New Delhi, Feb. 3: The Centre today hinted at amending the controversial Section 66A of the Information Technology Act that has often been misused by governments to harass critics.
But the Centre insisted that the law in its current form did not curtail the fundamental right to free speech and expression and brought in the national security factor to push for safeguards.
In the process, the government revealed that the computers of the external affairs ministry had been hacked.
Additional solicitor-general Tushar Mehta listed before a bench of Justices J. Chelameshwar and R.F. Nariman several instances where hackers had accessed the email accounts of top officials of the ministry. He said the accessed information was shared with two "not-so-friendly neighbouring countries."
"Your Lordships, the government has constituted a committee to examine the IT Act and bring a new law or a legal framework to tackle cyber crime. A roadmap would be prepared soon after, studying the aberrations and changed situations in Indian and international laws. The committee will suggest measures and safeguards," the additional solicitor-general told the court during the day-long inconclusive hearing.
Section 66A was initially challenged by a student, Shreya Singhal, in 2012 after two teenaged girls were arrested by Maharashtra police for alleged objectionable remarks on Shiv Sena leader Bal Thackeray.
Several NGOs and civil liberty organisations had filed separate petitions challenging the impugned act. The case assumed significance also against the backdrop of the arrest of Jadavpur University professor Ambikesh Mahapatra for forwarding a cartoon lampooning chief minister Mamata Banerjee.
But Mehta said the provision was not intended at targeting individuals making political statements but meant to rein in organised groups and others who act against national security.
He said that recently the external affairs ministry had received a mail purportedly from the US. "But the cyber criminal tried to show that the mail originated from the office of the Indian embassy located in China. The mail was sent to senior officers of MEA, including the top brass.
"The purpose of the mail was to infect, steal and monitor the information residing in the computer systems of the senior officers of the MEA. The information was shared with two of our neighbouring countries with which we have not friendly relations and not-so-friendly relations," Mehta told the bench.
The government lawyer told the court that he could not divulge more details at this juncture as the matter was under investigation.
He said "ransomware" mails were also being sent by hackers in the name of the Reserve Bank of India or the income tax department refunds section. "Ransomware" is malicious software designed to block access to a computer system until an amount is paid.
Mehta said the modus operandi of the hackers was to send mails in the name of the RBI or the tax department to thousands of email addresses.
"The moment the recipient and unsuspecting net user accesses the mail, all his data in the computer system gets encrypted. The recipient, thereafter, will receive another mail demanding a huge amount to decrypt the data and permit the user to access the data residing in his computer. If the ransom is not paid, the victim's entire data will be destroyed.
"The provision of 66A and related sub-sections were meant to tackle mainly such fraud and mischief," he said.
During the hearing, the bench told Mehta: "We have to judge the statute as it stands before us. You tell us what it means by the expressions 'grossly offensive' and 'nuisance' in Section 66A.
"Even a legally trained mind takes time to understand these terms. Over here, a policeman books a person for a criminal act. Nobody knows how many years a judge would take to apply his mind. Till then, the man would remain in jail," the bench observed.
Section 66A covers information, sent through a computer or other communication devices, that is "grossly offensive or has menacing character" or causes "annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will". Those found guilty can be sent to jail for up to three years and fined.
Mehta said: "If someone exercises freedom of speech which puts someone else to annoyance, inconvenience or offends someone, it's not a criminal offence. But I personally feel the law should be made non-cognisable in which an aggrieved person first approaches the court for filing a complaint."
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