This does not look like 66A through the back door

 

As reported last week by the Indian Express, the Government of India is reportedly considering amending the Indian Penal Code and Code of Criminal Procedure, to criminalize hate speech online. The Internet Freedom Foundation (IFF), a young NGO has been quick to dub the proposed amendment as an attempt to bring back Section 66A and has leaked a copy of what it claims is a report of the government committee that has made the recommendation to the Ministry of Home Affairs. The committee headed by T.K. Viswanathan, former secretary general of Lok Sabha, was setup by the government after the Supreme Court’s decision in Shreya Singhal v. Union of India, where a bench of the SC struck down Section 66A of the Information Technology Act, 2001 for imposing an unreasonable restriction on the fundamental right to free speech guaranteed by Article 19(1)(a) of the Constitution and also for being unconstitutionally vague. The Indian Express in an editorial has termed the government’s new effort a “back door” attempt to introduce Section 66A.

 

The proposed provisions are  limited to speech online

Presuming that the copy leaked by IFF is genuine, it would be inaccurate to term the insertion of Sections 153C and 505A into the Indian Penal Code (IPC) as a revised Section 66A. Both provisions as described in the document leaked by the IFF are based on Report No. 267 of the Law Commission of India which dealt with hate speech per se without specifically limiting it to speech over the internet. The Law Commission has proposed to the government the insertion of Section 153C to punish anybody who incited hatred against any person on grounds of “of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe” and also Section 505A to punish any “person who causes fear, alarm, or provocation of violence in certain cases” on grounds of “religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe”.

The Law Commission had justified the need for these new provisions on the grounds that existing provisions in the law only penalized hate speech that created enmity between two groups and not speech that spewed hate only against one group or community. The Commission had stated in relevant part:

Interpreting sections 153A and 505(2) of IPC in Bilal Ahmed Kaloo v. State of AP, the Court held that the common feature in both sections is that it makes promotion of feeling of enmity, hatred or ill-will between different religious or racial or language or regional groups or castes and communities and doing acts prejudicial to maintenance of harmony an offence. It is necessary that at least two such groups or communities should be involved to attract this provision. Merely hurting the feelings of one community or group without any reference to another community or group cannot attract either of the two sections.

The Law Commission of India thereafter proposed Section 153C to penalize hate speech targeting people of a certain religion, race, gender identity, sexual orientation etc. and Section 505A that would penalize any speech that causes “fear or alarm” or which is intended to “provoke the use of unlawful violence” amongst a certain community, sex, gender, sexual orientation etc. While the first provision is understandable, the reasoning for Section 505(2) is not very clear from a reading of the report although it appears to have been inspired by the crisis a few years ago in Bangalore where students of the North-Eastern states studying in the city panicked and fled the city in huge numbers because of certain internet inspired rumours of violence against their community. Both provisions as drafted by the Law Commission apply to all speech and not merely speech on the internet.

The report leaked by IFF borrows on the Law Commission’s report but alters the language of the provision to alter certain elements of the offence and also to limit it only to speech made through a particular mode of communication as defined in the provision. The Law Commission’s provision would have applied to hate speech regardless of whether any means of communication was used. It is not clear why the govt’s expert committee felt the need to restrict these provisions only to speech made through the defined means of communications.

The suitability and legality of the proposed Section 153C

The proposed Section 153C (as found in the document leaked by IFF) reads as follows:

153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe, uses any means of communication to -

(a) gravely threaten any person or group of persons with the intention to cause fear of injury or alarm; or

(b) advocate hatred towards any person or group of persons that causes, or is likely to cause, incitement to commit an offence

shall be punishable with imprisonment of either description for a term which may extend to two years or a fine up to Rs 5000, or with both.

Explanation: In this section, (a) "means of communication" shall include any words either spoken or written, signs, visible representations, information, audio, video or combination of both transmitted, retransmitted or sent through any telecommunication service, communication device or computer resource; (b) "telecommunication service" shall have the meaning assigned to it in clause (k) of subsection (1) of section 2 of the Telecom Regulatory Authority of India Act, 1997; (c) "communication device" shall have the meaning assigned to it in clause (k) of subsection (1) of section 2 of the Information Technology Act 2000; (d) "computer resource" shall have the meaning assigned to in clause (ha) of subsection (1) of section 2 of the Information Technology Act, 2000.

Regarding the desirability of a provision like S. 153C, I think it is fair to accept the fact that India needs a hate speech law. As of now, the only hate speech law we have is The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which criminalises speech that “promotes or attempts to promote feelings of enmity, hatred or ill-will against members of the Scheduled Castes or the Scheduled Tribes”.

 

It is therefore necessary to discuss this proposal to incorporate Section 153C into the law rather than diss it as a new S. 66A. In fact, it is (pleasantly) surprising to see an expert committee of the present ruling establishment recommending the criminalization of even homophobic speech despite male homosexuality being classified as a crime under Section 377 of the Indian Penal Code (IPC). I am even more surprised by this recommendation because the current Home Minister Rajnath Singh publicly stated a few years ago that the BJP will not support unnatural homosexuality.

On the issue of legality, I think the proposed Section 153C is sufficiently protective of free speech. The normal test for reasonableness of restrictions on free speech is to examine whether the provision is covered by the restrictions laid down in Article 19(2) of the Constitution. This provision allows Parliament to “impose reasonable restrictions in the interest of ‘sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence”.  

Given the phrasing of Section 153C, it is quite clear that the provision will apply only when the speech in question is likely to incite an offence or threaten public order. The thresholds for applying the provision are clearly articulated. The first threshold is a grave threat made with the intention to cause injury or alarm to a certain class of persons because of their religion etc. The second, alternate, threshold for invoking the law is if the speech advocates hatred that is likely to result in an incitement of an offence against a class of person based on their religion etc.   

On the issue of whether the phrase can be struck down on the grounds of vagueness, unlike Section 66A all the phrases used in the proposed S. 153C, such as “fear”, “injury”, “alarm”, “group of persons”, “incite” are relatively frequent phrases that are found through the various provisions of the Indian Penal Code.

In fact, one could argue that for a law meant to protect hate speech, S. 153C does not go far enough because it requires the incitement or injury or alarm before an offence is made out under the provision. A hate speech law should ideally punish a person for merely uttering certain phrases regardless of whether it results in an injury. For example, under the SC/ST Act referred to above the mere utterance of certain phrases can result in a conviction if such words cause “enmity, hatred or ill-will” against the members of such castes or tribes. There is no requirement to prove harm or injury being caused to such persons.

The suitability and legality of the proposed Section 505A

 The proposed S. 505A (as found in the document leaked by IFF) reads as follows:

505 A. (1). Whoever, intentionally, on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe, uses any means of communication to communicate-

(a) highly disparaging, indecent, abusive, inflammatory, false' or grossly offensive information with the intention to cause fear of injury or alarm; or

(b) gravely threatening or derogatory information with the intent to provoke the use of unlawful violence, against any person or group of persons, shall be punished with imprisonment for a term which may extend to one year and with fine up to Rs 5000, or both.

Explanation: In this section, (a) "means of communication" shall include any words either spoken or written, signs, visible representations, information, audio, video or combination of both transmitted, retransmitted or sent through any telecommunication service, communication device or computer resource; (b) "telecommunication service" shall have the meaning assigned to it in clause (k) of subsection (1) of section 2 of the Telecom Regulatory Authority of India Act, 1997; (c) "communication device" shall have the meaning assigned to it in clause (k) of subsection (1) of section 2 of the Information Technology Act 2000; (d) "computer resource" shall have the meaning assigned to in clause (ha) of subsection (1) of section 2 of the Information Technology Act, 2000."

This provision as drafted by the govt. committee is significantly different from the Law Commission’s recommendation.

The phraseology of this provision has raised some red flags because one of the phrases in the provision – ‘grossly offensive’ was also used in Section 66A and was one of the phrases that was found to be contributing to the vagueness of S. 66A by the SC in the Shreya Singhal case.

 

The report leaked by the IFF indicates that the government was aware of the challenges posed by the SC judgment. In pertinent part, the report states:

In Shreya Singhal, the Court found that not defining terms such as “grossly offensive” or “menacing” fell foul of Article 19(1)(a), due to the wide scope for discretion it allowed and the consequential chilling effect on freedom of speech. Accordingly, in the draft formulations of Sections 153C and 505A, only online speech that relates to religion, race, caste, community, sex, gender, place of birth, residence and language falls within the purview of the proposed section.

In addition to the explanation provided by the committee above, it should be pointed out that S. 505A also requires the prosecution to prove an intention to cause “fear of injury or alarm” to a group of persons simply because of their religion etc. Thus, unlike Section 66A, the proposed S. 505A does lay out clear signposts on how and when a person can be booked under the provision i.e. there should be an intention to cause fear of injury or alarm.

 

Procedural fairness & safeguards

One of the important issues that is often missed during the Indian debate on free speech is the efficacy or otherwise of procedural safeguards. The standard line of argument is to demand the deletion of all provisions such as S. 153A or S. 295A on the grounds that they are misused by the police without really asking whether procedural safeguards could save the law from being abused. Some such safeguards are inherent in the Code of Criminal Procedure, 1973 – the most important safeguard being restrictions imposed on the police to arrest people or initiate investigations in certain cases without the prior permission of the judiciary. Even when the police arrest a person in a cognizable offence, the law requires the police to produce a person before a judicial magistrate within 24 hours and it is the magistrate who can decide whether to continue the remand or release the person. All too often in India, judicial magistrates do not enough to hold the police accountable.

 

Whether or not the police can begin investigation and arrest people on their own depends on whether the offence is cognizable or non-cognizable. The first allows the police to arrest without a warrant from a court, while the latter requires the filing of a complaint before a Judicial Magistrate and only if the Magistrate thinks the complaint makes out a criminal offence, will the court take cognizance of the offence and summon the accused. The list of offences and whether they are cognizable by the police is laid out in Schedule I to the Cr.P.C. For offences that are not mentioned in this schedule, the Schedule classifies the offence per the years of punishment prescribed in the statute. For offences where term of imprisonment is less than 3 years, the police cannot take cognizance unless a judicial magistrate thinks the case is fit for investigation.  

In case of the proposed Section 153C and 505A, since the proposed punishment is less than 3 years, the police will necessarily require a judicial magistrate to take cognizance of the offence before launching an investigation or arresting the accused persons. However, it should be pointed out that the Law Commission had proposed making Section 153C a cognizable and non-bailable offence thereby giving the police powers to arrest without a warrant. The document leaked by IFF is silent on this issue.

If the government is making this provision cognizable it should be a reason to worry because notwithstanding the high threshold to establish guilt, the mere fact that it allows the police to arrest a person without a warrant opens the floodgates to abuse. Very often the local police inspector is hardly concerned with securing a conviction. The short-term goal in most cases is to imprison people to satisfy a larger goal without really bothering to take the case to prosecution.

For example, the two Mumbai girls arrested for the Facebook post on Bal Thackeray’s death, were arrested by the police to merely placate the raging Shiv Sena mob. It is unlikely the Mumbai Police was even interested in prosecuting the case. By making S. 153C cognizable, the police will be given powers similar to S. 66A. The mere requirement that a Magistrate apply his minds to the fact and write out a reasoned summoning order is a safeguard enough to prevent some, not all, abuse of the law.