Government is hiding behind hate speech to bring back Section 66A
My foray into law really started after seeing the two girls who were arrested for posting something on Facebook. I challenged Section 66A of the Information Technology Act, 2000 as it was violative of our fundamental right to free speech and expression. The rampant misuse of Section 66A cast not only an alarming threat to free speech but also had a chilling effect on it.
I filed the petition in December 2013. The Supreme Court in its judgment in 2015 unanimously struck down Section 66A. In the period between filing and the pronouncement of the judgment, there were multiple arrests happening all over the country under Section 66A. It was being added onto FIRs and complaints blindly when the authorities were confronted with anything on a computer/mobile phone/on the internet. Unfortunately and shockingly, even after Section 66A was struck down, there were reports of arrests still taking place under Section 66A.
In the two years since the judgment, there have been rumours now and again of the government re-introducing a Section 66A 2.0, a stronger, more restrictive version. The current government has a particularly tumultuous relationship with free speech.
Back in March 2017, the Law Commission in its 276th report on hate speech made certain recommendations which were in the form of the Criminal Laws (Amendment) Bill, 2017, whereby Section 153C and 505A are being sought to be inserted into the Indian Penal Code to introduce stringent provisions, specifying punishment, to deal with cases of hate speech, hatred and incitement to an offence.
An expert committee, constituted by the Centre, headed by former Law Secretary and Lok Sabha Secretary General TK Viswanathan, submitted its report to the Union home ministry last week. The report deals with cases of hate speech, and specifically the use of cyberspace to spread hatred and incitement. The report suggests modifying the proposed Sections 153C and 505A of the IPC, amongst the other amendments to the Criminal Procedure Code and the Information Technology Act, to deal specifically with electronic communication, including social media.
In its draft formulation, the Committee has adopted the Law Commission’s proposal subject to certain modifications to suit the aspect of "content regulation on social media or other internet platforms used for articulating and advocating harmful opinions".
Sections 153C and 505A deal with "prohibiting incitement to hatred" and "causing fear, alarm or provocation of violence in certain cases" respectively and carrying a punishment of up to two years in jail or one year in jail and/or a Rs 5000 fine.
Both Sections 153C and 505A of the IPC deal with the "limited" grounds of "religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe". Is there any subject they haven’t covered?
Further, the Sections criminalise online communications made with respect to the above-mentioned topics, with the intention to have the potential to affect "social stability" or "disturb public order". These proposed amendments are a sham, and a colourable exercise in a concerted effort undertaken by the government in yet another attempt to restrict free speech.
Merely putting adjectives in a flimsy hope of trying to appear to be specific and working around the vagueness of Section 66A of the IT Act, the Committee is trying to make the proposed amendments in essence a Section 66A.
This innocuous amendment for hate speech will result in a greater restriction on free speech, particularly dissent and advocacy. The difference between discussion and advocacy and incitement is that the former is the essence of Article 19(1) of the Constitution and the latter has to be seen as to its proximity to imminent violence.
The government is subserving its own interests by silencing its critics and not actually serving the social interest of its own people. Instead of focusing on imminent dangers on the internet like cyber bullying, which were not covered by the erstwhile Section 66A, the government is seeking solely to strengthen its position and its interests, which have completely diverged from that of its citizenry.
By making the stealthy reintroduction of Section 66A a layer cake, the government in an effort to sugarcoat the reality, will forfeit any and all respect from its citizens.
Also read - Muslim boy jailed in UP for Facebook post shows why Section 66A must never come back