Major changes to Indian criminal law are underway! How can we use this process to defend and advance digital rights? #RightToMeme

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Tl;dr

A five member Committee has been established by the Ministry of Home Affairs to recommend reforms to Indian criminal law. Serious concerns have been raised about the composition and functioning of the Committee but the consultation process is still being carried out. In this explainer, we focus on speech based offences under the Indian Penal Code, 1860 which apply over the internet and require reform including sedition, hate speech, defamation, obscenity and fake news.

Background

A five member Committee has been established by the Ministry of Home Affairs to recommend reforms to Indian criminal law. The Committee is headed by Prof. Ranbir Singh (Vice Chancellor, NLU Delhi) and its members include Prof. G. S. Bajpai (Registrar, NLU Delhi), Prof. Balraj Chauhan (Vice Chancellor, DNLU Jabalpur), Mr. Mahesh Jethmalani  (Senior Advocate) and Mr. G. P. Thareja (Former District and Sessions Judge, Delhi).

There is lack of transparency about the terms of reference for the Committee and whether its report will be prepared independently of the Ministry of Home Affairs. The Committee has also come under heavy criticism for lacking regional diversity and representation of women, dalits, adivasis, religious minorities, LGBTQIA+ persons and other marginalized identities. Further, civil society groups have warned against overhauling the country’s criminal justice system in the middle of a pandemic which has disrupted the functioning of the parliament and judiciary and taken away the public’s ability to organize protests.

To learn more about problems with the Committee’s composition, methodology, timelines and functioning, check out this helpful Twitter thread which curates commentary around the criminal law amendment process.

Details about the Consultation

Methodology

Initially, the consultation was going to be conducted through fixed questionnaires with stringent word limits.  This approach was criticized for being too rigid and for giving the impression that the Committee had pre-determined which amendments were required. As this wryly brilliant piece by Abhinav Sekhri notes, it is “difficult to not be left feeling that the questionnaire and its overarching undefined consultation process had reduced the task of reforming criminal law to the banality of customer satisfaction forms asking for my opinion on the quality of service.”

To partially address these concerns, the Committee has stated that it intends to conduct an open consultation in addition to the fixed questionnaires and it has removed the 200 word limit for the questionnaires. The open consultation gives people the option to send their views, suggestions and comments on any issue which relates to the Committee's mandate.

Timeline

The deadlines for the consultation are unusually short considering the scale of the exercise and the prevailing COVID-19 pandemic. As this Article 14 report notes, the Malimath Committee which was established in 2000 for similar purposes took over 2.5 years to submit its report. In comparison, the present Committee has been directed by the Ministry of Home Affairs to submit its report within six months. As a consequence, individuals and organizations have been provided very little time to send their submissions. The open consultation process is open till 16 September 2020. The questionnaire based consultation has been split into six tranches and it will conclude on 09 October 2020.

Impact of Criminal Law on Digital Rights

The Indian Penal Code, 1860 contains several speech based offences including sedition, hate speech, defamation, obscenity and public mischief which can be committed over electronic mediums as well. In addition to this, the Information Technology Act, 2000 contains specific computer related offences. Through its judgments in Shreya Singhal v. Union of India (2015 5 SCC 1), K.S. Puttaswamy v. Union of India (2017 10 SCC 1) and Anuradha Bhasin v. Union of India (2020 SCC Online SC 25), the Supreme Court has recognized that the fundamental rights to freedom of expression and privacy extend to activities of individuals on the internet. Certain “reasonable restrictions” can be imposed on the exercise of these fundamental rights but such restrictions must satisfy the proportionality standard.

Viewed through the lens of the proportionality standard, any amendments to the IPC or IT Act must align with the requirements of legality, legitimacy and necessity. If these requirements are not satisfied, the amendments proposed by the Committee could lead to arbitrary prosecutions of internet users and have a chilling effect on online speech in general.

  • Legality: The legal provision must be clear, precise and accessible. Many existing provisions do not satisfy this requirement because they prohibit speech on vague and overbroad grounds. For instance, even though the scope of sedition was read down by the Supreme Court in Kedarnath v. State of Bihar (AIR 1962 SC 955), the plain text of Section 124A of the IPC still contains vague phrases like ‘hatred’, ‘contempt’ and ‘disaffection’ which has enabled continued misuse of the provision.
  • Legitimacy: The legal provision must pursue a legitimate goal. In this context, what is considered a legitimate goal must be understood from the perspective of a 21st century democracy. Many existing obscenity related provisions will not satisfy this requirement because they prohibit speech based on outdated notions of victorian morality even if there is no violation of consent or harm caused.
  • Necessity: The legal provision must adopt the least restrictive tool available to achieve its goal. In this regard, the UN Special Rapporteur on Freedom of Expression’s 2011 Report has found that imprisonment as a punishment for seeking, receiving and imparting information and ideas can rarely be justified as a proportionate measure under Article 19 of the International Covenant of Civil and Political Rights.

Speech Based Offences

The first two questionnaires for substantive criminal law have been published and they contain several questions relating to sedition, hate speech, defamation, obscenity and fake news. Here, we will outline key concerns relating to these speech based offences which must be considered by the Committee.

Sedition (Section 124A, IPC)

The offence of sedition under Section 124A is an archaic relic and it must be completely repealed. Narrowing down the scope of the offence or introducing procedural safeguards would not be enough to prevent abuse of Section 124A. This has been demonstrated by continued misuse of Section 124A despite the judgement in Kedarnath v. State of Bihar, where the Supreme Court tried to limit the scope of sedition to acts which have a “tendency to disrupt public order.” In any case, the standard adopted in Kedarnath v. State of Bihar is outdated and the appropriate standard in the contemporary context would be prohibiting acts which incite imminent violence.

For more information, check out:

  • IFF’s submission to the Law Commission of India on scrapping sedition.
  • Johannesburg Principles on National Security, Freedom of Expression and Access to Information

Hate Speech (Sections 153A, 153B & 295A, IPC)

The Rabat Plan of Action developed by the Office of the UN High Commissioner for Human Rights in 2013 recommends criminalization of hate speech based on a six part enquiry about (a) social and political context which existed at the time the speech was made, (b) speaker’s position and status in society, (c) intent of the speaker, (d) content and form of the speech, (e) reach of the speech act including the size of its audience and mode of dissemination, and (f) likelihood and imminence of harm. The existing hate speech provisions under the IPC must be amended and rationalized to incorporate the above mentioned elements.

For more information, check out:

  • IFF’s representation to the Delhi Committee for Peace and Harmony
  • Centre for Communication Governance’s comprehensive report on hate speech laws in India

Defamation (Sections 499 & 500, IPC)

The offence of defamation must be decriminalized since it is essentially a private wrong and imprisonment is a disproportionate punishment since alternative remedies are available under civil law. Criminalization of defamation has a chilling effect on free speech in online spaces and it can be weaponized to initiate Strategic Litigation Against Public Participation. We have most recently witnessed this in the context of criminal defamation charges being filed against women who spoke out during the #MeToo movement.

For more information, check out:

Obscenity (Sections 292, 293 & 294, IPC)

India’s obscenity laws are out of touch with the modern world and are long overdue for reform. The amendments made to these provisions should shift focus from patriarchal notions of morality to give primacy to consent and harm. Specific acts such as non-consensual sharing of intimate images and sharing of child sexual abuse material should be prohibited because they violate consent and cause harm to the individuals depicted.

For more information, check out:

  • IFF’s submission to the Parliamentary Committee on impact of pornography
  • IFF’s representation on non consenusal image based sexual abuse.

Public Mischief and Fake News (Section 505, IPC)

In its questionnaire, the Committee has sought inputs on whether fake news should be included within the scope of public mischief under Section 505, IPC. Any restriction on online speech must relate to grounds mentioned under Article 19(2) of the Constitution which include sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation or incitement to an offence. Therefore, the amendments can criminalize spreading of misinformation through electronic mediums only if such an act has a proximate relation with one of the protected interests mentioned under Article 19(2). In such circumstances, whether the information is true or false is irrelevant and the underlying interest sought to be protected by criminalizing fake news spread over the internet can be served better through narrowly tailored provisions prohibiting incitement of violence and hate speech.

For more information, check out:

  • Vasudev Devadavasan’s analysis of fake news under the Indian Constitution
  • IFF's representation on the standards for liability for misinformation for group administrators on Whatsapp
  1. Website of the Committee for Criminal Law Reforms (link)