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Prescription post Section 66A: ‘Change law to punish hate speech online’

Brought into the statute by the UPA-II in 2009, Section 66A had empowered the police to make arrests over what the policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing”.

Written by Seema Chishti | New Delhi |
Updated: October 6, 2017 6:57:50 am
 Section 66A, IT Act 2015, Hate Speech, Freedom of speech, Cybercrime, Hate speech law, IPC hate speech, India news, Indian Express “We decided there was no need to re-introduce Section 66A, but we need to strengthen the Indian Penal Code instead”, said Committee member Dr S Sivakumar, who is also a member of the Law Commission. (Photo: Reuters)

An expert committee, constituted by the Centre after the Supreme Court struck down the controversial Section 66A of the Information Technology Act in 2015, has recommended that the Indian Penal Code, Code of Criminal Procedure and the IT Act be amended to introduce stringent provisions, specifying punishment, to deal with cases of hate speech and use of cyberspace to spread hatred and incitement.

The committee, headed by former Law Secretary and Lok Sabha Secretary General T K Viswanathan, submitted its report to the Union Home Ministry last week. Committee member Dr S Sivakumar, who is also a member of the Law Commission, told The Indian Express: “We decided there was no need to re-introduce Section 66A, but we need to strengthen the Indian Penal Code instead.” The committee’s recommendations include:

Prohibiting incitement to hatred

Amend IPC section 153 C to include in communication “spoken or written words, signs, visible representation, information, audio, video, or combination of both, transmitted, retransmitted through any telecommunication service, communication device or computer resource”.

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Punishment: Up to two years or fine of Rs 5,000 or both.

Causing fear, alarm or provocation of violence in certain cases

By amending IPC section 505 A, punishment of any person or group of persons who intentionally, on grounds of religion, race, caste or community, gender, sexual orientation, place of birth, residence, language, disability or tribe, uses any means of communication to communicate.

Punishment: Up to a year, or Rs 5000 or both.

Amendment to Code of Criminal Procedure, 1973

Add sections 25 B and 25 C — creating the post of a State Cyber Crime Coordinator and District Cyber Crime Cell, respectively.

Amendment to IT Act, 2000

Amendment to Section 78 allows a police officer not below the rank of Sub-Inspector to investigate any offence under this Act (report specifies young police officers, directly recruited as SIs, better equipped and trained to investigate cyber offences)

The expert committee was constituted after the Supreme Court struck down Section 66A of the IT Act. Brought into the statute by the UPA-II in 2009, Section 66A had empowered the police to make arrests over what the policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc. It prescribed the punishment for sending messages through computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.

Over the years, police invoked this provision to arrest a variety of people, including a cartoonist, professor, students and industrialists, more particularly when they posted contents against politicians. Many of these instances were cited in a batch of petitions filed in the court for getting the provision quashed.

On March 24, 2015, the bench of Justices Rohinton F Nariman and J Chelameswar struck down the “open-ended and unconstitutionally vague” Section 66A, saying nothing short of quashing this law “in its entirety” could suffice since it “arbitrarily, excessively and disproportionately” invaded the right of free speech, right to dissent, right to know, and had a “chilling effect” on the constitutional mandates.

“As Section 66A severely curtails information that may be sent on the Internet based on whether it is grossly offensive, annoying, inconvenient, etc, and being unrelated to any of the subject matters under Article 19(2) must, therefore, fall foul of Article 19(1)(a), and is declared as unconstitutional and void,” the bench ruled.

This landmark ruling came in the matter of Shreya Singhal vs Union of India. Two women of Maharashtra were arrested for expressing displeasure at a bandh called by the Shiv Sena in Mumbai after Bal Thackeray’s death in November 2012. The matter was taken up by lawyer Shreya Singhal.

The expert committee, in its report, has stated that “representatives of the Ministry of Women and Child Development stressed upon re-introducing a renovated section 66A within the IT Act, incorporating suitable changes”. But, it goes onto say, other members of the committee advocated the line that with the IT Act being “commercial in nature”, it was important for an Act invoking punishment to amend the Indian Penal Code.

In recommending specific changes in Sections 153 (C) and 505 (A), the committee said only that speech should be accounted as relevant which relates to “religion, race, caste, community, sex, gender, place of birth, residence and language.” The committee argues that online speech would be criminalised “only both, when it advocates hatred and causes the incitement of an offence”.

The recommendations cover online hate speech and “re-sending (or re-tweeting/sharing)” of communication and raise questions if it is Section 66A in another form.

Another member of the committee, Navjeet Wasan, a retired IPS officer and former Director General of the Bureau of Police Research and Development, said: “After Section 66A was struck down by the Supreme Court, we were concerned that while liberty is non-negotiable, what about those denigrating others through social media? Persons in towns, girls and boys experiencing harassment through online speech and messages on social media did not know what to do and how to protect themselves. We hope to be able to provide a framework of the system that would help taking on this crime and help them.”

Sources close to the committee said the expert group relied heavily on rules as amended this year in Europe, and especially the experience in the UK. The committee has also cited the need for guidelines as issued in the UK, and do not exist in India. But it has urged extreme caution while acting on speech to balance competing interests and not thwart freedom of speech generally.

Other members of the committee included Dr Gulshan Rai, National Cyber Security coordinator, and members of the Ministry of Home Affairs and legal experts. “This is not the final word. We have cited legislation from the developed world, from Australia, UK, EU etc, and we hope this begins the discussion,” Wasan said.

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