1. The invalid Sec. 66A is often invoked out of ignorance, but serves as a tool of harassment

It is quite disconcerting that the Supreme Court has been informed for the second time in two years that Section 66A of the IT Act, which was struck down as unconstitutional six years ago, is still being invoked by the police and in some trial courts. One can see why the Court deemed it “a shocking state of affairs” when a petition by the People’s Union for Civil Liberties (PUCL) came up for hearing. Section 66A made messages deemed by the police to be offensive or menacing to anyone, or those that caused “annoyance”, a criminal offence if these were sent through a computer or computer resource. It prescribed a prison term of up to three years on conviction. In its landmark judgment in Shreya Singhal (2015), the Court ruled that the provision was vague and violated the freedom of free speech. It was so broadly defined that it took into its sweep protected speech also, and therefore upset the balance between the exercise of the free speech right and the imposition of reasonable restrictions on it. In January 2019, too, the Court’s attention was drawn to the same problem of the invalidated provision being used by the police to register cases based on complaints. Not much seems to have changed since then, and it is quite surprising that the police headquarters and prosecutors in the various States had not disseminated the effect of the Court ruling among officers manning police stations.

There were also instances of courts framing charges under Section 66A even after lawyers had cited the 2015 judgment. The PUCL has said as many as 745 cases are still pending in district courts in 11 States. It is not difficult to surmise that police officers who receive complaints and register them as First Information Reports may not be aware of the judgment, though one cannot rule out instances of the section being invoked deliberately as a tool of harassment. Ignorance of the law is no excuse for the citizen, and it must equally be no excuse for police officers who include invalidated sections in FIRs. Recently, police in Uttar Pradesh booked a journalist for defamation under Section 500 of the IPC, even though the Supreme Court has ruled that defamation can be pursued only by way of private complaints and there can be no FIR. The current hearing may result in directions to States and the police, as well as the court registries, for appropriate advisories to both station-house officers and magistrates, but it is not necessary for those concerned to wait for such orders. Police chiefs and the directorates of prosecution must proactively begin a process of conveying to the lower courts and investigators all important judgments and their effect on the practices relating to investigation, prosecution and the framing of charges from time to time.

About:

The Supreme Court sought the Centre’s response to a plea alleging that despite the striking down of draconian Section 66A of the IT Act in 2015 by the apex court, police in various states were still invoking it in FIRs to clamp down on free speech on social media platforms.

• The petition said a recent working paper by the Internet Freedom Foundation demonstrated that pending prosecutions under Section 66A had not been terminated, and further it continued to be invoked by police across India in FIRs registered after the 2015 judgment.
• The petition said there had been a huge communication gap at the ground level and many officials may not even know about the Supreme Court verdict.
• It said trial courts and prosecutors were not actively implementing the verdict and the burden of terminating illegal prosecutions based on Section 66A fell on the accused persons.

Background

• Section 66A dealt with information related crimes in which sending information, by means of a computer resource or a communication device, which is inter alia offensive, derogatory and menacing is made a punishable offence.
• In Shreya Singhal v. Union of India judgement, Justices Rohinton F. Nariman and J. Chelameswar had observed that the weakness of Section 66A lay in the fact that it had created an offence on the basis of undefined actions: such as causing “inconvenience, danger, obstruction and insult”, which do not fall among the exceptions granted under Article 19 of the Constitution, which guarantees the freedom of speech.
• The court also observed that the challenge was to identify where to draw the line. Traditionally, it has been drawn at incitement while terms like obstruction and insult remain subjective.
• In addition, the court had noted that Section 66A did not have procedural safeguards like other sections of the law with similar aims, such as :
  • The need to obtain the concurrence of the Centre before action can be taken.
  • Local authorities could proceed autonomously, literally on the whim of their political masters.
• The judgment had found that Section 66A was contrary to both Articles 19 (free speech) and 21 (right to life) of the Constitution. The entire provision was struck down by the court.
• After that government had appointed an expert committee (T.K. Viswanathan committee) which proposed a legislation to meet the challenge of hate speech online.

2.In defence of India’s noisy democracy

In the current moment, it is important to be clear why comparisons with China are not only specious but also dangerous

China’s developmental pathway over the last century has been spectacular. No country in history has ever grown faster and more dynamically. Not only have hundreds of millions been lifted out of poverty, but social indicators have improved dramatically. India’s developmental record has been much more mixed. Since the 1990s, the Indian economy has grown impressively, but it remains far behind China in its global competitiveness. Poverty has come down, but employment prospects for the majority remain limited to low-wage informal sector jobs that are, by definition, precarious. Maybe, most startling of all, improvements in basic social development indicators have lagged, so much so that as Jean Drèze and Amartya Sen have pointed out, India has actually fallen behind Bangladesh and Pakistan.

The ‘too democratic’ line

Comparing these track records, some commentators, including voices in the Government, have drawn a facile lesson. India’s problem is that it is just too democratic. Unlike China, making and implementing key decisions about public investment and various reforms is impossible in the din of multiple and contradictory democratic voices. What is needed are firmer and more independent forms of decision-making that are insulated from this cacophony.

This line of thinking has at various times been embraced by sections of the Left (Leninism) and multi-lateral technocrats and bankers, but, increasingly, has become the animating fantasy of right-wing leaders and movements, ranging from elected autocrats such as Donald Trump, Brazil’s Jair Bolsonaro and Narendra Modi. The strangeness of these bedfellows alone should be cause for alarm. But in the current moment, it is especially important to be clear why comparisons with China are not only specious, but very dangerous.

The claim that less democracy is good for development does not stand up to comparative, theoretical and ethical scrutiny. Contrary to those who believe economic management cannot be left to the whims of democratic forces, the comparative evidence clearly shows that democratic regimes have on balance performed better than non-democratic regimes.

China, with a history of state-building going back two millennia, and an exceptionally well-organised, disciplined and brutal form of authoritarianism, has done especially well in transforming its economy. Africa and West Asia, where authoritarian governments of every stripe have dominated, remain world economic laggards. The Latin American military dictatorships of the 1960s and 1970s had a terrible economic and social record, and it was with the return of democracy and the “pink wave” of Left populist parties that prosperity and social progress were ushered in. Taiwan and South Korea are also instructive. Their economic take-offs happened under military regimes and relied on labour repression. Their transitions to democracy saw their economies move up to the next level and become much more inclusive.

Democracy and development

Most pointedly though, one only has to look within India to understand how development and democracy can thrive together. By just about any measure, Kerala and Tamil Nadu have done more to improve the lives of all their citizens across castes and classes than any other States in India and it is no coincidence that both have also had the longest and most sustained popular democratic movements and intense party competition in the country. In contrast, in Gujarat, where single party Bharatiya Janata Party rule has been in place for nearly a quarter century, growth has been solid but accompanied by increased social exclusion and stagnation in educational achievement and poverty reduction. The comparative record leaves little doubt that on balance, democracies are better at promoting inclusive growth.

The theory behind the authoritarian fantasy also does not hold up. First, the assumption that authoritarianism supports forms of decision-making that can rise above the hubbub of democratic demand-making to get things done presumes that those in command will serve the general interest rather than catering to the powerful and that when they enjoy such autonomy, they actually know what to do with it. This is just hubris. On both these points, democracies are in fact more likely to meet the necessary conditions for successful decision making. Elected representatives, no matter how venal, have to win re-election, which means answering to a broad swath of the electorate.

It allows negotiation

The conflicts and noise that democracy generates may complicate things, but in the end, having to respond to a broad spectrum of interests and identities not only protects against catastrophic decisions, but actually allows for forms of negotiation and compromise that can bridge across interests and even balance otherwise conflicting imperatives for growth, justice, sustainability and social inclusion. The remarkable progress the United Progressive Alliance governments made in building a welfare state (National Rural Employment Guarantee Act, the Right To Information, the right to food and other programmes) is a testament to how a democracy can master even the most complex policy goals. As democratic theorists have long argued, the common good cannot and should not be determined by science, profits, technocrats or autocratic fiat. What it is and how we get there can only emerge out of sustained societal deliberation.

A look at China

India’s tryst with democracy was born not only of its liberation movement but also of its affinity with what makes democracy ethically unique: it promotes equality by endowing all citizens with the same civic, political and social rights even as it protects and nurtures individuality and difference. And this is where the China-India comparison is so problematic, indeed unconscionable.

However one might like to measure or evaluate China’s development successes, there is no way to discount the human cost of the party-made great famine that took some 35 million lives, a cultural revolution that made enemies out of neighbours, a one child policy that devastated families and erased a generation or the violent, systematic repression of the Uyghur Muslim and Tibetan minorities. These were not unfortunate excesses or the inevitable costs of development. These were and are the irredeemable instincts and predations of an authoritarian state, one which now denounces as “historical nihilism” any interpretations of the past that challenge the party’s official history. Conversely, while India’s democracy has been quarrelsome, cumbersome and often dominated by elites, it has also opened social and political spaces for subordinate groups and has built a sense of shared identity and belonging in the world’s largest and most diverse society. It has preserved individual liberties, group identities and religious and thought freedoms, all the things that confer recognition on human beings. To even pose the question of a trade-off between these freedoms and the role they have played in building a pluralistic nation and some cold, utilitarian calculus of “development” not only does violence to the very idea of human agency and dignity but completely abstracts from the very different social and historical realities of India and China.

There is a backslide

Beyond these comparative arguments for democracy, one need look no further than the object lesson the BJP government has provided to dismiss the authoritarian fantasy. The democratic backsliding has been clear. The Government has not only sought to centralise, insulate and personalise decision-making but has also aggressively undermined the independence of democratic institutions and silenced and imprisoned Opposition voices, all in the name of nationalism and promoting development. Yet, the development track is dismal at best. While corporate business interests and the billionaire class have flourished, the overall economy has sputtered and since COVID-19 has experienced the worst contraction of any sizeable economy in the world. Demonetisation and the disastrous response to the second COVID-19 wave were not just instances of utter policy incoherence fuelled by the sycophancy and myopia that comes with an inwardly focused government, but exposed a degree of callousness and arrogance rarely seen in a democracy. On the social front, the pursuit of Hindutva — a prototypical variant of authoritarian ethnic nationalism — has shaken India’s democratic norms and institutional foundations and weaponised a politics of polarisation and demonisation that threaten to unravel the social fabric of the nation.

Line of Actual Control

• Demarcation Line: The Line of Actual Control (LAC) is the demarcation that separates Indian-controlled territory from Chinese-controlled territory.
• LAC is different from the Line of Control (LoC) with Pakistan:
  • The LoC emerged from the 1948 ceasefire line negotiated by the United Nations (UN) after the Kashmir War.
  • It was designated as the LoC in 1972, following the Shimla Agreement between the two countries. It is delineated on a map signed by the Director General of Military Operations (DGMO) of both armies and has the international sanctity of a legal agreement.
  • The LAC, in contrast, is only a concept – it is not agreed upon by the two countries, neither delineated on a map or demarcated on the ground.
• Length of the LAC: India considers the LAC to be 3,488 km long, while the Chinese consider it to be only around 2,000 km.

• Sectors Across the LAC:
  • It is divided into three sectors: the eastern sector which spans Arunachal Pradesh and Sikkim (1346 km), the middle sector in Uttarakhand and Himachal Pradesh (545 km), and the western sector in Ladakh (1597 km).
    • The alignment of the LAC in the eastern sector is along the 1914 McMahon Line.
    • The McMohan line marked out previously unclaimed/undefined borders between Britain and Tibet.
  • The middle sector is the least disputed sector, while the western sector witnesses the highest transgressions between the two sides.
• Disagreements:
  • India’s claim line is different from that of the LAC. It is the line seen in the official boundary marked on the maps as released by the Survey of India, including Aksai Chin (occupied by China).
  • In China’s case, LAC corresponds mostly to its claim line, but in the eastern sector, it claims the entire Arunachal Pradesh as South Tibet.
  • The claim lines come into question when a discussion on the final international boundaries takes place, and not when the conversation is about a working border i.e. LAC.
• Border Negotiations:
  • Indian Prime Minister’s visit to China in 2003 led to the agreement on appointing Special Representatives (SRs) and, in April 2005, there was agreement on the political parameters and principles that would underpin negotiations.
    
    
    • The aim was a comprehensive solution encompassing all three sectors. The agreed boundary would follow well-defined geographical features and respect the interests of the settled populations.
  • During Indian Prime Minister’s visit to China in May 2015, the proposal to clarify the LAC was rejected by the Chinese.
  • However, in the Wuhan (2018) and Mahabalipuram (2019) summits, both China and India had reaffirmed that they will make efforts to “ensure peace and tranquility in the border areas”.

Relevance of Pangong Tso Lake

• Location: It is a long narrow, deep, endorheic (landlocked) lake situated at a height of more than 13,000 ft in the Ladakh Himalayas.
• Significance: It lies in the path of the Chushul approach, one of the main approaches that China can use for an offensive into Indian-held territory.
• Governance: It is overlooked by the Finger Area – a set of eight cliffs extending out of the Sirijap range (on the northern bank of Lake).
  • India claims that the LAC is coterminous with Finger 8 but it physically controls area only upto Finger 4.
  • Chinese border posts are at Finger 8, while it believes that the LAC passes through Finger 2.