Monthly Archives: June 2009

HUMAN RIGHTS IN CYBERSPACE, INTERNET AND ICT ENVIRONMENT

Human Rights have many facets and are exercisable in multiple jurisdictions and environments. Originally, Human Rights were available for redressing violations of traditional wrongs and crimes. The origin and omnipresence of Internet and Cyberspace has given rise to new challenges and jurisdictions. The Human Rights like Rights to Speech and Expression, Rights to Privacy, Right to Know, Right to Information, etc have acquired new status and meaning in the cyberspace. A new branch of Human Rights in the form of “Human Rights in Cyberspace” has emerged. This aspect being of recent origin, the State all over the world is struggling hard to cope up with its impacts and ramifications.

There is no doubt about the fact that the State lacks the will and expertise to accommodate the challenging facets of Information and Communication Technology (ICT). As a result the State is trying to “impose” unconstitutional, useless, draconian and absurd laws upon the citizens and netizens.

In the Indian context, the Parliament of India is no different from its foreign counterparts. It lacks the will and expertise to accommodate the daunting demands of balancing the Human Rights with the ever increasing use of Internet and Cyberspace. The problem is that the super old politicians of India belong to the vintage era having neither knowledge nor an inclination to bring ICT to the legislative arena. The majority of politicians of Indian Parliament are above 55 years old and some are even 70 years old. It is obvious that we cannot expect good legislative work in the field of Human Rights in the ICT Environment from them. The net result is that India does not have any sort of Legal Enablement of ICT Systems in India or Legal Framework for Information Society in India.

The next best option seems to be to use the expertise of those who can do this job for the Parliament. The Parliament of India is also not willing to allow non-parliamentary members of Indian community to do the job on its behalf. As a result the defective and oppressive laws are suggested by its peoples and the same are “imposed” upon the nation. Take the example of the proposed Information Technology Amendment Act, 2008 (IT Act, 2008). It is a weak, defective and inadequate law on many counts. Still the Government of India (GOI) is forcing it upon the Indian Citizens as the GOI does not possess the capability and expertise to enact good cyber law for India. Whatever law is suggested by its own people the same is implemented with a “blind eye and deaf years”.

Another aspect that shows an indifferent attitude towards providing strong and effective Human Rights protection in Cyberspace relates to the “indecisiveness” of the GOI regarding “notification” of the laws enacted by it. For instance, the IT Act, 2008 has sill not been “notified” despite the fact that it received the assent of President of India on 5th February 2009. This shows that the GOI is not “confident” of its own actions and regulations in this regard. A strong, committed and dedicated Government would either notify the enacted Acts or it would come out openly and declared that the Act would be “reformulated suitably”. There is no room for “diplomacy” in law making that GOI is presently following. In my suggestion, the GOI must come out openly and declare that it would reformulate the IT Act, 2008 with better, strong and effective provisions. Otherwise Human Rights would keep on looking for a saviour to protect them from State excesses.

UNCONSTITUTIONAL LAW MAKING AND HUMAN RIGHTS

Every Nation makes wrong and distorted laws at some point of time or other. The courts, as guardians of basic Human Rights and other statutory rights, declare such laws bad. On such declaration these laws become “Unconstitutional and Inoperative” being against the very Constitution that regulates the conducts of Executive, Legislature and Judiciary. The Constitution has bifurcated essential tasks to these three sovereign constituents of the Constitution in the hope that each would keep a check upon the other. The real problem starts when one branch of Governmental functioning becomes “All Powerful” and starts influencing the others one.

The Executive branch is generally considered as the most powerful and dangerous branch all over the World. India is definitely no exception to this rule. The real problem arises when the Government has a “Free Go” to do whatever it likes and the Judiciary becomes a “Moot Spectator”. In that case, the Constitution in general and the Human Rights in particular looses their “Significance and Impact”. Surprisingly, this scenario is very “Commonly Found’ all over the World. The”Judicial Activism” astonishingly stops at this point of time and the concept of “Suo-Motu Action” becomes an alien concept.

This is the point and stage at which “Totalitarianism” creeps in and the laws are imposed upon the citizens of the concerned Nation. We have been witnessing such “Draconian Laws” all over the World these days. As far as India is concerned, it just entered the “League” by suggesting (it has yet to become an applicable law) the Information Technology Amendment Act, 2008 (IT Act, 2008) that contains provisions which are bound to be abused very soon.

The first thing that is worth noticing about the IT Act, 2008 is that it has been passed without any “discussion or debate” by the Parliament of India. Many laws were passed in similar fashion within few minutes. This is not the “Mode and Manner” that the Constitution of India has prescribed for law making in India. This episode has just shown that the Government of India (GOI) is just interested in “basic formalities” without meeting the “Rigours and Mandates” of the Constitution of India (COI). The heavyweight concepts like “Democracy”, “Parliamentary Democracy”, etc just proved mere words having no significance for and restrictions against the Parliament at all. All that the GOI is interested in is some law, howsoever bad and offensive it may be, to fall back upon and justify its illegal and unreasonable actions in future. It failed to appreciate that a law must be “Just, Reasonable and Fair” to escape the clutches of Articles 14, 19 and 21 of the COI. Otherwise it would be declared as “Unconstitutional” by the High Court(s) or the Supreme Court of India.

Now the IT Act, 2008 is violative of Article 14, 19 and 21 and other Fundamental Rights on “Numerous Counts” (would be discussed separately and subsequently). However, the GOI is “Very Strongly Interested” in pushing it further despite all odds. With the unreasonable and illegal e-surveillance provisions in the IT Act, 2000 and other deficiencies, the floodgate of litigations would be opened soon.

However, what would happen if neither Executive nor Judiciary would be “Interested” in challenging and analysing this “Unconstitutional Law making”? The answer is very simple. The modern version of “Private Defense” would come into play with full rigours and beyond the capacity and capabilities of GOI. To give an example let us consider the cases of “Blocking of Websites” by GOI in the past. The GOI has blocked various websites from time to time. However, Netizens found the methods of bypassing the same by relaying the traffic through “Proxies”. A site not accessible in India can be accessed through US, UK or at any other place through this mode.

The GOI must understand that it is wasting Crores of hard earned public money on “Futile and Unconstitutional Actions”. This way they are not going to catch the real culprits but would only harass the innocent victims and Netizens.

This initiative has been primarily undertaken to suggest relevant policies and strategies to the Government of various Nations in general and Government of India in particular regarding valid, legal and constitutional e-surveillance and e-actions. At the same time this platform would also suggest various “Techno-Legal Measures” to avoid illegal, unreasonable and unconstitutional e-surveillance and e-excesses by various Governments. To achieve this purpose this platform would suggest both “Technological” as well as “Legal” measures.

Needless to mention that this initiative intends to “Safeguard” the interest of law abiding Netizens alone and is not a platform for criminals and offenders to settle their scores against the respective Governments. All suggestions, strategies, measures, etc suggested at this platform are subject to the “Disclaimer” available at this site. Readers and viewers of this site must act on their own discretion after duly consulting the Legal and Law Enforcement Personnel.