The Bharatiya Nyaya Sanhita, 2023— the Indian government’s proposed replacement for the Indian Penal Code, 1860— has returned from evaluation by the Rajya Sabha’s Department-Related Parliamentary Standing Committee on Home Affairs.
With around 40 pages of comments and recommendations (and 130 pages of dissent notes from concerned MPs), the Committee’s report attempts to evaluate how the Sanhita approaches regulating crime in modern India. As we’ve previously reported, the bill’s provisions on electronic crimes, along with two other similar proposed criminal laws, could significantly impact various aspects of India’s digital ecosystem, including speech and safety.
The Committee’s report only addresses a handful of these provisions with little rigorous commentary, raising concerns about the quality and depth of its ‘consultation’ process. Over a dozen dissent notes were filed against the Committee’s proceedings by its members, questioning the contents of the laws, their poor drafting, retention of colonial-era power imbalances, and even Hindi imposition allegations. Stay tuned for our reporting on them.
What the Bill does: It repeals the Indian Penal Code’s “sedition” offence, which was often used to criminalise ambiguously defined seditious speech against the state. However, the Sanhita inserts a new section criminalising acts endangering the sovereignty, unity, and integrity of India. This covers using electronic communications or financial means to excite armed rebellion, subversive activities, secession, separatism, or to endanger India’s unity, sovereignty and integrity. As some observed, this new provision seems to widen the scope of offences against the state (and punishment), compared to the sedition law, raising free speech concerns.
What the Committee discussed: Claiming to have “extensively” discussed the provision, the Committee found that “the provisions within the sedition law that are suggested for removal are somehow retained in clause 150 in mild form addressing actions that jeopardize the sovereignty, unity, and integrity of India”. The report went as far as to say that the new clause under the Sanhita “maintains concerns for national integrity and sovereignty” included in sedition law “but rephrases the offence”.
The final recommendation: Somewhat perplexingly, the Committee found the development “very progressive”, complimenting the government for deleting “sedition” from criminal law by “rephrasing it without compromising the security of the state”. The only recommendation—adding clarificatory language to an incomplete explanation on exemptions accompanying the provision:
The committee recommended that the explanation say, “comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section do not constitute [an] offence under the section“.
Preventing sexual offences against women online
What the Bill does: Criminalises voyeurism—like watching or capturing women engaging in private acts where they have expectations of privacy, or disseminating them. If the victim has consented to the images being taken but not to their dissemination, then that constitutes an offence too. Importantly, by framing the victims of voyeurism as only women, the Sanhita leaves out men and transpersons who may also be subjected to such crimes. Notably, the Sanhita does not assign a gender to the perpetrators.
What the Committee discussed: They agreed that non-consensual imagery of women available online is a cause for concern. “Such acts are an outrage on the modesty of a woman thereby taking a toll on the lives of women leading to mental and physical agony particularly when such images go viral on the internet,” they found.
The final recommendation: The Committee did not address or mention concerns over male and trans victims of these crimes, offering praise for the government instead. “The Committee lauds the efforts of the Government in introducing gender neutrality wherever possible and in bringing all the offences committed on women and children under one chapter and in giving them precedence,” it commented. “As mentioned in the Statement of Objects, it shows a citizen centric approach.”
The Sanhita provisions impacting the digital ecosystem that the Committee didn’t comment on
Misinformation online: The Sanhita criminalises using electronic communications to publish false or misleading information that jeopardises India’s sovereignty, unity, integrity, and security. Thresholds for determining false, misleading, or jeopardising information were not specified.
While the Committee didn’t have comments on the provision, it comes after a tumultuous year of the Indian government attempting to regulate the ‘truth’ online. Earlier this year, it passed an amendment to India’s platform regulation rules empowering a government-appointed unit to fact check information on the Central government’s dealings online. The Bombay High Court received multiple constitutional challenges against the provision, which the petitioners argued makes the government the judge, jury, and executioner of what constitutes the ‘truth’ online. Judgment will be likely delivered on December 1st.
Defamation (and satire): The Sanhita criminalises defamation—potentially including speech expressed in the “form of an alternative or expressed ironically”. For example, it says:
[If someone says] “‘Z is an honest man; he never stole B’s watch’; intending to cause it to be believed that Z did steal B’s watch. This is defamation, unless it falls within one of the exceptions”. Exceptions are made in the case of speech for the public good, good faith opinions of public servants, public questions, and more.
Only one of the dissent notes to the Sanhita acknowledges defamation—P. Chidambaram’s—although it doesn’t address the free speech concern. “While ‘ defamation’ may be retained as an offence, a limitation period must be provided within which a person may be prosecuted,” the Rajya Sabha Member of Parliament wrote. “A limitation of one year from the date of knowledge of the alleged defamatory statement by the complainant may be provided.”
Overall, a provision like this could impact satirical and critical speech in India, a comment raised by the same petitioners (including satirists whose fame spread online) challenging the fact check amendment mentioned above. The government’s stand on the matter is also ambiguous—while responding to the petitioners, it said it supports satire, but that it should come with a disclaimer, and not be passed off as ‘facts’, such as those reported on by news outlets.
Men cyberstalking women online: Men monitoring women online on the Internet, by email, or other forms of electronic communication, commit the offence of “stalking” under the Sanhita. Also stalkers: men who follow women and contact them for personal interactions despite the woman’s ‘clear indication’ of disinterest. While a welcome introduction, the provision again frames women as the sole victims of stalking (whether online, or otherwise) and men as the sole perpetrators—which may leave non-female victims outside of the section’s protection.
Forging electronic records (and Aadhaar cards): The Sanhita states that forgery means faking electronic records to cause damage to the public, to support any claim or title, to cause a person to party with property, to enter into an express or implied contract, or to commit fraud. Forging electronic records of identity documents issued by the government (like voter cards, Aadhaar, or certificates for birth, marriage, and burial), among other documents, is also punishable.
On encryption: Using encryption (or other ‘information hiding tools’, among others) to voluntarily conceal information on crimes likely to be punished with a death sentence or life imprisonment is an offence under the Sanhita. If public servants use encryption or information-hiding tools to conceal information on offences they are bound to prevent, that’s an offence too. Various punishments are prescribed here.
National security and extra-territorial crimes against India: The Sanhita’s provisions apply to all sorts of people within and outside India. But, particularly, they also apply to any person outside India committing offences that target computer resources located in India. Here, offences means acts committed outside India, which would be punishable under the Sanhita if committed inside India.
However, the Committee did comment on a separate provision which states that “a person abets an offence within the meaning of this Sanhita who, without and beyond India, abets the commission of any act in India which would constitute an offence if committed in India”. The Committee said:
“Prior to this proposed provision, there was no law to prosecute a person located outside India and who abets the commission of an offence in India. However, the Committee contemplates that execution of sentence outside territorial jurisdiction of the country would still be strictly governed by the international treaties.”
Offences committed by children online: No act is an offence under the Sanhita if committed by a child under seven years of age. Also exempted: acts by children between seven and twelve years, who haven’t attained “sufficient maturity” to judge the consequences of their actions in that specific case.
Impacts on tech policy activism: The law penalises ‘unlawful assemblies’ of five or more people discussing or undertaking various specified criminal offences—which doesn’t seem unreasonable. However, a gathering simply meeting to “resist the execution of any law, or of any legal process” can also be designated as an unlawful assembly. The Sanhita adds that “an assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly”.
It’s unclear if this could impact gatherings discussing action against the perceived shortcomings of Indian laws—in short, political and legal activism, which includes tech policy activism too. The threshold of ‘resistance’ to any law, that is when such resistance becomes ‘harmful’ or worrying, isn’t specified in the Sanhita.
Speech promoting inter-group conflicts: The Sanhita criminalises publishing statements, reports with false information, rumours, and alarming news by electronic means, among others, to promote enmity, hatred, or ill will between religious, racial, linguistic, regional, or caste groups. An exemption is when the person circulates the speech with “reasonable grounds” that it is true, and publishes it without intent and in good faith.
Speech prejudicial to national integration: The Sanhita criminalises using electronic communications to claim that any class of persons’ religious, racial, linguistic, regional, or caste memberships prevent them from bearing “true faith and allegiance to the Constitution”, or from upholding India’ sovereignty and integrity. The same goes for electronic communications to assert that these groups should be denied or deprived of their rights as Indians. It’s also an offence to use electronic communications to discuss the obligations of a class of persons based on their membership in that class, specifically when this claim will likely cause disharmony, enmity, hatred, or ill will between the class and other persons.
Speech prejudicial to communal harmony: Among other mediums, using electronic communications to promote disharmony, enmity, hatred, or ill-will between different religious, racial, linguistic, regional, or caste groups is an offence under the Sanhita.
Abetting mutinies or armed forces rebellions: Among other mediums, the Sanhita also punishes using electronic means to circulate any statement, false information, rumour or report intending to cause members of India’s armed forces to mutiny or disregard their duties. Also criminalised: such reports intending or likely to cause fear, public alarm, or induce the public to commit offences against the State or “public tranquillity”. Finally, speech that incites a class of people to commit offences against another class of people is also punished.