Re: Evolution of cybercrime laws in Tamil nadu

On 14 August 2014 10:46, Vickram Crishna <v1clist-/[email protected]> wrote:

> Incidentally, the powers ascribed to state and center are fairly well
> defined, and telecom, data services, wireless etc are central matters. I
> don't think states have the power to yank in persons for actions that are
> governed by a different set of laws, central laws, under flimsy parochial
> perceptions. Am I right?
>

Well, "Preventive detention for reasons connected with the security of a
State and the maintenance of public order" is on the Concurrent List, and
'public order' leads the State List.

Video piracy, for instance, is already covered under various Goondas Acts,
and just because one uses torrents instead of ripping from a DVD doesn't
substantially alter the nature of the crime.

The 7th Schedule (Article 246) is a fairly progressive list of central,
state and concurrent subjects -- progressive for 1860 or whenever it was
framed -- but I don't think they had the internet in mind when they were
fretting about posts and telegraphs (not to mention 'inns and inn-keepers',
'toilet preparations containing alcohol' and 'vagrancy; nomadic and
migratory tribes'. Also treasure troves, intoxicating liquors and
'amusements').

The Goondas Act was first extended to video piracy in Tamil Nadu (where
political parties have a substantial stake in the movie industry), and it
must have seemed logical to include 'digital offenders' who download stuff
illegally. Maybe someone got carried away and decided to add, "or commits
any of the offences specified under section 67, 68, 69, 70, 71, 72, 73, 74
and 75 of the I.T. Act 2000" (Karnataka Goondas Act amendment, 2014).

Apparently, Section 66A is not (yet) included in offences under the
Karnataka Prevention of Dangerous Activities of Acid Attackers,
Bootleggers, Depradator of Environment, Digital Offenders, Drug Offenders,
Gamblers, Goondas, Immoral Traffic Offenders, Land Grabbers, Money
Launderers, Sexual Predators and Video or Audio Pirates (all recognizable
villains from the Marvel Universe) Act.

But Vickram's point that electronic communications is a central subject is
part of the problem, as the states perceive the problem. Threats to 'Public
Order', whatever that may mean, play out in states and districts, not
'centrally'. By the time MoCIT and MIB get their thumbs out, the
'substantive evil' is already done, and Amma is not the one to hang around
waiting for MIB to issue a strongly worded advisory.

(On the subject of threats to 'Public Order' as a legitimate curb on free
speech, do read the Minutes of Dissent to the First Amendment, which
brought this wretched clause into Article 19. Great defenders of free
speech like Nehru, Patel & Co argued that it is wrong to think that 'Public
Order' has "any precise relation to laws relating to freedom of speech and
expression" while Syama Prasad Mookerji and a couple of Left wingers
pointed out the dangers of vague formulations like 'public order', noting
that ""Public Order" should be definitely subject to the "clear and present
danger test", that is "the substantive evil must be extremely serious and
the degree of imminence extremely high".

And this, unfortunately, is the essence of the amended Goondas Act: that
putting some nerd in the jug is imperative as the degree of imminence is
extremely high that said nerd might, unjugged, post "material which is
lascivious or appeals to the prurient interest or if its effect is such as
to tend to deprave and corrupt persons who are likely, having regard to all
relevant circumstances, to read, see or hear the matter contained or
embodied in it."

Sajan


On 14 August 2014 10:46, Vickram Crishna <v1clist-/[email protected]> wrote:

> 'Need', or 'have'? The lawbooks are full of antediluvian laws, a matter I
> understand was very much part of the deliberations of the Constitutional
> Assembly, correct me if I'm mistaken, as among the things a democratically
> appointed Parliament would redefine or remove. So it took some 40 years for
> this august body to decide that some persons hailing from some tribes in
> some parts of India were not, after all, criminals by virtue of their
> birth, for instance.  I'm sure they had other terribly pressing matters on
> the mind in the interim, and still have.
>
> Is it any wonder that it does not act to halt cowboy actions by some
> police officers somewhere, doubtless in honest reliance upon their own
> judgment of right and wrong, but which are then flaunted happily by lesser
> beings puffed up with their position? Just because a state has some rule or
> even law, does not mean that the people of the state have knowingly decided
> this is suitable for themselves and is something they wish to have in
> place, and furthermore, acted upon in this fashion. But I don't think we
> actually have such a benighted state anywhere in this country.
>
> Incidentally, the powers ascribed to state and center are fairly well
> defined, and telecom, data services, wireless etc are central matters. I
> don't think states have the power to yank in persons for actions that are
> governed by a different set of laws, central laws, under flimsy parochial
> perceptions. Am I right?
>
> Or am I a goonda for asking?
>
> Vickram
> http://communicall.wordpress.com
> http://vvcrishna.wordpress.com
>
>
>

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