In late September 2015, the Indian government published an ill-conceived and poorly drafted national encryption policy which would have had severely detrimental impacts on privacy, freedom of speech, national security, foreign investment, and the regular business of the telecommunications and Internet industry in India. After public uproar and international ridicule, the policy was withdrawn on the eve of Prime Minister Modi’s visit to Silicon Valley to invite investment in his Digital India project. This post simply breaks down encryption and examines the motives and implications of the policy. Click the title to read more.
Category Archives: Criminal Law and Procedure
[Summary] Following the historic striking down of section 66A of the IT Act, there are reports the government is looking to introduce new provisions to censor the Internet. Free speech observers are not giving enough attention to the many clues from India’s past governmental policy of free speech that suggests a trend of censorship founded upon concerns of governance, nation-building, community honour, and public order. This free speech policy has interacted with colonial-era notions of indigenous custom to create a narrative that pits individual rights against community interests, modern law against local sensibilities, courts against government. The Rangeela Rasool affair (1927), the First Press Commission (1954), and the Second Press Commission (1982) are seminal moments in the evolution of this policy that indicate the contours of future government action. Past experience shows that strong governments invariably impede free speech. Looking ahead, section 66A’s replacement, which may not be a new provision but could be something more covert, will almost certainly act on this narrative and continue the government’s free speech policy.
[Abstract] Last week, the Supreme Court of India delivered its judgment in the case of Anvar v. Basheer to declare new law in respect of the evidentiary admissibility of electronic records. Before the enactment of the IT Act, electronic evidence was offered in the same manner as secondary evidence of documents. In 2000, the IT Act created a special evidentiary procedure for electronic records. But, in the Parliament Attacks case, the Supreme Court ignored this special procedure and continued to admit flawed wiretap transcripts as if they were simple documents, this upheld a death penalty conviction. Subsequently, this wrong, but simpler, evidence standard has enabled the admission of leaked wiretap tapes of corruption and other iniquity to promote transparency. The Anvar case returns the law to its correct interpretation but will discourage public interest disclosures.