An expert panel constituted to study the 267th Law Commission of India report on hate speech has suggested amendments to the IPC, CrPC and IT Act for curbing online hate speech. The committee was chaired by Dr TK Viswanathan, former Law Secretary, and present Secretary-General of the Lok Sabha. The committee has proposed the addition of sections 153C and 505A to IPC. The expert panel noted that there were demands to re-introduce Section 66A of the IT Act, which was struck down by the Supreme Court as unconstitutional in the Shreya Singhal case.
The committee was of the opinion that it was more effective to insert the substantive provisions in the IPC instead of the IT Act, since the IT Act was primarily concerned with e-commerce regulation. However, taking cues from the Shreya Singhal case, the panel suggested certain modifications in the recommendations of Law Commission Report. In Shreya Singhal, the court had found that not defining terms such as “grossly offensive” or “menacing” in Sec.66A fell foul of Article 19(1)(a), due to the wide scope for discretion it allowed and the consequential chilling effect on freedom of speech.
Insertion of Section 153C was proposed by the Law Commission to prohibit incitement of hatred through online speech on grounds of religion, caste, community, gender, sexual orientation, tribe, language, place of birth etc. Likewise, Section 505A was proposed to be inserted by the Law Commission to prevent causing of alarm, fear, provocation of violence etc on grounds of identity. The expert panel qualified the offences with specific reference to the intention. It was clarified that the need for intent during both stages of the offence viz., (i) during communicating information on the basis of specified grounds and, (ii) to cause fear or incitement, has to be established. Further, the word ‘fear’, used in the said sections, has been altered as “fear of injury”.
The expert panel also clarified that only online speech that relates to religion, race, caste, community, sex, gender, place of birth, residence and language falls within the purview of the proposed sections 153C and 505A IPC. The offensive speech should be “highly disparaging, abusive or inflammatory against any person or group of persons”, and should be uttered with the intention to cause “fear of injury or alarm”.
To make it clear that the proposed provisions are free of the infirmities present in Sec.66A, it was stated in the report as follows:
A high bar has been created to ensure that speech that is not “gravely threatening” is not treated as an offence under this provision. Similarly, the proposed Section 153C(b) can be distinguished from the erstwhile Section 66A which was struck down for being vague as it criminalised offensive and annoying speech. The proposed formulation, on the other hand, clearly defines the kind of speech that would constitute an offense. Accordingly, the proposed Section 153C (b) criminalises online speech only when it both advocates hatred and causes the incitement of an offence.
The panel also suggested the creation of the posts of state cyber crime coordinators and district cyber crime cells by amending the CrPC. Also, the amendment to Section 78 of the IT Act is proposed to authorize an officer of the rank of Sub-Inspector, instead of the Inspector, to investigate cyber offences, since the committee felt that young police officers, who are directly recruited at the level of Sub-inspectors, are better equipped and trained to investigate cyber offences.
The expert panel also expressed the desirability of having guidelines in place to prevent the abuse of provisions by investigation agencies and to safeguard innocent users of social media.