When a top legal eagle does sabre rattling for India, he’s expected to be super sure. This column is devoted to how an overexcited Kapil Sibal, driven purely by a courtier’s instinct, has jumped into a royal mess in his battle with Microsoft, Google, Facebook and Yahoo!

But first a point on Politics 101. Sibal’s department of information technology has called representatives of the Big 4 and an Indian media major six times since August 2011. On three occasions, the last one being a meeting on December 5 (and the key demand, “I-don’t-care-how, but do pre-screening, to-the-best-of-your-capability”) the minister chose to lead the charge. Before coming to his main grouse, a derogatory sketch of Sonia Gandhi, this including waving a sketch of Prophet Muhammad, threatening to go public with it! Was this needed?

Also see: Net loss: Kapil Sibal declares war on social media

Leading the charge directly has gotten him ensnared in face-to-face acrimony, a situation that may have helped him win a few brownie points with 10 Janpath, but it has left his government at a point of no return. One can forgive Sibal for seeking a technical impossibility of pre-screening, or even imaging that he has the muscle of his opposite number in China, but what of the following legal inconsistencies:

(1) In the penultimate meeting with the G-4 on November 29, Sibal circulated a draft guideline on what he expected these companies to comply with. Despite the gun pointed at them and a top Indian minister like Sibal awaiting their immediate compliance, the conditions being rammed were so bizarre that the companies took the courage to reject them on the minister’s face. For example, one of Sibal’s clauses was that those in the room will conform to Indian law. Does a self-respecting country even need to ask such a question? India did. And now that the question had been asked, it got the counter that is obvious enough: “Yes, our Indian entities are duty-bound to conform thus (but since you ask, the parent companies, don’t have to).”

Sibal obviously didn’t know what to say. So, he launched into a tangent. “You people get the US embassy to call up my officers. You are revealing the contents of our discussion to the US embassy. Do you think India will ever accept US pressure on this matter?” he growled.

This set him up for a two-line primer from his audience on the exhaustive Mutual Legal Assistance Treaty operative between the two countries since 2005 (text: www.tinyurl.com/mlattext). The US, in fact, claims that there’s a 24-hour helpdesk at their end devoted to India. Here the identified authority on the Indian side, a joint secretary in the ministry of home affairs, can move a request for details of a troublemaker’s IP, and get a reply in three days. The only trouble is that our babus need familiarity with prescribed documentation and, needless to say, this option is much less sexy than issuing a demarche to the local country head and twisting her arm for getting the details from head office!

By the way, there’s an emergency clause which when invoked can get results much faster. But surely, the concern that Sibal had was an unflattering sketch of Sonia Gandhi. That couldn’t have qualified for a case under MLAT. This serves as an important question: did/would Sonia actually ask him to do such a thing? Most probably not, because her son Rahul is familiar with how to handle nuisance blogging, having won a case with the least media brouhaha or help from Sibal’s boys. Perhaps, Sibal is being more loyal than the king, and how!

(2) That lacunae apart, by limiting their intervention to just four-five players, Sibal’s boys, notably a particularly close aide called Gulshan Rai, going by the verbose title of Director General, Indian Computer Emergency Response Team and GC Cyber Laws Group Formulation and Enforcement Division, created for India a legally weak situation. What happens to the rest, Sibal could be asked in court by those being forced to sign the draft guidelines.

(3) One of the conditions in Sibal’s trial balloon was that an(y) officer of the government can seek pre-screening/blockage of offending content. This ended up being a self goal. Section 79(3)(b) of the Information Technology Act, 2000, which deals with exemptions available to intermediaries (like the ones that were summoned by Sibal), is already very fuzzy. It talks of how the intermediary has to expeditiously remove or disable access to material without vitiating the evidence in any manner, but that’s subject to either receiving actual knowledge or “on being notified by the appropriate Government or its agency”. Believe it or not, “the appropriate government or its agency,” has not been identified all this while in the subordinate legislation. All that the notification of April 11, 2011 nebulously states is, “the intermediary shall provide information to government agencies who are lawfully authorized for investigative, protective, cyber security activity”.  Clearly, Sibal and Rai were taking a long shot hoping to give this ill-defined power to all and sundry. And even if a sub-inspector was authorised, are we better off having a rotating, multidisciplinary body which understands softer dimensions of social oversight?

(4) Amidst a longer list of legal inconsistencies, Sibal is on collision course with legislative intent itself (behind the IT Act). Under Rule 7 of the Intermediary Guidelines, he is endorsing empowerment of his shenanigans more than what Parliament stipulated. Again, Rules framed under Section 43A are so much in excess of the Parliamentary mandate on that provision. Shorn of legalese, this provision merely requires a body corporate that deals with sensitive and personal data and information not to be negligent in implementing reasonable security practices and procedures and provides that if a body corporate is so negligent and thereby causes wrongful harm to someone the wronged person can sue the body corporate for damages. Under the Rules, apart from the definition of sensitive and personal information and the elaboration on reasonable security practices and procedures, every other provision is de hors the substantive provision and prescribes privacy related platitudes for which the right place for discussion is the Privacy Bill.

Sadly on the content issue, despite being a legal notable, Sibal is aiming the gun at the easy target, the intermediary, whereas the right place to fire is individual culprits. The minister needs to ask how Rahul Gandhi handled his case.

Pre-screening isn’t just technically feasible. A demand for it assumes that Sibal expects machines to go beyond sorting out offensive words and skin tones. They should be able to scan satire, and now!