Law And Immunity: Move to criminalise cyber speech will add impunity to power

Why in news?

An expert committee submitted an interim report on ‘How to police cyberspace’ to the Union Home Ministry a couple of weeks ago.The report recommended amendments to the Indian Penal Code (IPC).

FACTS (PRELIMS)

Sedition law

Sedition is an offence incorporated in Indian Penal Code. An offence having the element of incitement to violence & disaffection against the govt. established by law.

Section 124 A of IPC says- “Anyone who excites or attempts to excite disaffection towards the govt. established by law, has committed the offence of Sedition.”

It includes a clarification of the word “disaffection”, that it includes disloyalty and all feelings of enmity.

Punishment: Imprisonment upto 3 years to life imprisonment, with fine or without it.

Supreme Court ruling on Sedition

In Kedar Nath Singh vs. State of Bihar 1962 case, the Constitution bench of Supreme court ruled that a person can be charged with Sedition only if there is  actual violence or incitement to violence (spark to a powder keg) or subverting government by violent means, through words either written or spoken.

Later, the Supreme Court unambiguously stated that only speech that amounts to “incitement to imminent lawless action” can be criminalised.

The moral crisis is that in spite of the Supreme Court narrowing the scope of sedition, and in spite of the more recently evolved tests to determine when mere speech or expression can be prosecuted, governments have routinely invoked Section 124-A with a view to restricting even benign forms of dissent.

Law commission recommendation

Law commission suggested amending Section 124A to widen the scope of actions that would be punishable under the clause but at the same time reducing maximum punishment from life imprisonment to maximum of seven years and/or a fine.

What is not Sedition?

Judiciary held that mere criticism of govt. policy or public servants will not amount to Sedition

Thus, words and speech can be criminalised and punished only in situations where it is being used to incite mobs or crowds to violent action

MAINS (ANALYSIS)

The recommended amendments to the Indian Penal Code (IPC) are noteworthy for two reasons

One, they bring within the ambit of IPC (through amendments to Sections 153 and 505) any visual, audio, video, verbal or written communication, transmitted or retransmitted through any telecommunication service, device or computer

They propose that any speech that is disparaging, offensive, indecent, abusive, hate, gravely threatening — and so interpreted — be criminalised

New avatar of Section 66A

Section 66A of the IT Act may have been struck down in the Shreya Singhal case

But this is its new, more astute avatar with a better-operating legal-ware

It seeks to add yet another speech-control legislation to the plethora of existing penal codes

These are Sections 295A, 124A, 153A, 505 that target acts ranging from malicious, to seditious, to disruptive of public order or morality, to violent, to plain mischievous

Governments’ dubious records on free speech

There have been many cases where on one or the other pretext of public order, morality, derogatory speech, slander, and defamation was used to outlaw advocacy, mirth, caricature and the worst of all crimes, dissent

It chooses to turn a deaf ear to posts, threats, and tweets that are deeply offensive, obscene, misogynistic and violently communal

It chooses to remain unmoved by any civic or national imperative when the target of vicious trolling are journalists, film-makers, authors, writers, painters, common people who are just doing their jobs as citizens

It even chooses to use an ordinance, as in Rajasthan, to outlaw the investigation into the conduct of judicial or political power

Freedom of speech

It is nobody’s case that the freedom of speech is an absolute freedom

But our constitutional commitment to free speech demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered

This “danger” cannot be remote, hypothetical, or stemming from a poor appetite for mirth and scorn

It should have, as the Supreme Court said in Shreya Singhal case, a proximate and direct nexus with the expression

Controlled speech adds to impunity of political power

The trade-off between free speech and public order/morality has never hurt political dispensations

The more controlled speech is, the greater has been the immunity and impunity of political power

WAY AHEAD

We need to remember that free speech preconditions the realisation of many of our claims and entitlements

Less of it translates into less democracy in general.

QUESTION BASED ON THE TOPIC

Can amendment to the colonial era sedition law emphasize the importance of freedom of speech and how will it turn as a hindrance to governance. Analyse and provide suggestions.

SOURCE – Indian Express Open End (24/10/2017)