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Undoing the protection of free speech that the 66A judgment brought

If something you say, or a message you send, leads to someone else inciting violence, you could be jailed, if a recommendation from the Law Commission to the government is accepted, and laws are amended. The recommendation of changes from the Law Commission to the CRPC (Code of Criminal Procedure) and the IPC (Indian Penal Code) will have a chilling effect on speech, and could impact the messages sent via digital. It’s worth noting that messages and videos sent via Whatsapp have been blamed for communal tension, riots, and have led to Internet shutdowns in India. The changes recommended:

1. Changes in the CRPC: for changing the phrase “Prohibiting incitement to hatred” to “Causing fear, alarm, or provocation of violence in certain cases“. This is being deemed a bailable and non-cognizable offence (which means that a police officer cannot arrest a person without a warrant), with imprisonment for one year and/ or with fine up to Rs 5000, or both”, and may be dealt with any magistrate at any level.

MediaNama’s take: If an innocuous message leads to fear or alarm, without the intent to cause fear or alarm, why should the person be punished?

If a girl asks why a particular day following the death of a politician should be a holiday in a state, and that causes alarm and violence in a state, should they be arrested? That was the 66A judgment, held exactly this unconstitutional, by clearly distinguishing between the incitement to violence and advocacy, saying “Only when discussion and advocacy reach the level of incitement, is Article 19 (2) (of the Constitution of India), which puts reasonable restrictions on freedom of speech, applicable.” Justice Nariman, while reading out that judgment, had also said that there ought to be a clear-and-present-danger test and a public disorder test, and that what may be offensive to one may not be to another.

2. Changes in the IPC:

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– Prohibiting incitement to hatred and “causing incitement to violence”: Section 153C has been recommended for insertion into the Indian Penal code, which will prevent an incitement to hatred, ”
“153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe –
(a) uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or
(b) advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”

MediaNama’s take: How will a person ever even know that something they say can cause an incitement to violence? Incitement to violence should be punishable, as per the 66A judgment, not the causation of incitement to violence. This is an unconstitutional change, and an unreasonable restriction on free speech, which will be used arbitrarily by the police to arrest people, as well have seen in the past, for political reasons.

– Causing fear, alarm, or provocation of violence in certain cases: the recommendation of the addition of the following clause in the IPC:
“505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe, uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;
(i) within the hearing or sight of a person, causing fear or alarm, or;
(ii) with the intent to provoke the use of unlawful violence, against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”.

This appears to target Whatsapp messages, and uses a term as vague as “derogatory”, which is open to interpretation. Hypothetically, if I were to say that this report from the Law Commission reads like it was written by idiots who are out to destroy freedom of expression in India, would that be classified as derogatory, and make me susceptible to prosecution?

The Law Commission, in line with the times of the state finding means of monitoring controlling behavior in the country, says in the report that “there is a need to convince and educate the public on responsible exercise of freedom of speech and expression.”

These changes will give far too much power to the executive to control speech, and their vagueness (both with respect to the terms used, and the addition of “in certain cases” without defining them) will allow them the arbitrariness in enforcement, which lends itself suppression of dissent.

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Download the Law Commission report here.

Image source: Flickr user Carolyn Tiry under CCBY.20

Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.



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