worked closely with the General Manager for more than four years, I had a fair idea of how his mind worked. I knew he was sending me to Bombay since there was a rival UNI Employees Union there. I was ready to face more trouble from the management. When I asked for a week’s leave to visit my family, which was still in Delhi, the management decided to strike. Within an hour of arrival at my Delhi residence, a UNI messenger delivered the sack order. It simply said “it has been decided to terminate your services, which is done herewith”.  An hour later T. P. Alexander, a reporter of the Bombay bureau, telephoned me and said K.K.Duggal had come from Delhi and taken charge of the office. Duggal, who had been News Editor before me, was flown to Bombay the previous night for the purpose.

“What happens to you?” asked Alex. “I have got a letter saying my services have been terminated,” I said.

“We are going on strike,” Alex said immediately. I told him I did not want colleagues in Bombay to stick their necks out. I would consult the Delhi union and the IFWJ, and there should be no precipitate action in the meantime, I said.

IFWJ Secretary General B R Vats and I met M K Ramamurthi, former IFWJ Secretary General who had left journalism and was practising at the Supreme Court.  He told us: “If the UNI union is capable of action, this is the time for it.”

The Delhi Union called an emergency general body meeting. Vats and Santosh Kumar, General Secretary, DUJ, conveyed Ramamurthi’s advice to the staff in spirited speeches in Hindi. While the meeting was still on, the Bombay Union announced it was going on strike immediately. The Delhi Union followed suit.

Santosh Kumar, in a report covering DUJ’s activities during the period May 1973 to January 1976, recorded as follows: “In July 1973,we faced another attack. This time, it was the management of the UNI which most arbitrarily terminated the services of another active trade unionist and a former vice-president of our Union, Shri B R P Bhaskar. The attack was met with confidence and strength. The executive held an emergency meeting and congratulated the employees of UNI –both journalists and non-journalists – who had gone on a lightning strike to protest against the medieval and despotic action of the UNI management. Our Union fully supported the strike and also organized a protest demonstration outside the UNI premises. At our request, the journalists and non-journalists of many establishments participated in the daily demonstration held outside the agency offices. The employees of the banks situated in the area also participated in the demonstration one evening, when it was heavily raining and we take the opportunity to specially thank the bank employees and their local organization, the Delhi State Bank EmployeesFederation, for the splendid demonstration of solidarity with us in time of need. Shri Rangarajan, Spl Correspondent of the UNI, played a notable role in this agitation.

“Ultimately, the UNI management relented and revoked the dismissal order served on Bhaskar.”

When the Delhi Union initially decided on a 24-hour strike, the management felt it could weather the storm. The following day the Union extended the strike by 48 hours and then by 72 hours.

On the very first day IFWJ President S B Kolpe and All India Newspaper Employees Federation General Secretary S Y Kolhatkar in a joint statement described the UNI management’s action as one of victimization for trade union activity and demanded that it be withdrawn. Shashi Bhushan, MP from Madhya Pradesh, who happened to be in Bombay on that day, also issued a press statement. So did a host of local politicians including Muslim League MLA G M Banatwala.

Bombay PCC President Rajani Patel sent a telegram to Prime Minister Indira Gandhi asking her to intervene in the issue. Blitz Editor RK Karanjia visited the UNI Bombay bureau to express solidarity and dealt with the issue in his column in the next issue of the weekly.

While the strike was on, the Maharashtra Union of Journalist met at Pune for its annual conference. Chief Minister V P Naik, who inaugurated the conference, condemned the UNI management’s action and said the state government would not let the agency get away with it. State Minister for Information Sharad Pawar who was the chief guest on the second day also made a similar declaration. The MUJ designated the following Friday as UNI Day and held out threat of a statewide newspaper strike. The newspapers which are owners of the agency rarely take interest in its affairs. They were forced to sit up and take notice when S R Kulkarni, President of the All India Port and Dock Workers Federation, said dock workers would refuse to handle newspaper consignments of the newspapers which are on the board of directors of UNI if the sack order was not withdrawn.

On the fifth day the UNI management contacted Vats and sought IFWJ’s help to settle the issue. It offered to withdraw the sack order but wanted me to accept transfer to another centre. The management gave me a list of six centres to choose from. They were all in states where the chief ministers were displeased with UNI correspondents for one reason or another. From the list I picked Srinagar after making sure that N S Malik, who was then posted there, was ready to move. “If Iam going to get into trouble,” I told myself, “let it be in Jammu and Kashmir.”

What infuriated the trade union movement was the arbitrary nature of the management’s action. The termination notice mentioned no charges. Union Labour Minister K V Raghunatha Reddy asked the General Manager what was cause for action. He replied that the management had lost trust in me. He explained that the agency’s lawyer had advised against mentioning any charges since that would cast upon the management an obligation to hold an inquiry into the charges. Air India had dismissed a senior executive without citing any reason and the Supreme Court had upheld the airline management’s stand that it could not keep a person whom it did not trust in a key position.

In UNI, there was also a third Union -- in Kerala. It did not join the strike. Its President was Vayalar Ravi, MP. When I met Ravi later I asked why his union had stayed away. He said he was told by a senior UNI journalist that the issue had been resolved.

I had been with UNI for seven years at that ime, and that was more than I had spent in any institution previously. After my reinstatement I believed I had an obligation to stay on as a large number of colleagues, both journalists and non-journalists, had stuck their necks out for me. In the event I remained with the agency for a total of 18 years, nearly half of my working life. Since I enjoyed considerable professional freedom in the agency, the strained relationship with the management was not much of a problem. (A Facebook note prompted by a set of old photographs)

21 April, 2015

Opposition set to take on BJP

BRP Bhaskar

India’s Opposition parties are gradually recovering from the impact of their stunning defeat at the hands of the Bharatiya Janata Party in last year’s Lok Sabha poll and trying to put their act together.

The BJP won an absolute majority in the lower house of Parliament on its own in the elections, thanks to the vigorous campaign run by its prime ministerial candidate Narendra Modi. In the later Assembly elections too he personally led the party’s campaign, chalking up a series of victories.

The party seized power for the first time in Haryana. Its spectacular performance in the Hindu-majority region of Muslim-majority Jammu and Kashmir compelled the largest party, the People’s Democratic Party, to accommodate it in the coalition government, also for the first time.

Only in Delhi state did the Modi magic fail. An unprecedented consolidation of non-BJP votes in favour of the Aam Aadmi Party there broke the party’s run of successes.

The Rashtriya Swayamsevak Sangh, which played a key role in the BJP’s election campaign, has since strengthened its hold by inducting some of its leaders into important position in the party and the government. Flush with power, some RSS-affiliated outfits have been making efforts to convert poor people belonging to the minority communities to Hinduism under a ghar wapasi (homecoming) programme, offering allurements.

Desecration of churches has been reported from several places, including Delhi. Government spokesmen have claimed that the attackers were thieves and that there was no religious motive. 

BJP members of Parliament have called upon Hindu women to produce more children. A leader of the Shiv Sena, the BJP’s partner in the Central as well as Maharashtra governments, recently called for sterilisation of members of the minority communities. Following criticism, he withdrew the statement.

While opposition parties have formally condemned such statements, there has been no organised resistance to Hindutva activists’ attempt to polarise society on communal lines. By and large the secular parties have been unwilling to confront the the BJP and its affiliates.

Last week, for the first time, the Opposition showed signs that it is ready to take them on.

The party that has suffered the most damage as a result of the BJP’s rise under Modi is the Congress, which had led the United Progressive Alliance government at the Centre for 10 years. It did not win enough seats in the new Lok Sabha for its leader to be recognised as the Leader of the Opposition.

In the Assembly elections that followed, the Congress lost power in Haryana, in Maharashtra, where it headed a coalition with the National Congress Party, and in Jammu and Kashmir, where it was a partner in the government headed by the J and K National Conference.

For long the country’s largest party, the Congress has now been pushed to the second position. Modi makes no secret of his dream of a Congress-free India.

Congress President Sonia Gandhi had made her son Rahul the party’s Vice-President in 2013 amid speculation that she would soon hand over the reins to him. As the party’s main campaigner, he earned the most criticism for the electoral reverses from inside as well as outside. With the party in a state of paralysis, the expected transition did not take place.

Last week Rahul Gandhi returned home after an eight-week sabbatical abroad. On Sunday he appeared with his mother at a farmers’ rally in Delhi to protest against the Modi government’s plan to turn over agricultural land to industries. This may well be the issue on which the Modi government faces the biggest challenge.

Also on Sunday the Communist Party of India-Marxist picked Sitaram Yechury as its General Secretary in place of Prakash Karat whose tenure saw a sharp decline in its fortunes. Yechury vowed to mobilise resistance to the BJP’s neoliberal policies and communal agenda.

Earlier this month six breakaway factions of the Janata Party, which was put together by eminent freedom-fighter Jayaprakash Narayan to challenge Indira Gandhi’s Emergency regime, announced their decision to reunite to take on the BJP. They include the Samajwadi Party, the ruling party of Uttar Pradesh, the Janata Dal (United), the ruling party of Bihar, and the Rashtriya Janata Dal, the Indian National Lok Dal and the Janata Dal (Secular), former ruling parties of Bihar, Haryana and Karnataka respectively.

In the Lok Sabha poll the BJP had established supremacy over these parties in their strongholds. They have come together to protect their turf.

The BJP recently conducted a membership campaign and claims it is now the world’s largest political party. The strength of a party cannot be measured only in terms of number of members. The opposition parties need to improve their working from the grassroots level upwards to pose an effective challenge to the resurgent BJP. --Gulf Today, Sharjah, April 21, 2015.

14 April, 2015

Action plan against NGOs

BRP Bhaskar
Gulf Today

Close on the heels of Prime Minister Narendra Modi’s open exhortation to the Judiciary to guard against “five-star activists”, the government last week launched a direct attack on Greenpeace, the global non-government organisation whose Indian chapter is spearheading the people’s campaign against some of his pet projects which endangers life and livelihood of the poor.

Modi delivered his warning against activists at a conference of Chief Justices and Chief Ministers, a periodical exercise aimed at sorting out matters of mutual concern to the Judiciary and the Executive.

The Judiciary, he said, should be cautious about delivering perception-driven verdicts, especially when perceptions were sourced from five-star activists.

Indira Jaising, a former Additional Solicitor-General, in a forthright response, said Modi seemed to be targeting his opponents and those critical of the development policies of the ruling dispensation. “The message for the Judiciary,” she added, “is: ‘Don’t mess with me or my development policies.’”

The attempt to intimidate the Judiciary into taking an anti-activist line came a few weeks after the Delhi High Court quashed a government order which prevented Greenpeace campaigner Priya S Pillai from boarding a flight to London. Her mission was to draw the attention of British parliamentarians to a mega project of a UK-based company which threatens to destroy the environment and uproot tribes in a forest area.

Last week the government launched a fresh attack on Greenpeace. This time it sought not to restrain an individual activist but to immobilise the entire organisation. It suspended Greenpeace India’s licence to receive remittances from abroad for six months and blocked its bank accounts.

Some of the government’s allegations against Greenpeace were couched in vague terms. For instance, it accused the NGO of campaigning, protesting and lobbying against the government policies and attempting to delay and obstruct energy plans. One charge was downright frivolous: it accused the NGO of holding talks with the Aam Admi Party, the ruling party of Delhi state. Another was hilarious: it said the NGO had placed a full-page anti-nuclear colour advertisement with a sarcasm-laden header in a leading English daily.

Greenpeace India accused the government of conducting a smear campaign against it and vowed to continue campaigning on issues fearlessly. It also said it would challenge the government order in court.

Following a Supreme Court directive, the Central Bureau of Investigation wrote to all state governments in 2013 seeking information on non-government organisations registered with them. Not all of them replied.

Based on the replies received the CBI estimated that there were about two million NGOs in the country. Uttar Pradesh topped the list with more than half a million and Kerala came next with about 369,000. Most of them are actually voluntary organisations engaged in social work with grants from the government and meekly toe the official line.

Unlike them, the Indian chapter of Greenpeace, formed in 2001, is an advocacy group which seeks changes in policies detrimental to the interests of the people, especially the poor, and provides constructive leadership to grassroots-level campaigns against disastrous policies pursued by the government. Since 2010, it has been promoting sustainable agricultural projects and solar-based energy models.

Former Delhi University professor Achin Vinaik, prominent environmentalist Ashish Kothari, leading lawyer Vrinda Grover and G. Gautama of the Chennai-based Krishnamurthi Foundation are among the members of Greenpeace India’s executive committee.

Greenpeace India receives funds from abroad but local donations finance most of its activities. It spent about Rs335 million in 2013. Of this, Rs200 million came from local donations. Foreign grants amounted to Rs132 million. Greenpeace accepts donations only from individuals and foundations. It does not accept donations from governments and corporate entities.

The hunt is unlikely to stop with Greenpeace. Home Ministry officials were ready with an action plan against a whole range of NGOs even before Modi took office. The day before he took oath as Prime Minister, a Delhi newspaper reported that good days may be over for NGOs operating in sectors like participatory democracy, advocacy, action research, innovative communication, inclusiveness etc.

It quoted sources as saying the Home Ministry’s Foreigners Division was tightening the noose around NGOs and that those who organised workshops on regulatory frameworks, developing communication strategies, people’s participation, policy analysis etc were being screened. Modi couldn’t have asked for more. --Gulf Today, Sharjah, April 14, 2015.

07 April, 2015

A law unto itself

BRP Bhaskar
Gulf Today

For 12 years the Gujarat government, under Narendra Modi, relentlessly sought to enact a draconian law ostensibly to combat terrorism.

But the Centre – first the Bharatiya Janata Party-led government of Atal Behari Vajpayee and then the Congress-led government of Manmohan Singh – blocked assent to the measure.

Last week, the State Assembly passed the Gujarat Control of Terrorism and Organised Crime (GCTOC) Bill for the fourth time.

With Modi in the Prime Minister’s chair, it may now be cleared by the Centre.

Two high-ranking police apologists, former Central Bureau of Investigation Director RK Raghavan and former Maharashtra police chief D. Sivanandan, immediately commended the measure publicly.

They conceded it was not perfect but wanted it to be viewed “as a piece that would hone itself over the years in the hands of those in authority.”

But the history of India’s black laws and the record of the Gujarat police leave no room for optimism.

When the Centre returned the bill to the state for the second time, it had suggested changes in three clauses.

However, Modi got the Assembly to pass it again without any change.

In their laboured defence of GCTOC, Raghavan and Sivanandan did not explain why the state wants a separate law to deal with terrorism when it can use the laws enacted by the Cenbtre from time to time.

First, there was the Terrorist and Disruptive Activities (Prevention) Act (TADA) of 1985, which was in force for 10 years before it was allowed to lapse in view of strong public criticism.

In 2002 the Vajpayee government enacted the Prevention of Terrorism Act.

The first Manmohan Singh government repealed POTA but incorporated some of its harsh features in the Unlawful Activities Prevent Act, brought in to check threats to the nation’s sovereignty and integrity 40 years earlier.

Many of the provisions of the Gujarat law are copied from the Maharashtra Control of Organised Crime Act (MCOCA), enacted in 1999 to deal with gangsterism in Mumbai.

It was made applicable to Delhi in 2002.

An official committee which reviewed the working of MCOCA found that on an average about 40 cases were registered under it each year and six or seven arrests were made in each case.

Only a small number of persons hauled up under it belonged to minority communities.

The fond hope of Raghavan and Sivanandan about Gujarat police patterning themselves after their Maharashtra counterparts is unsustainable.

A National Human Rights Commission study found that Gujarat accounted for as many as 19,000 of the 65,000 TADA cases although there was no significant militant activity in the state during the decade that the law was in force.

Modi, of course, bears no responsibility for the misuse of TADA in Gujarat since he became Chief Minister only in 2001.

But he cannot be absolved of blame for the misuse of POTA under his watch.

According to Dr Mukul Sinha, an advocate, in the wake of the communal riots of 2002, the state government used POTA to perpetuate the communal divide.

In all but one of the 287 POTA cases the accused were Muslims.

The lone exception was a case against Sikhs.

Gujarat police officials were involved in several cases of fake encounters and illegal snooping.

Coinciding with Modi’s rise on the national stage the noose around their necks has loosened.

But the Supreme Court’s damning conclusion that the state police implicated innocent persons in the Surat blast and Akshardham encounter cases cannot be brushed under the carpet.

The police love black laws because they make things easy for them.

Recognising the police’s propensity to extract confessions from those in custody, the colonial regime made them inadmissible as evidence in courts, and that is still the law of the land.

However, the black laws allow such confessions as evidence, permit tapping of telephones and provide a time-frame of 180 days, instead of the normal 90, to file charge-sheets.

They also make it hard for the accused to get bail.

There is nothing to prove that black laws have a deterrent effect.

On the contrary, there is evidence to show that they are counterproductive.

No charges were framed against 18,708 of the 76,166 persons on whom TADA was slapped till 1994, and only four per cent of those charged were found guilty.

As the well-known human rights organisation People’s Union for Civil Liberties has pointed out, such laws are actually tools of state terrorism. -- Gulf Today, Sharjah, April 7, 2015.

01 April, 2015

Securing cyber freedom

BRP Bhaskar
Gulf Today

India’s Internet community, now believed to be 300 million strong, heaved a sigh of relief last week as the Supreme Court struck down a notorious legal provision which was hanging over their heads like the sword of Damocles.

The provision, Section 66A of the Information Technology Act, made electronic transmission of messages which are grossly offensive or menacing or aimed at causing annoyance or inconvenience an offence punishable with imprisonment of up to three years and a fine. It was smuggled into the 2000 Act through an amendment, which Parliament passed without close scrutiny.

It was obnoxious for two reasons. One was that it used vague terms such as ‘grossly offensive’ and ‘causing annoyance or inconvenience,’ which could be stretched to cover almost anything.

The other was that it empowered the police to register a case on receipt of a complaint and arrest the alleged offender without even a preliminary enquiry.

The provision was widely misused by the police under the influence of politicians, including those who were not holding any office. At the instance of the Shiv Sena, the Maharashtra police arrested two young women for their disapproval of the Mumbai shutdown in mourning for the party’s founder, Bal Thackeray. A small industrialist in Puducherry was held for a tweet which said former Union minister P Chidambaram’s son, Karti, had made more money than Congress President Sonia Gandhi’s son-in-law Robert Vadra. A Keralite working in a Gulf State was enticed home for circulating the photograph of a palatial building falsely claiming it was Communist Party of India-Marxist leader Pinarayi Vijayan’s house.

In response to a Right to Information Act query a newspaper was informed that in a two-year period 137 cases under Sec 66A were registered in five of Delhi state’s 11 police districts. Data relating to the other districts was unavailable.

India’s Constitution guarantees the citizens freedom of speech and expression but allows the state to place reasonable restrictions on all freedoms in the interests of national security, sovereignty and integrity, friendly relations with other countries, public order, decency or morality. The court held that the restrictions imposed by the vaguely worded Section 66A go beyond the limits of reasonableness and had a chilling effect on free speech.

The court verdict elicited contradictory responses. Avid social media users hailed it as a Magna Carta for our times. Self-appointed protectors of the order mourned that the state was no longer in a position to defend itself against the depredations of irresponsible Net users.

Both responses are based on inadequate appreciation of facts. The best part of the judgement is that the police can no longer arrest a person on the basis of a mere complaint. However, the state can still block writings it does not approve of. Section 69A of the IT Act and the rules framed under it give the government the power to itself block or order intermediaries such as Facebook or internet or telecom service providers to block access to any information generated, transmitted, received, stored or hosted in any computer resource.

Also intact are Section 79 and the rules which cast on the intermediaries a duty to remove or disable access to certain kinds of material within 36 hours of being notified by the government or its agencies. These provisions also exempt the intermediaries from liability if they follow stipulated conditions.

The court let these provisions stand even though, like Section 66A, they are couched in vague terms. However, it said, they must be “read down.” Analysts took this to mean that the intermediaries need act on a government directive only if it is backed by a proper notification or court order.

Critics of the IT Act have argued that no separate cyber law is needed as the ordinary laws of the land have enough provisions to protect national sovereignty and integrity, friendly relations with other countries, public order, decency and morality. However, the court said there could be a separate law to deal with cyber crimes.

The problem really is not the intent of the law but the propensity to misuse its provisions. While the court verdict has reduced the scope for police intervention there is still room for politicians to play around.

Cyber freedom inevitably carries with it the threat of misuse by reckless users. But the consequences of such misuse are often exaggerated. Activities by state and non-state agencies possibly pose far greater threats than malicious individuals. -- Gulf Today, Sharjah, March 31, 2015.