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Legislations (Criminal)

Art 19(1)(a) of the Constitution of India guarantees Freedom of Speech and expression to citizens, subject to the reasonable restrictions enumerated under Art 19(2). Any legislation when subject to challenge before the constitutional courts is adjudged based on whether these violate the rights guaranteed under Part III of the Constitution.If any infringement of the rights is not within the boundaries of reasonable restrictions, such legislation or provision can be held to be unconstitutional. These restrictions are - protection of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense. . Various legislations have been passed by the Parliament and state legislatures that affect the freedom of speech of citizens. Central legislation like the Indian Penal Code, 1860, criminalize certain types of speech like sedition. The Information Technology Act, 2000, regulates speech that takes place in the online sphere. State legislations like the Maharashtra Police Act were drafted keeping in mind the importance of controlling public tranquility. This list provides an exhaustive list of legislation including the Indian Penal Code, 1860, Code of Criminal Procedure, 1973 and the Information Technology Act, 2000, and other acts governing speech in offline and online spaces. You can read more about the issue here- . In case we have missed listing any legislation, please write to us at mail@sflc.in or use the reporting links on our page.

Act/Rule/Order: Indian Penal Code,1860

Section: 124 A

Name of the section: Sedition: whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in [India], shall be punished with [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine. Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]

What this means?: Perhaps one of the most infamously used sections today, Section 124A is interpreted as anything that is said or done which is not in the interests or to the advantage of the ruling Government. A reading of the section would show that a lot of its implementation depends upon the consequences caused by the speech in question. The accused if found guilty can be punished with either an imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine (only). Over the years, the Courts have tried to judiciously interpret the test for sedition in order to protect free speech. Initially, in Queen-Empress v. Jogendar Chunder Bose and Ors (1892) ILR 19 Cal 35, the Calcutta High Court held that the mere existence of the intention to use spoken or written words to cause disaffection to the Government, or to incite people to disobey the Government, was enough to declare a person guilty under this section. Further, in Queen Empress v. Bal Gangadhar Tilak (1917) 19 BOMLR 211, the court further expanded the scope of the section by holding that even words that have the effect of blaming the Government, for instance, not caring for the welfare of the people, would fall under the scope of this section. These interpretations however, did not last long. In 1942, the Court in Niharendu Dutt Majumdar v. King-Emperor AIR 1939 Cal 703 , the Federal Court held that,”The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.” The standard of the test had thus been raised - that there must be an actual inciting of disorder or an intention to do so.

Problems: Recent instances however, give an impression that we are going back towards the initial colonial interpretations of the section. The scope for attack has also broadened, what with the Government harnessing the power of social media to attack anyone with ‘anti Government’ opinions. A simple Google search would be enough to understand the examples that are abound with the misuse of this section. The police are known to include these sections mindlessly in the charges against the accused. This is done with the intention of making it difficult for the accused person to get bail because when a Magistrate is presented with a section as heavy as this, they tend to lean against the idea of letting the person back into society. One of the most recent instances of this was the case of Amulya Leona, a 19 year young individual who was arrested for shouting out a slogan during a protest that was allegedly against national interests. Two interesting points to note about this case - first, the slogan in question did not have any known consequences upon the crowd. In fact, the mike was pulled away from the accused out of fear, denying them the right to explain their intention. The second was the existence of a social media post put up by the accused a few days before the incident that could be used as an explanation for their actions - the intention of the accused. Despite this, however, the accused was arrested and denied bail for a prolonged period of time. In the end, they were granted bail by default only because the police had failed to file the chargesheet within the given time frame. A comparison of the incidents and cases which involve sedition will generally show the same pattern - the slapping of sedition charges without much thought by the police, and the interpretation by the Courts which can go either way, thus leaving the life of the accused in balance. This tendency to give an anti-free speech interpretation to the section has a ripple effect, one of the many consequences being the chilling effect. People now choose to keep quiet about their opinions in order to prevent being arrested.

Link for reporting: Report

 

Act/Rule/Order: Indian Penal Code,1860

Section: 124 A

Name of the section: Sedition: whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in [India], shall be punished with [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine. Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]

What this means?: Perhaps one of the most infamously used sections today, Section 124A is interpreted as anything that is said or done which is not in the interests or to the advantage of the ruling Government. A reading of the section would show that a lot of its implementation depends upon the consequences caused by the speech in question. The accused if found guilty can be punished with either an imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine (only). Over the years, the Courts have tried to judiciously interpret the test for sedition in order to protect free speech. Initially, in Queen-Empress v. Jogendar Chunder Bose and Ors (1892) ILR 19 Cal 35, the Calcutta High Court held that the mere existence of the intention to use spoken or written words to cause disaffection to the Government, or to incite people to disobey the Government, was enough to declare a person guilty under this section. Further, in Queen Empress v. Bal Gangadhar Tilak (1917) 19 BOMLR 211, the court further expanded the scope of the section by holding that even words that have the effect of blaming the Government, for instance, not caring for the welfare of the people, would fall under the scope of this section. These interpretations however, did not last long. In 1942, the Court in Niharendu Dutt Majumdar v. King-Emperor AIR 1939 Cal 703 , the Federal Court held that,”The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency.” The standard of the test had thus been raised - that there must be an actual inciting of disorder or an intention to do so.

Problems: Recent instances however, give an impression that we are going back towards the initial colonial interpretations of the section. The scope for attack has also broadened, what with the Government harnessing the power of social media to attack anyone with ‘anti Government’ opinions. A simple Google search would be enough to understand the examples that are abound with the misuse of this section. The police are known to include these sections mindlessly in the charges against the accused. This is done with the intention of making it difficult for the accused person to get bail because when a Magistrate is presented with a section as heavy as this, they tend to lean against the idea of letting the person back into society. One of the most recent instances of this was the case of Amulya Leona, a 19 year young individual who was arrested for shouting out a slogan during a protest that was allegedly against national interests. Two interesting points to note about this case - first, the slogan in question did not have any known consequences upon the crowd. In fact, the mike was pulled away from the accused out of fear, denying them the right to explain their intention. The second was the existence of a social media post put up by the accused a few days before the incident that could be used as an explanation for their actions - the intention of the accused. Despite this, however, the accused was arrested and denied bail for a prolonged period of time. In the end, they were granted bail by default only because the police had failed to file the chargesheet within the given time frame. A comparison of the incidents and cases which involve sedition will generally show the same pattern - the slapping of sedition charges without much thought by the police, and the interpretation by the Courts which can go either way, thus leaving the life of the accused in balance. This tendency to give an anti-free speech interpretation to the section has a ripple effect, one of the many consequences being the chilling effect. People now choose to keep quiet about their opinions in order to prevent being arrested.

Link for reporting: Report

 

Act/Rule/Order: Indian Penal Code,1860

Section: 120-A

Name of the section: Definition of Criminal Conspiracy: When two or more per­sons agree to do, or cause to be done,— (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agree­ment is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.—It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.]

What this means?: Section 120 A of the IPC defines criminal conspiracy as an agreement between two or more persons who “to do, or cause to be done” either an illegal act or an act which is not illegal, but which is done using illegal means. The proviso to this section states that “no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.” The end goal of any criminal conspiracy should be to do an “illegal act”. Section 43 of the IPC defines the term illegal as being “...applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action.” The mere existence of an agreement to commit an offence is enough; no overt act needs to be proved in this case. This provision is also known infamously for its use against anti Government sentiments. Proving this offence is actually a task - since criminal conspiracies are hatched in secret, one must be able to bring in evidence that go ‘beyond reasonable doubt’.

Problems: One of the landmark instances in which this section is known to have been misused is in the arrests of the so called ‘Urban Naxals’ - academics and human rights activists who have been known to be voiceferous opponents of the Government’s actions. Though not under the IPC, they have been charged via the Unlawful Activities Prevention Act (UAPA) for ‘conspiracy to commit a terrorist act’. These arrests have been made using documents that allegedly prove the conspiracy against the Government. The merits of these however have not yet been tested, leaving the accused to stay behind bars for years. We do not know yet how the Courts will weigh in these evidences, considering their extremely questionable sources.

Link for reporting: Report

 

Act/Rule/Order: Indian Penal Code,1860

Section: 120-B

Name of the section: Punishment of criminal conspiracy

What this means?: Section 120 B provides for two types of punishments for this charge. If the parties have agreed or conspired to commit an offence that is punishable with either death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, then they will be punished in the same manner as if they had abetted the offence. If they have conspired to commit any offence other than the above three types, then they can be imprisoned for upto 6 months, or will have to pay a fine or both.

Problems: Refer to the explanation in section 120 A

Link for reporting: Report

 

Act/Rule/Order: Indian Penal Code,1860

Section: 292

Name of the section: Sale, etc., of obscene book, etc.

What this means?: To begin with, one will find it hard to ignore the paternalistic tone of this section, what with its choice of phrases such as “ ...shall be deemed to be obscene if it is lascivious or appeals to the prurient interest...” and “...the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons...”

Problems: The basic problem with this section lies in the fact that it deals with the issue of morality, a very subjective concept that is generally guided by what the majority says. This ‘tendency test’ was reiterated in the case of R v. Hicklin (1868) 3 Q.B. 360 . Post independence, this question was dealt with in the case of Ranjit Udeshi v. State of Maharashtra 1965 AIR 881. The judgment however has been criticized for being flawed in its interpretation of article 19(2). It said that the article protected ‘public decency and morality’, when instead, the article actually reads ‘public order, decency and morality’. Post this judgment, amendments were made to this section to include the aforesaid phrases, thus putting the right to free speech at stake. Many years later, in 2014, the Court in Aveek Sarkar v. State of West Bengal (2014) 4 SCC 257, the Court finally did away with the Hicklin test, and instead applied the test of contemporary community standards. However, it did not define the framework of this test, leaving it open to broad interpretation that could tilt to the conservative side as well. The section also comes with certain exceptions, like representations made in the name of science, literature or for learning purposes, those made for public good, religious purposes or ancient monuments. Attention must be paid to the first half of the exceptions, particularly because this section has primarily been used to tackled infamous Government ‘book bans’ for instance, Salman Rushdie’s Satanic Verses. The problem with these ban orders by the executive is that they serve as quick fixes when faced with large scale protests by the public against the book in question. The burden is then upon the author or publisher to go to the Courts to prove that the book is not obscene. This will generally take months to years, by which time both the author and publisher would have faced huge losses in business. Additionally, it tends to cause a chilling effect on other authors.

Link for reporting: Report

 

Act/Rule/Order: Indian Penal Code,1860

Section: 293

Name of the section: Sale, etc., of obscene book, etc. to young person: Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the age of twenty years any such obscene object as is referred to in the last preceding section, or offers or at­tempts so to do, shall be punished 2[on first conviction with imprisonment of either description for a term which may extend to three years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to seven years, and also with fine which may extend to five thousand rupees].

What this means?: Section 292 extends to ‘a book, pamphlet, paper, writing, drawing, painting ,representation, figure or any other object.’ Section 293 on the other hand deals only with ‘an obscene object’ that is sold to anyone under the age of 20 years. Apart from these two ingredients, the concept behind the section remains the same as the previous section. It is difficult to understand why a separate section was required in this case. Additionally, the general age for minority is below 18 years of age. This section however defines young people to be below 20 years. This difference in the definition of age might cause confusions amongst different legislations, showing that the State itself is unclear on this stance.

Problems: Refer to the explanation for Section 292

Link for reporting: Report

 

Act/Rule/Order: Indian Penal Code,1860

Section: 499

Name of the section: Defamation

What this means?: A cursory reading of section 499 shows that the most important ingredient of the section is the intention of the accused in question to harm the reputation of the person about whom the statement concerned has been made. The section has also been worded very broadly - ‘Whoever, by words either spoken or intended to be read, or by signs or by visible representations’ - making sure it covers all possible basis of communication. The section also mentions the word ‘imputations’, picking out defamatory statements that focus only on this. According to Cambridge dictionary, an imputation is “a suggestion that someone is guilty of something, or that something is the cause of something else”. The section then provides for explanations and exceptions to this charge. One interesting exception to note is ‘Imputation of truth which public good requires to be made or published’. This is in contrast to the initial drafts of the Indian Penal Code, which provided for truth to be an absolute defense to defamation. Any truth which is spoken or written can only be a defense if it serves a public purpose. Establishing whether a comment is socially useful or serves social welfare is a challenge as morality is a subjective question. This poses a threat to free speech even in cases where it is truthful in nature. Truth is said to be an absolute defense to defamation in the United States. A landmark judgment in this regard has been New York Times Co. v. Sullivan 376 U.S. 254 (1964), where the Supreme Court of the United States held that there needs to be actual malice to be proved in cases of defamation. The court stated that “Actual malice standard may protect inaccurate speech, but that the erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the breathing space that they need to survive.”

Problems: Section 499 of the Indian Penal code can be said to lack reason as there is no distinction made between error and malice in speech. In the case of R. Rajagopal V. State of Tamil Nadu , the Court used to logic of the Sullivan judgment and held that in order to hold someone guilty for defamation, there needs to be reckless disregard for truth. It cautioned that against having a no fault liability as would have a chilling effect on free speech. In order to hold someone liable for defamation, actual malice needs to be proven as well as blatant disregard for the truth. Unfortunately, even after the judgment the concept of no fault liability is still a part of criminal defamation in India. In England, criminal defamation was only considered as an offense when it occurred in writing. The Indian Law commission was of the opinion that verbal defamation, mostly delivered through speeches, could end up causing more wide spread harm than an article could. Thus in 1860, Verbal defamation was made a criminal offense upon its recommendation. It is important to note that Britain no longer has the provision of criminal defamation in its statute books. With the influx of digital medium and post the age of industrialization, it is fairly easy to convert oral speeches and comments to written form in form of tweets, messages etc. Verbal defamation thus is deterrent to the idea of free speech. During the era where libel was a criminal offense, it had to be established by the prosecution that the accused charged with defamation through his words had the tendency to provoke a breach of peace. In India, however, breach of peace is not an ingredient for a defamation suit to be successful. A person can be accused of defamation even if their words or actions did not cause any harm.

Link for reporting: Report

 

Act/Rule/Order: Indian Penal Code,1860

Section: 500

Name of the section: Punishment for defamation: Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

What this means?: Section 500 which provides for the punishment for defamation reads as - Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Problems: Refer to the explanation for section 499

Link for reporting: Report

 

Act/Rule/Order: Indian Penal Code,1860

Section: 153-A

Name of the section: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.

What this means?: The issue of communal differences and sensitive statements made to incite these communal differences has existed since time immemorial. In order to prevent breaches of the public tranquility which might result from excited feelings of enmity between classes of people, the Indian Penal Code introduced certain sections, all of which fall under the relam of ‘Hate speech regulations’. These include - S.153A, S. 153B, S. 295A, S. 298, and S. 505 of the IPC. Simply put, these sections prohibit the making of any imputations against members of any religious, racial, language, or regional group or caste or community. It is broad enough to cover a majority of ways in which statements maybe communicated - ‘words, either written or spoken, signs, visible represenation or otherwise.’ In all of these sections, there must necessarily be the presence of a ‘deliberate or malicious intention’ to malign the group. Absence of malicious intention is a relevant factor to judge whether the offence is committed. For this section to be imposed, the prosecution has to prove prima facie the existence of mens rea (intention) on the part of the accused. It must be the purpose or parts of the purpose of the accused to promote such feelings and if it is no part of his purpose, the mere circumstance that there may be a tendency is not sufficient. The words ‘promotes or tends to promote feelings to enmity’ are to be read as connoting a successful or unsuccessful attempt to promote feelings of enmity. It is important to remember that criminality under these sections does not attach to the thing said or done but to the manner in which it is said or done. So what is said or written is not so important as how it is said or written or with what intent it is said or written. This is particularly important for academic writing especially on sensitive issues - the intention of the author must be gleaned not from the material itself, but the way in which the material has been positioned.

Problems: These sections, however, has been known to be applied selectively. Most recently, a Minister had made a comment inciting members of the Hindu in India to attack members of the Muslim community. This comment has been said to be the starting point of a long drawn series of attacks over a course of three days against the minority community. Despite the existence of the glaring evidence, however (the video of his speech went viral on social media) the police have still refused to admit him on the grounds of lack of evidence. As of 2017, the NCRB data showed that there was a 41% increase in the registration of this offences. Despite this however, the police did not impose this charge even when there was a rise of cow vigilante cases against the Muslim community in 2017. When questioned, the police officers responded saying that it was a murder and that there was no proof of intention to cause communal disharmony. Finally and most importantly, section 196 of the Code of Criminal Procedure states that in order to bring in charges under these sections, the Courts require the prior sanction of the Central Government or the State Government. There is no special protocol established on how this sanction is to be conveyed by the Government to the magistrate. In practice, the order of sanction by the Government is conveyed to the officer who puts the law in motion in cases under Chapter VI of the IPC. When the Government in power itself is biased against minority communities, what hope do we have to get any sort of avail through this section?

Link for reporting: Not Provided

 

Act/Rule/Order: Indian Penal Code,1860

Section: 295-A

Name of the section: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

What this means?: Refer to the explanation in section 153 A

Problems: Refer to the explanation in section 153 A

Link for reporting: Report

 

Act/Rule/Order: Indian Penal Code,1860

Section: 298

Name of the section: Uttering, words, etc., with deliberate intent to wound the religious feelings of any person.

What this means?: Refer to the explanation in section 153 A

Problems: Refer to the explanation in section 153 A

Link for reporting: Report

 

Act/Rule/Order: Indian Penal Code,1860

Section: 505

Name of the section: Statements conducing to public mischief

What this means?: Refer to the explanation in section 153 A

Problems: Refer to the explanation in section 153 A

Link for reporting: Report

 

Act/Rule/Order: Information Technology Act, 2000

Section: 66 A

Name of the section: Punishment for sending offensive messages through communication service, etc.

What this means?: Section 66A of the Information Technology Act, 2000 penalises any person who, by a computer resource, sends any information which is of “grossly offensive” nature or has “menacing character”; or any information which such person believes to be false but shares it to cause annoyance, inconvenience, danger, obstruction, insult, injury etc. or any electronic mail; or message to cause annoyance or inconvenience to deceive, mislead to the recipient.

Problems: This infamous provision was stuck down by the Supreme Court in Shreya Singhal v. Union of India (2015). SFLC.in represented MouthShut.com in the case. The momentous verdict, delivered by Justices J Chelameshwar and R F Nariman, was the culmination of constitutional challenges to various provisions of the IT Act raised by ten separate writ petitions, all of which were heard together by the Court. Section 66A was doubtless the most controversial amongst the challenges, as it had drawn much criticism on account of allowing the arrest of citizens over on-line content deemed annoying, offensive inconveniencing and so on. Several highly publicized arrests of political dissenters under Section 66A added further momentum to calls for reform. The Court, unconvinced by the Government's assurance that Section 66A would only be used in a responsible manner, held that the Section not only failed the 'clear and present danger' test, but also bore no proximate relation to any of the subject matters enumerated under Article 19(2), especially to public order. Moreover, the Court found every expression used in Section 66A to be nebulous and imprecise, and held that the global reach of the Internet can neither restrict the content of Article 19(1)(a), nor justify its denial. As a result, Section 66A was held to be vague, over-broad, violative of Article 19(1)(a), and not saved by Article 19(2). The Section was accordingly struck down as unconstitutional. Interestingly, even as late as 2020, we come across instances where police registers cases under now repealed S. 66A of the Information Technology Act, 2000. Recently, the Andhra Pradesh police had registered a case under S. 66A against a man who was held for scamming people. The Hindustan Times, in 2016, had reported that the police made over 3000 arrests under S. 66A. Most recently, the Karnataka High Court in one of its orders criticised the police for registering an FIR under S. 66A of the Information Technology Act, 2000.

Link for reporting: Report

 

Act/Rule/Order: Information Technology Act, 2000

Section: 67

Name of the section: Punishment for publishing or transmitting obscene material in electronic form.

What this means?: Section 67 of the Information Technology Act, 2000 penalises electronic publication or transmission of any material which is “lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it...”.

Problems: The provision has a vague character as to what constitutes ‘lascivious content’ or ‘obscene material’. This leaves a lot of room open for its misuse. Section 67 has replaced S. 66A in being misused. In 2016, a journalist was arrested in Chattisgarh for posting comments against Samajik Ekta Manch, a vigilante group with close links to the Bastar police. Similarly in 2017, a woman was booked under S. 67 for posting objectionable content about Yogi Adityanath on Facebook.

Link for reporting: Report

 

Act/Rule/Order: Information Technology Act, 2000

Section: 67 A

Name of the section: Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.

What this means?: Section 67A of the Information Technology Act, 2000 penalises anyone who publishes or transmits or causes to be publishes or transmitted in electronic form any sexually explicit act or conduct.

Problems: These vague provisions of the Information Technology Act, 2000 have been rampantly used to crush voices of dissent or criticism against state machinery or its representatives. For instance, in 2015, the Oshiwara police booked a man for tweeting “defamatory statements” against the then Chief Minister of Maharashtra, Devendra Fadnavis. The FIR was filed under S. 67A of the Information Technology Act, 2000. Most recently, an FIR was registered by the Delhi police against fake news busting website, AltNews’ co-founder Mohd. Zubair under S. 67A of the IT Act for harassing and torturing a minor girl online by a tweet.

Link for reporting: Report

 

Act/Rule/Order: Indian Penal Code,1860

Section: 153 B

Name of the section: Imputations, assertions prejudicial to national integration

What this means?: Not Provided

Problems: Not Provided

Link for reporting: Report

 
 

Instances ( Non Criminal)

 
 

Act/Rule/Order: Information Technology Act, 2000

Section: 69A

Name of the section: Website blocking

What this means?: Website blocking is done using Section 69A of the Information Technology Act, 2000 coupled with The Information Technology (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009 hereafter referred to as the ‘Blocking Rules, 2009’. You can read more about this - https://sflc.in/analysis-recent-app-blocking

Link for reporting: Report

 

Act/Rule/Order: Restrictive social media policies

Section: N/A

Name of the section: N/A

What this means?: A number of institutions impose restrictions upon their employees and students about posting on social media such as Facebook, twitter, instagram. This is done to prohibit students and employees from posting negatively about the institution. These policies have a chilling effect on dissent and right to criticise organisations including educational organisations against their arbitrary or discriminatory rules/policies.

Link for reporting: Report

 

Act/Rule/Order: The Code Of Criminal Procedure, 1973

Section: 95 and 96

Name of the section: Book ban

What this means?: Laws on Book Ban and Art Ban Section 95 and 96 of the Code of Criminal Procedure (hereinafter “CrPC”) government banning of books, newspapers or any in India. Interestingly, the word “ban” does not find mention in these provisions. The provisions, instead, use the word “forfeiture” and Section 95 reads as: Essentially, Section 95 empowers the State Governments to declare certain publications forfeited if they “appear” to be in contravention of six provisions listed in the section— Section 124A (Sedition), Section 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), Section 153B (imputation, assertions prejudicial to national- integration), Section 292 (sale etc. of obscene books, etc.), Section 293 (sale, etc. of obscene objects to young person), and Section 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) . The provision limits the offences for which the books maybe banned and also allows for a review under S. 96 of the CrPC. The declaration of forfeiture has to be published on the official gazette by the State Government. Section 96 of CrPC provides for review of forfeiture ordered by the State Government under S. 95. It reads as “application to High Court to set aside declaration of forfeiture”. Section 96 requires constitution of a three-judge bench to adjudicate upon the case.

Link for reporting: Report

 

Act/Rule/Order: The Code Of Criminal Procedure,

Section: 95 and 96

Name of the section: Art censorship

What this means?: Section 95 and 96 of the Code of Criminal Procedure (hereinafter “CrPC”) government banning of books, newspapers or any in India. Interestingly, the word “ban” does not find mention in these provisions. The provisions, instead, use the word “forfeiture” and Section 95 reads as: Essentially, Section 95 empowers the State Governments to declare certain publications forfeited if they “appear” to be in contravention of six provisions listed in the section— Section 124A (Sedition), Section 153A (Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony), Section 153B (imputation, assertions prejudicial to national- integration), Section 292 (sale etc. of obscene books, etc.), Section 293 (sale, etc. of obscene objects to young person), and Section 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs) . The provision limits the offences for which the books maybe banned and also allows for a review under S. 96 of the CrPC. The declaration of forfeiture has to be published on the official gazette by the State Government. Section 96 of CrPC provides for review of forfeiture ordered by the State Government under S. 95. It reads as “application to High Court to set aside declaration of forfeiture”. Section 96 requires constitution of a three-judge bench to adjudicate upon the case.

Link for reporting: Report

 

Act/Rule/Order: The Maharashtra Police Act etc

Section: 10 (2)

Name of the section: Gag Orders

What this means?: A gag order is essentially a “non-judicial prohibition or a judicial ruling barring public disclosure or discussion (as by the press) of information related to a case.” There is no specific law or provision governing gag orders. They can be passed by the Court in form or orders or by the executive magistrates as well. For instance, the 2008 Mumbai Blast gag order which had prohibited live streaming of the terror attack. One of the most recent gag orders passed by the Mumbai police under S. 144 of CrPC received a lot of flak. It essentially held the admins of WhatsApp groups liable for any misinformation shared on them. It also prohibited any persons from “inciting mistrust towards government functionaries and their actions taken in order to prevent spread of the COVID-19 virus and thereby causing danger to human health or safety or a disturbance of the public tranquillity.”

Link for reporting: Report

 

Act/Rule/Order: The Information Technology Act, 2000

Section: Section 79

Name of the section: Intermediary liability

What this means?: Safe Harbour protection in India - The amended Section 79 of the Information Technology Act, 2000 gives the intermediaries protection from liabilities that could arise out of any legal action initiated on the basis of user generated content. They are not liable for any third party information, data, or communication link made available or hosted by it. This exemption is only available in certain cases as provided for by S. 79 (2). These exceptions are - (a) if the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or (b) the intermediary does not– (i) initiate the transmission, (ii) select the receiver of the transmission, and (iii) select or modify the information contained in the transmission; (c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf. The intermediaries get protection from legal liability that could arise from any action of users that is considered illegal as per the IT Act, 2000 or any other legislation. Section 67 C as well as the Intermediary liability rules, 2011, mandate the intermediaries to preserve and retain information of its users for a particular duration. Any refusal to do this is a punishable offence of imprisonment upto 3 years with or without a fine. Section 69 says that they have a duty to assist governement agencies to intercept and decrypt information on its platform. Again, any refusal on their part is a punishable offence.

Link for reporting: Report