Avoiding electronic crimes or the fundamental rights?
Recently, a large hue and cry has been raised by the public at large when the outcome of “years of drafting and consultations” has been presented before the National Assembly by the Ministry of Information and Technology (MoIT), in the form a “consensus draft” of the Prevention of Electronic Crimes Bill, 2015 (hereinafter the “Bill”), after approval from National Assembly Standing Committee. The Bill is being reported as “draconian”, “wrong” and “senseless” approach taken by the MoIT that has resulted in curtailing the very basic fundamental right, the right to free speech and expression (Article 19), right against self-incrimination (Article 13), and right to dignity and privacy (Article 14) of the individuals. As a counter, the explanation provided by the MoIT is that the Bill has been drafted in a manner to make it compatible with the National Action Plan (NAP) against extremism and terrorism.
One part of the Bill outlines the substantive provisions, enforcing penalties, include inter alia, Sections 3, 4, 5, 6, 7, 8, 9, 11, and 12, while the other part lays down the procedural provisions for conducting investigation, arrest and trial of the accused persons under the Bill.
Reading the provisions of the Bill, it is imperative to note that the Bill, instead of protecting the individual freedoms, infringes upon their constitutional rights. The first and foremost contention, in this regard, is that the words used in the Bill are too vague to criminalize each and every action being conducted on the internet, from sharing a friends picture on facebook, to sending an email/ text message to someone for the first time, to making criticism against the government officials. The definitional clause of the Bill gives very broad meaning to each and every word that criminalizes these activities under the successive sevtions.
On the procedural side, it is pertinent to note that per Section 20 of the Bill, any investigative authority may acquire warrant to search and seize your property, upon oath before the Court, on existence of “reasonable grounds” (without any evidence). Under Section 21, after getting the warrant, the investigating officer may enter into the premises, acquire (copy) information, and even compel the suspect to provide him the information. Under certain provisions of the Bill, the government has also carved out the exceptions for intelligence agencies to conduct surveillance. These provisions are in contravention to the liberties guaranteed under Article 13 and 14 of the Constitution. These rights include the right against self-incrimination, that is no person, when accused, shall be compelled to become a witness against himself, and the right to privacy, that is the dignity of man and privacy of home is an inviolable right. As such, said provisions, and any other provision that curtails the fundamental rights guaranteed by the Constitution, cannot be made a law.
Another criticism, against the Bill, is that it bypasses the procedure of recording of evidence as has been set forth in the Qanon-e-Shahadat Order, 1984 (the QSO). It further says, in Section 27, that any evidence which is collected in contravention of the collection procedure, as has been given in the Bill, shall be inadmissible as such. However, it fails to comply with the provisions of the Constitution and the QSO.
The idea is not to completely back off from regulating the cyber-crimes through a legislations. However, such a law that infringes upon the individuals’ right cannot be enforced as such. This is the time that we should be able to recognize our fundamental rights, and not let our liberties be curbed in the hands of those ministers who do not even have the basic knowledge about the technology. It is our duty to take a stance, and stand against the “politically motivated” legislations made, in the name of security, against our fundamental rights.