Last week, former finance and home minister and senior Congress leader Palaniappan Chidambaram was under attack from one of his own senior colleagues in the Congress party. Former law minister Hans Raj Bharadwaj squarely attacked him for being responsible and the force behind the draconian section 66A of the Information Technology Act which was quashed by the Supreme Court recently??. Bharadwaj's contention was that Chidambaram, as home minister? ?was behind the insertion of ?S?ection 66A into the IT Act and was responsible for propagating the controversial bill. "Chidambaram has been finance and home minister and has the best blessings of the party leadership…P Chidambaram should be asked why he brought in the bill, now he is saying it was bad drafting," Bharadwaj told a news agency ?recently?.
The controversial section in the IT Act provided for arrests of people who sent "offensive" messages through a computer or any other communication device like a mobile phone or a tablet. However, the term "offensive" was not clearly defined and was open to wide interpretations. It was quashed by the Supreme Court recently as vague and unconstitutional. Says lawyer Apar Gupta, "Section 66 failed to pass the substantive test as it authorised the police to arrest anyone for saying anything on the Internet." While it provided for arrests if something said on the Internet was annoying, inconvenient or grossly harmful, there was no legal ingredient as to what constituted these offences. ?"?That is why we saw that arrests were made in an arbitrary manner"?,? he says.
The section brought in issues over fundamental right to freedom of speech and expression. It also started a debate over P. Chidambaram's role in muffling people's voices over the Internet and brought into play the role played by him, as the home minister, in infringing upon people's right to freedom of speech and expression. Overall, it highlighted the illiberal stand that the state took against free speech.
This is not the first time Chidambaram has been in the news for legislation that is not just illiberal but aims at blocking free speech. In 1988, during Rajiv Gandhi's tenure as PM, Chidambaram was the minister of state for home when the controversial Anti Defamation Bill was brought in, which was, once again, a serious attack on the right to freedom of speech and was an instrument to kill free speech. The bill was unanimously opposed to by the media?, which forced the government to withdraw it.? ?At that time, the Bofors issue was unfolding and the media had made one of its most scathing attacks on the establishment and the government had sought to muffle free speech and press freedom. Says senior journalist Inder Malhotra, "They had drafted a bill that made it impossible to report anything on the Bofors issue and wanted to use the law to end the reporting and investigation on the issue. But the entire press had gone up in arms against the government over this and protest marches were held in Delhi and Mumbai against this forcing the government to pull it back."
Similarly, Section 66A came around the time that the UPA government was seeing the first signs of the 2G scam and it flourished when the 2G and Commonwealth Games scams were in full play. ?Says Sarma, "These laws and bills denote the continuing struggle between individual rights versus what a few individuals in the political executive perceive as "societal good". While the issue of regulating individual rights to protect the overall societal interests can be justified as a part of the "reasonable restrictions" on fundamental rights, provided in the Constitution, the question that arises is as to who will decide what is good for the society."
While Section 66A has been misused by many political leaders and parties against people who have dared to express their difference over political following—the arrest of Jadavpur University professor Ambikesh Mahapatra for forwarding cartoons on Trinamool Congress chief Mamata Banerjee is an example—what is more interesting is that both Chidambaram and his son Karti have a history ?with ?this section.? ?Following a complaint from Karti, a Puducherry based businessman Ravi Srinivasan was arrested under Section 66A of the IT Act a few years ago for posting messages on Twitter that targeted him and which Karti considered offensive. The twitter messages reportedly talked about Karti's wealth in comparison to Sonia Gandhi's son-in-law Robert Vadra. Srinivasan was later released on bail.
Chidambaram's support for ?Section 66A was also visible when, in 2012, following the arrest of two people who had allegedly harassed singer Chinmayi Sripada, he had tweeted about it and said "…food for thought for you know who! :)"
What is even more surprising is that Chidambaram has now embraced the Supreme Court verdict and has said that the section was badly drafted and that it was open to misuse. "I welcome the judgment of Supreme Court holding that Section 66A of the IT Act is unconstitutional. The section was poorly drafted and was vulnerable. It was capable of being misused. In fact, it was misused," he said in a statement.
Says political commentator Kalyani Shankar, "Whoever is in power, don't want any criticism and so they want to control the media. So far they have not succeeded. But with politicians, there is no consistency of stand. They say something when in power to protect their turf and the opposite when they are out of it."
What is questionable here is that how as a seasoned lawyer, Chidambaram allowed a badly drafted legislation, that was unconstitutional,?to be passed? ?and how he, as a custodian of public interest and fundamental rights, had willingly supported a legislation that was not only illiberal but was a serious infringement of people's freedom of speech even though similar attempts had been shot down in earlier regimes. Says former finance secretary E.A.S. Sarma. "These days, the political executive has no compunction in arrogating to itself the authority to decide what is good and what is bad for the society, without allowing a public debate in such matters. It may be Chidambaram, or Bharadwaj, or Modi but the issue is whether individuals can bypass public inputs."
This is surprising as the bill on S?ection 66A was passed by the Cabinet and the ?P???arliament in 2008 without any debate, discussion or scrutiny and Chidambaram was a prominent member of the Cabinet. While it is obvious that the bill would have gone through the Cabinet and Chidambaram and former minister Kapil Sibal both lawyers and senior Cabinet members would have gone through it, both of them overlooked its drafting and put their support behind it.
Says Rajya Sabha member of parliament and tech entrepreneur Rajeev Chandrasekhar, "The issue has been brought to the attention of the ministers and the PM several times but nobody cared about it. Chidambaram cannot say that the drafting was wrong. It is the duty of every Cabinet minister to see the law and correct it if it was a weak draft. Being a lawyer he should have looked into it.
?Interestingly, after being part of an illiberal stance as far as Section 66A was concerned, Chidambaram is now propagating against the state's illiberal attitude, particularly in the context of the government banning beef in certain states. Says Chandrasekhar, "In power, you are sensitive to criticism. So you block and suppress free speech. Only when you are out of power, you start enjoying the joys of free speech."
In a signed article in Financial Express, Chidambaram wrote, "The rising tide of illiberalism and intolerance is frightening. Look at what is happening around us: ban the book (Wendy Doniger), ban the documentary (India's Daughter), ban beef (in Maharashtra). Attack the writer (Puliyur Murugesan), lynch the rape accused (in Nagaland), kill the rationalist (Pansare). Return to your forefather's religion (ghar vapsi), vandalise the church (in Delhi), add the Gita to the syllabus (in Haryana)…I fear that illiberalism and intolerance are on the rise because the zealots believe that the State is on their side and they can silence the voice of the liberal or the dissenter. "
Coming from a person who has been behind the draconian section 66A which restricts human speech and expression, it is quite surprising.
