legislations : news and updates


Balancing Civil rights and Anti-terror laws

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Synopsis: The objective of UAPA is to check terrorism, and its misuse is against the ethos of democracy.

Background:
  • Recently, Delhi High Court granted bail to activists who were undertrial for their alleged involvement in the 2020 Delhi riots.
  • The judgment is a judicial opposition to the authoritarian regime of the Unlawful Activities (Prevention) Act (“UAPA”).
  • Also, the UAPA is one of the most abused laws in India today.
How UAPA is being misused?
  1. Firstly, it restricts the right to bail of the accused. Section 43(D)(5) of this Act prevents the release of any accused person on bail if:
    • The court is of the opinion that there are reasonable grounds for believing that the accusation against such a person is prima facie true (what appears to be true at first).
  2. Secondly, the adversarial system of criminal justice causes further delays in overburdened courts.
    • It is based on the testing of evidence through cross-examination.
    • The court considers which side’s evidence is more persuasive.
    • In higher profile cases such as the Delhi riots case, where the record is bulky, trials can take many years. It leaves the accused in prison for years.
  3. Thirdly, section 43(D)(5) is against natural justice and rule of law.
    • In ordinary cases, both sides produce evidence and the court cross-examine them. But when Section 43(D)(5) is applied, the court looks at the prosecution’s evidence, which requires that bail be denied.
    • It forces the court to make decisions on guilt or innocence based on one side’s unchallenged story.
    • It deprives individuals of their freedom for years.

That is why in the case of Section 43(D)(5) when police prepare the charge sheet, it is highly difficult to get bail until there are no internal contradictions.

Why the judgment holds significance?
  1. Firstly, pendency in courts and increasing burden leaves under-trials in prison.
    • That is why bail is the only safeguard and guarantee of the constitutional right to liberty.
  2. Secondly, the Bench of Justices observed that Section 43(D)(5) is against the basic principles of criminal justice.
  3. Thirdly, the court suggested that criminal offenses must be specific in their terms, to protect the innocent.
    • To attract the provisions of the UAPA, the charge sheet must reveal factual, individualised, and particular allegations against the individual.
    • It should specifically link the accused to terrorist activities.
  4. Fourthly, UAPA applications should be limited to terrorism-related cases only.
    • Court also said “Terrorism” is a term of art, and not a word that can be thrown around loosely.
  5. Lastly, the court also highlighted the significance of the right to protest and to dissent

Indian courts have to play an important role in finding a balance between citizens’ civil rights and anti-terrorism legislation. It is the responsibility of the judiciary to keep a check on the executive’s tyranny.

Source: The Hindu

Posted in 9 PM Daily Articles, PUBLICTagged

Protecting the right to dissent from UAPA

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Synopsis: The Delhi High Court granted bail to young student and activists Natasha Narwal, Devangana Kalita, Asif Tanha. The present judgement of Delhi HC will go a long way in strengthening the most important pillar of our democracy – right to protest and dissent.

Introduction
  • The three young students and activists were imprisoned for over a year in connection with the riots in North-east Delhi, and the anti-CAA-NRC protests.
  • They were arrested under some serious charges including those under UAPA (Unlawful Activities Prevention Act).
  • Delhi HC granted them bail and explicitly stated that the foundations of our nation is unlikely to be shaken by a protest, howsoever well-organized by a tribe of college students.
  • Those arrested under UAPA generally languish in jail for years without trial. If this judgment is upheld in the Supreme Court (Delhi Police has gone to the Supreme Court on appeal against the verdict) then it’ll help other dissenters arrested under UAPA without sufficient evidence.
Also read: UAPA explained from UPSC perspective – All you need to know!
What are the problems faced by courts in granting bail under UAPA?

Under UAPA, the accused does not have the option of anticipatory bail. It presumes the accused guilty solely on the basis of the evidence collected. Courts usually face these two problems:

  • Legal bar on granting bail: Firstly, Under Section 43D(5) of UAPA, there is a legal bar on granting bail if the court is of the opinion that there are reasonable grounds to believe that the accusation against those held is prima facie true.
  • No detailed examination of evidence at bail-stage: Secondly, the burden to demonstrate to the court that the accusation is untrue lies with the accused only. This has been made more problematic due to a 2019 Supreme Court judgment. This judgment bars a detailed analysis of the evidence at the bail stage and rules that bail can be denied on “the broad probabilities” of the case.
Also read: Status of UAPA in 2019
How Delhi HC got around these two problems?

The High Court ruled that

  • Available evidence can be examined: The bail court can look at the available evidence to satisfy itself about the prima facie truth of the case. In other words, there is no statutory invincibility to the prosecution case merely because the UAPA has been invoked
Other important remarks by the court

Delhi HC remarked that,

  • Riots are matters concerning public order and not the security of the state. The court observed that the state, in its anxiety to suppress dissent, has blurred the line between the constitutionally guaranteed right to protest and “terrorist activity”.
Conclusion

Delhi HC judgment makes a clear distinction between those accused of offenses against the country’s integrity and security on the one hand, and protesters or dissenters arrested unjustifiably under the criteria of terrorism. This distinction shall help secure citizens two of the most sacred rights in a democracy: the right to protest and the right to dissent.

Source: Click here

Posted in 9 PM Daily Articles, CURRENT AFFAIRS, PUBLICTagged

“Safe Harbour Protection” for Twitter Withdrawn

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What is the News?

According to the Ministry of Electronics and Information Technology(MeitY), Twitter has failed to comply with the Information Technology (IT) Rules, 2021. This means the “Safe Harbour” Protection under Section 79 of the Information Technology (IT) Act is withdrawn for Twitter.

What is “Safe Harbour” Protection under Section 79  of IT Act?
  • Section 79 of the Information Technology (IT) Act provides for the Safe Harbour protection to social media giants.
  • It says that any intermediary shall not be held legally or otherwise liable for any third-party information, data, or communication link made available on its platform.
  • However, the intermediary should not involve any way in initiating the transmission of the message in question, select the receiver of the transmitted message, and do not modify any information of the transmission.
  • This means that as long as a platform acts just as the messenger carrying a message from point A to point B, it will be safe from any legal prosecution due to the transmission of a message. However, it should be without any interference with its content in any manner,
How the removal of Safe Harbour Protection impacts Twitter?
  • It opens up the platform to the possibility of any type of legal action which was not possible before, as a publisher of content.
  • This means that Twitter will be accountable if someone’s content on Twitter leads to some form of violence or violates any Indian law.
  • Then not only the person that has put out the tweet but also Twitter will be legally liable for the content as it no longer has the protection.

Source: Indian Express

Posted in Daily Factly articles, Miscellaneous, PUBLICTagged , , ,

UAPA or Unlawful Activities Prevention Act – Explained, Pointwise

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Introduction

The Delhi High Court recently granted bail to 3 students, accused of conducting riots and anti CAA protests in North East Delhi. This case highlights another instance of misuse of the Unlawful Activities (Prevention) Act (UAPA),1967.

The UAPA was formulated to strengthen the security framework of the country and preserve the unity and integrity of the nation. Nonetheless, it has currently become a tool to curb free speech and political dissent in our country. The cases filed under the law have been rising for a few years, while the conviction rate is going down. It was merely 2.2% between 2016-19.

Therefore, it is imperative to do a comprehensive review of the concerning provisions that make it prone to misuse by the authorities.

What was the case?
  • The Delhi High Court granted bail to Natasha Narwal, Devangana Kalita, and Asif Tanha. They were imprisoned for over a year in connection with the riots in northeast Delhi and the anti-CAA-NRC protests under the UAPA act.
  • The Delhi HC orders applied the Watali precedent. It placed the burden of making out a prima facie case on the police instead of the court itself.
  • The court pointed towards the blurred line between the constitutionally guaranteed right to protest and terrorist activity done by an individual. 
    • This blurring has allowed the government to suppress dissent and undermine the right to protest under Article 19 of the Indian Constitution.
    • In Anita Thakur, 2016, the SC recognised the right to protest as a fundamental right, flowing from Article 19 (1) (b) of the Constitution.
  • The bail was granted by resorting to the Sanjay Dutt case. Under this, the SC said that people who are not covered by the express language of the law, shouldn’t be included by stretching the law.
About Unlawful Activities (Prevention) Act,1967
  • It is primarily an anti-terror law aimed at effective prevention of certain unlawful activities of individuals and associations.
  • Its main objective is to empower the state for dealing with activities directed against the integrity and sovereignty of India.
  • The Act assigns absolute power to the central government. It can declare an activity as unlawful, by way of an Official Gazette.
  • The act has the death penalty and life imprisonment as the highest punishments.
  • Under the act, both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner, even if the crime is committed on foreign land, outside India.
  • The investigating agency can file a charge sheet within a maximum of 180 days after the arrests. This duration can be extended further after information to the court.
  • 2004 amendment:
    • It added “terrorist act” to the list of offences, to ban organisations for terrorist activities.
    • Till 2004, “unlawful” activities referred to actions related to secession and cession of territory. Following the 2004 amendment, the “terrorist act” was added to the list of offences.
  • 2019 amendment:
    • The amendment empowers the Central Government to designate individuals as terrorists on certain grounds.
    • It empowers the Director-General, National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is under investigation by the agency.
    • It also empowers the officers of the NIA, of the rank of Inspector or above, to investigate cases of terrorism. Earlier, the power to investigate was with the officers of the rank of Deputy Superintendent or Assistant Commissioner of Police only.
The rationale behind the law
  • Maintaining Sovereignty and Integrity: It was initially promulgated to enable the government to curb secessionist activities.
    • For instance, states of Nagaland and Tamil Nadu were demanding a separate nation for them during the 1960s.
    • Similarly, during the 1962 war with China, there were few political parties that were supporting China and raising demands for forming a separate nation.
  • Supporting investigation agencies: The law provides greater powers of search, seizure, and detention that are beneficial for aiding the investigation and preventing the occurrence of a bigger crime. 
  • Constitutional support: In 1963, Article 19(2) of the Constitution was amended for the last and final time. The words ‘the sovereignty and integrity of India’ were inserted in it as one more exception to the right to free speech. This enabled the parliament to enact the UAPA based on this exception.
  • International Scenario: Countries across the world have formulated stringent laws for effectively protecting the security framework in their jurisdiction. 
    • For instance, the United States, Israel, China, Pakistan, and European Union have dedicated laws to declare ‘individuals’ as terrorists.

However, the act is criticized for its Draconian provisions, which makes it susceptible to misuse.

Draconian provisions of the UAPA
  • The definition of terrorism in Section 15 of UAPA is indefinite and comprehensive, as it covers almost every kind of violent act, be it political or non-political.
  • Under section-43A and section-43B of UAPA, the police are empowered to search, seize and arrest any person involved in unlawful activities without a warrant. 
  • Under section-43D police are empowered to detain the accused in police custody for 30 days and in judicial custody for a period of 180 days without the charge sheet. 
  • The police can get the police custody of the accused from the judicial custody with the permission of the court.
  • Under UAPA, the accused does not have the option of anticipatory bail. It presumes the accused guilty solely on the basis of the evidence collected. 
  • Under section-44, secret witnesses are allowed during the case proceedings.
Issues associated with UAPA
  • Misuse for Curbing Political Dissent: The wide provisions of the act have been used by the government to curb political dissent rather than to prevent sovereignty and integrity.
    • For instance, many people were booked under UAPA for conducting the North East Delhi riots. However, this was a localized offence and didn’t pose a threat to the unity and integrity of India as a whole. 
    • Further, many innocent protestors were also booked thereby undermining their free speech under Article 19 of the constitution.
  • Against Principle of Natural Justice: The principle calls for assuming every person innocent unless proven guilty and hence a pre-trial imprisonment is a violation of this principle. 
    • However, UAPA allows the Court to deny bail for a terrorist act if there are reasonable grounds to believe that the accusation is prima facie true.
  • Violation of Human Rights: The wide powers given to police for search and arrest is a clear violation of an individual’s right to privacy. It is a fundamental right under Article 21 of the Indian constitution as deduced by court in K.S puttaswamy versus Union of India.
  • Undermines Federalism: Some experts feel that it is against the federal structure since it neglects the authority of state police in terrorism cases. However, ‘Police’ is a state subject under the 7th schedule of Indian Constitution.
  • Frivolous Filing: The wide and ambiguous provisions of the act enables the state to impose frivolous charges on innocent individuals. This is testified by a mere 2.2% conviction rate between 2019-2019.
    • The total number of persons arrested and convicted under UAPA was 5,922 and 132 respectively.
  • Data Deficit: The NCRB does not maintain UAPA data on the basis of religion, race, caste or gender. This creates a barrier in identifying the vulnerable groups who face greater abuse under the act.
Suggestions for UAPA
  • The Parliament should rectify the anomalies with a suitable amendment and vague provisions for improving the interpretation. 
    • Currently, the act punishes an individual who is a member of a banned organisation under the first schedule of UAPA. However, it fails to define what constitutes membership.
  • The court should also strike down the inappropriate provisions of UAPA especially the ones which undermine fundamental rights. 
    • The SC had done this in the past as well.  For instance, in Shreya Singhal Case, Section 66A of the IT Act was held as unconstitutional due to its vagueness that undermined the right to free speech.
  • The government needs to educate the Law enforcement authorities to prevent the problem of misuse. The enforcement authorities should be trained regarding the application and non-application cases of UAPA. Further, they should be made sensitive towards Right of Dissent in a democratic setup.
  • The record of cases filed under UAPA must be subcategorised on the basis of religion, race, caste, or gender. This will help in the identification of the groups/communities who are most prone to abuse under the act.
Conclusion

UAPA gives unfettered powers to the government and leaves a person vulnerable in front of the government. This Act compromises with constitutional values such as freedom of speech, personal liberty and the right to a fair trial. However given the evolving nature of crime and terrorist activities, it is not possible to completely abandon the law. Hence focus must be placed on balancing the security interests with fundamental freedoms granted by the constitution.

Posted in 7 PM, PUBLICTagged

Significance of the Kedar Nath Singh Judgment on Sedition

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Synopsis:

The significance of Kedar Nath Singh judgment for sedition cases was once again highlighted in the recent Vinod Dua sedition case. The 1962 judgment upheld Section-124A of the Indian Penal Code, but it significantly narrowed down the provision.

Background:
  • The SC struck down a sedition case filed under Section-124 A of the Indian Penal Code (IPC) against journalist Vinod Dua.
    • The case was filed over Dua’s comments on his YouTube channel in which he criticized the government. 
    • He was charged under sections 124A (sedition), 268 (public nuisance), 501 (printing matter known to be defamatory) and 505 (statements conducive to public mischief) of the IPC.
  • The SC ruled that every journalist is entitled to protection under the Kedar Nath Singh judgment and thereby dismissed the sedition charges.
What is Section 124A of IPC?
  • Sedition is defined as any action that brings or attempts to bring contempt or hatred towards the government of India. Sedition cases are punishable with a maximum sentence of life imprisonment.
  • It was inserted into IPC in 1870. The section was introduced initially to deal with increasing Wahabi activities between 1863 and 1870. These activities posed a challenge to the colonial government.
Facts of Kedarnath Singh v State of Bihar (1962) case:
  • Kedar Nath was booked for sedition for a seditious speech during his rally at Begusarai.
  • In his speech, he equated elected congress representatives with local goondas (goons). He called for taking back the rule through a general revolution and reducing capitalists, zamindars and Congress into ashes. The aim was to establish a government of the poor and the downtrodden people of India.
  • He was convicted for sedition by a lower court, and later he appealed in SC over the constitutional validity of Section 124A. As per the appeal, Section-124A violated the right to free speech under Article 19 of the constitution.
SC’s ruling in Kedar Nath case:
  • It upheld the constitutional validity of Section-124A however it restricted its scope for misuse.
  • What constitutes sedition? – It said that any act which has an effect of subverting the Government by violent means or creating public disorder would come within the definition of sedition.
  • What is not sedition? – However, mere disapproval of the measures of government with a view to demanding their improvement or alteration by lawful means is not sedition. 
  • Right to criticize: the Court agreed that a citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment.
    • Limitations: Provided it does not incite people to violence against the Government established by law or with the intention of creating public disorder.
  • The court deduced that Kedarnath’s speech gave a general reference to revolution and the element of inciting violence against the government was absent. Therefore, he was acquitted of sedition charges.

Source: The Indian Express 

Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged

Sedition law in India: Arguments for and against- Explained, pointwise

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Introduction

Recently the Supreme Court invalidated a sedition case filed against a journalist. In judgement, the court held that “Every journalist is entitled to protection under the Kedar Nath Singh judgement”. This is not an exceptional case, where the Supreme court has criticized the application of Section 124A(Sedition). In the past also, the judiciary has criticized the implementation of sedition law in India.

Earlier this week also, the Supreme Court held that the interpretation of Section 124A needs a relook, particularly in the context of media freedom. In 2018, the Law Commission of India also published a consultation paper recommending that it is time to re-think or repeal Section 124A of the Indian Penal Code. In this article let’s understand the arguments for and against repealing Sedition.

About the recent case of Sedition
  • In 2020, a local political leader from Himachal Pradesh filed a sedition case against a journalist over his comment on a YouTube show criticizing the central government.
  • The police also filed an FIR and charged him under sections 124A (sedition), 268 (public nuisance), 501 (printing matter known to be defamatory) and 505 (statements conducive to public mischief).
  • The Supreme court recently held that the charges are invalid. The court cited the Kedar Nath Singh judgement, 1962. 
    • In 1962, the Supreme court held that the sedition charges could not be invoked against a citizen for criticizing government actions. As right to criticize is in conformity with the freedom of speech and expression.
What is sedition?
  • In India, Sedition falls under section 124A of the IPC (Indian Penal Code).
  • It is defined as any action that brings or attempts to bring contempt or hatred towards the government of India.
  • Sedition cases are punishable with a maximum sentence of life imprisonment.
  • It is classified as “cognizable(No need Court warrant to arrest the person) and a “non-bailable” and “non-compoundable” offence (In a compoundable offence, charges against the accused can withdrawn)
  • A person charged under this provision can’t apply for a government job.
  • She/he has to live without their passport. Apart from that, they must present themselves in court as and when required.
History of Sedition law in India

Sedition law was first enacted in 17th century England. Later it was inserted into IPC in 1870.

  1. The section was introduced initially to deal with increasing Wahabi activities between 1863 and 1870. These activities posed a challenge to the colonial government.
  2. Some of the most famous sedition trials of the late 19th and early 20th century involved Indian nationalist leaders.
    • The first among them was the trial of Jogendra Chandra Bose in 1891. He was the editor of the newspaper, Bangobasi. He wrote an article criticizing the Age of Consent Bill for posing a threat to the religion and for its coercive relationship with Indians.
    • It was also used to prosecute Bal Gangadhar Tilak (for his writings in Kesari) in 1897.
    • The other well-known case was the sedition trial of Mahatma Gandhi in 1922. Gandhi had called Sedition “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.
Judicial interventions on Sedition law in India
  1.  In 1951, the Punjab High Court had ruled Section 124A to be unconstitutional. A similar ruling was passed in 1959 by the Allahabad High Court, which also concluded that it struck at the very root of free speech.
  2. Kedar Nath Singh v State of Bihar,1962:
    • The Supreme Court has upheld the constitutionality of Section 124-A (sedition) on the basis that this power was required by the state to protect itself.
    • However, it said that every citizen has a right to say or write about the government by way of criticism or comment. A citizen can criticize the government to the extent it does not incite people into violence against the government or with the intention of creating public disorder.
  3. P. Alavi vs State of Kerala,1982:
    • The Supreme Court held that sloganeering, criticizing of Parliament or Judicial setup does not amount to sedition.
  4. Balwant Singh v State of Punjab,1995:
    • The Supreme Court acquitted persons from charges of sedition for shouting slogans such as “Khalistan Zindabad”.
    • The court held that mere raising of slogans by two individuals alone cannot be said as sedition. Further, it is also not considered as an attempt aimed to excite hatred or disaffection against the government.
  5. Sanskar Marathe vs The State Of Maharashtra, 2015
    • In this case, the Bombay High Court issued certain guidelines Police officials must follow before filing a sedition case against anyone.
    • These guidelines include an objective evaluation of the seditious material. By evaluation, the police must form an opinion on whether the words and actions caused disaffection and disloyalty to the government.
  6. Rajat Sharma v. The Union of India Case, 2021
    • In this case, the court ruling said that disagreeing with the views and policies of the government will not attract the offence of sedition. So the provision of Sedition cannot be invoked to quiet the disquiet (criminalizing the critics).
Arguments supporting the sedition law in India
  1. Section 124A of the IPC has its utility in combating anti-national, secessionist and terrorist elements
  2. It protects the elected government from attempts to overthrow the government with violence and illegal means. The continued existence of the government established by law is an essential condition of the stability of the State
  3. If contempt of court invites penal action, contempt of government should also attract punishment
  4. Many districts in different states face a Maoist insurgency and rebel groups virtually run a parallel administration. These groups openly advocate the overthrow of the state government by revolution

So, the abolition of Section 124A would be ill-advised merely because it has been wrongly invoked in some highly publicized cases.

Arguments against the sedition law in India
  1. Poor implementation of court guidelines: Every time the sedition case was getting quashed, the Judiciary guided the law enforcement agencies regarding its application. But the law enforcement agencies are not following the guidelines in letter and spirit.
  2. Increasing misuse of sedition: The recent reports show that the number of cases of sedition under Section 124A increased by 160%. Whereas the rate of conviction dropped to 3.3% in 2019 from 33.3% in 2016.
  3. Abolition of Sedition in the UK: The U.K. abolished the offence of sedition in 2010. Whereas, India is still retaining the law given by the British Empire.
    • Similarly, in Australia also, following the recommendations of the Australian Law Reform Commission (ALRC) the term sedition was removed and replaced with references to ‘urging violence offenses’.
  4. Recommendation of Law commission: In 2018, the Law Commission of India questioned how far it is justified to retain Section 124A. It even suggested to re-think or repeal the Section 124A of the Indian Penal Code.
  5. Against India’s international Commitment: In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR).
    • It sets forth internationally recognized standards for the protection of freedom of expression. However, misuse of sedition and arbitrary slapping of charges are inconsistent with India’s international commitments.
  6. IPC and Unlawful Activities Prevention Act have provisions that penalize “disrupting the public order” or “overthrowing the government with violence and illegal means”. These are sufficient for protecting national integrity. There is no specific need for Section 124A.
Suggestions
  1. The government has to educate the Law enforcement authorities to prevent the problem of misuse. The enforcement authorities might be trained regarding the application and non-application cases of sedition and other criminal defamation suits.
  2. Parent-Child approach: The state must act like it is the parent of all its citizens. Despite the insult (sedition) by children (citizen), parents don’t discard their children quite easily.
  3. State should also accept the fact that public figures must face criticism.
  4. The Protection of Speech and Reputation Bill, 2016 in modified form can be enacted by the government. The Private member bill has certain important provisions such as
    • Setting the maximum claim limits and barring governments, local bodies and other institutions (statutory functions) from filing suits for defamation and sedition.
    • Providing punishments such as apologies, corrections and retractions, for a lesser form of crimes.

Conclusion

India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy. Dissent is the lifeblood of democracy. If the criticisms reach at the right time to the government, then it can save a lot of resources, government machinery, etc. On the other hand, to secure national integrity, divisive forces have to be kept in check.  Preventing wrongful enforcement and misuse alone can remove the majority of the criticism against the Sedition. So the government must prioritize that.

Posted in 7 PM, PUBLICTagged

Journalists need protection against “sedition charges”: Supreme Court

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What is the News?

Supreme Court of India has quashed the FIR lodged against a senior journalist for sedition charge and other offences. In that, the court held that the Journalists need protection against sedition charges.

What was the case?
  • A sedition case was filed against a senior journalist over his YouTube show where he had criticized the Prime Minister and the Union Government.
  • The journalist approached the Supreme Court seeking the quashing of the FIR. He told the Supreme Court that criticism of the government was not in itself seditious unless it instigated the violence.
What did the Court say?
  • The Supreme Court invalidated the sedition case registered against the journalist.
  • Criticism & disapproval doesn’t amount to sedition: The court said that strong words of disapproval about the ruling government is not sedition.
    • Moreover, mere criticism of governments is not sufficient to constitute sedition. Honest and reasonable criticism is a source of strength to a community rather than a weakness.
  • The Court also referred to the 1962 Kedar Nath Singh verdict and said that under it every journalist is entitled to protection from sedition charges.
Kedar Nath Singh Judgment,1962
  • In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court upheld the constitutional validity of the sedition law.
  • The Court said that sedition is a reasonable restriction on free speech as provided in Article 19(2) of the Constitution.
  • However, the court made it clear that a citizen has the right to say or write whatever she/he likes about the government or its measures.
  • But this is only as long as s/he does not incite people to violence against the government and not do things with the intention of creating public disorder.

Source: The Hindu

Posted in Daily Factly articles, daily news, Daily News Updates, Factly: Polity and Nation, PUBLICTagged ,

“Sedition law” needs relook, especially for media: Supreme Court

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What is the News?

The Supreme Court of India has said that Section 124A of the Indian Penal Code that deals with sedition requires interpretation, particularly in the context of media freedom.

What was the case?
  • A petition was filed in the Supreme Court. It was after the Andhra Pradesh Police had registered a suo moto Sedition Case against two TV Channels.
  • These channels broadcasted programmes of a rebel Lok Sabha MP from the ruling party. They criticized the government and the Chief Minister of Andhra Pradesh. So the sedition case was filed against these channels.
What did the petitioners argue?
  • The petitioners said that the case against them constitutes an attempt to silence the electronic media. They also argued the case as an assault on the freedom of speech and expression under Article 19(1)(a) of the Constitution.
  • Moreover, the allegations in the FIR do not establish any offences under the provisions which have been invoked against them.
What did the Court say?
  • The Supreme Court has restrained the Andhra Pradesh police from taking coercive action against two TV news channels charged with sedition. However, the court did not stay the investigation in the case.
  • Moreover, the court observed that there was a need to define the scope of offences under Section 124A (sedition) Section 153A (promotion of communal hatred) and Section 505 (statements conducing to public mischief) of the Indian Penal Code.
    • This was especially needed in the context of media freedom and particularly on the issue of the rights of the press and free speech.
About Section 124A of IPC:
  • It is defined as any action that brings or attempts to bring contempt or hatred towards the government of India. Sedition cases are punishable with a maximum sentence of life imprisonment.
  • It is classified as “cognisable”(No need Court warrant to arrest the person) and a “non-bailable” and “non-compoundable” offence.

Source: Indian Express

Posted in Daily Factly articles, daily news, Daily News Updates, Miscellaneous, PUBLICTagged

Misuse of Sedition law in India

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Synopsis – Unwarranted arrest of MP in Andhra Pradesh is another example of the misuse of the Sedition law in India relating to exciting disaffection against the government.

Introduction-
  • Section 124-A [which deals with sedition law] has been misused in a number of cases in India. One of them is the unwarranted arrest of K. Raghu Ramakrishna Raju, an MP from Andhra Pradesh.
  • Raju was arrested for allegedly acting in a manner that harmed the state government’s reputation.
  • He has been charged under Sections 124A (sedition), 153A (Promoting enmity between different groups), and 505 (conducing public mischief).

What is the sedition act and the issues related to it?

Section 124A of the IPC, which deals with sedition states – Any offense committed with the intent to bring hatred or contempt or attempt to spread disaffection toward the government, shall be punished.

Punishment under sedition law- Sedition is a non-bailable offense. The punishment under the law varies from imprisonment up to three years to a life term and fine.

Issues with the act-
  • Firstly, Against fundamental right to speech – The law often goes against the fundamental right to free speech and expressions. Which are essential parts of democracy. The sedition law has a chilling effect on people who think and speak freely.
    • For example- Raju was accused of only speech-based offenses relating to his diatribe against his party leader and CM.
  • Secondly, Sedition law is a relic of colonial legacy – The law of sedition [British legacy] is an outdated and archaic rule that stands in the way of the Constitution’s provision of freedom of speech.
  • Thirdly, Low conviction rate- Most cases that are filed do not end in a conviction if Section 124A is applied.
  • Fourthly, The sedition law is overly wide and loosely defined- The terminology used under Section 124-A, such as disaffection, is unclear and open to multiple interpretations depending on the investigating officers.
How K. Raghu Ramakrishna Raju’s arrest was unjust?

According to the Supreme Court’s Arnesh Kumar judgment (2014), there is no need to arrest someone for a crime that carries a sentence of seven years or less.

  • Prison time for Sections 153A and Sections 505 is less than seven years.
  • And Sections 124A (sedition), which has a maximum sentence of life imprisonment, also prescribes an alternative jail term of three years.

Way forward-

  • The definition of sedition should be narrowed down and properly defined.
  • Section 124A should not be misused as a tool to curb free speech and expression and it would be even more protective of free speech if the Centre abolished the provision.

Source- The Hindu

Posted in 9 PM Daily Articles, daily news, Daily News Updates, PUBLICTagged

Status of Unlawful Activities Prevention Act(UAPA) in 2019

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What is the News?

The Ministry of Home Affairs(MHA) informed Lok Sabha about the number of cases registered under the Unlawful Activities [Prevention] Act(UAPA) in 2019.

Key Data Provided by MHA on cases under UAPA:
  • Persons arrested under UAPA: In 1226 cases around 1948 persons were arrested under UAPA across the country in 2019.
    • This is a 72% increase in the number of persons arrested under the UAPA in 2019 compared to 2015.
  • The Highest Number of Cases: In 2019, the highest number of cases were registered in Manipur. This is then followed by Tamil Nadu, Jammu, and Kashmir, Jharkhand, and Assam.
  • The Highest Number of Arrests: The highest number of arrests in 2019 was made in Uttar Pradesh. The is then followed by Manipur, Tamil Nadu, Jammu, and Kashmir and Jharkhand followed the UP.
  • Terrorist Organisations: The government has declared 42 organisations as terrorist organisations and listed their names in the First Schedule of the UAPA.
  • Convictions: Only 2% of cases registered under the UAPA between 2016-2019 ended in convictions by the court.

Read about National security Laws

About Unlawful Activities [Prevention] Act(UAPA):
  • UAPA was introduced in 1967 to target secessionist organizations. It is primarily an anti-terror law aimed at preventing certain unlawful activities of individuals and associations.
  • Investigation: The cases under the UAPA are investigated by the State police and the National Investigation Agency(NIA).
  • Bail: Under the act, getting bail is rare. The investigating agency has up to 180 days to file a charge sheet.

Click Here to Read More about UAPA

 Source: The Hindu

Posted in acts, bills and regulations, Daily Factly articles, Factly: Bills and Acts, PUBLICTagged

Supreme Court judgment on Sedition Law

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What is the News?

The Supreme Court in the Rajat Sharma v. The Union of India Case ruled in favour of Farooq Abdullah. The court in its ruling said that disagreeing with the views and policies of the government will not attract the offence of sedition.

What was the case?

  • A petition was filed in the Supreme Court against Farooq Abdullah, Former Chief Minister of J&K. It alleged that Farooq Abdullah made a seditious statement by saying that to restore Article 370, he would take help from China.
  • Hence, the petition asked the court to terminate the Lok Sabha membership of Farooq Abdullah and book him for sedition under Section 124A of IPC.

What were the observations made by the Court?

  • The court said that the expression of a view that is different from a decision taken by the Central Government itself cannot be said to be seditious.
  • The court dismissed the petition. It further said that it was a clear case of publicity interest litigation by petitioners to get their names in the Press.
  • The court also imposed a fine of ₹50,000 on the petitioner to be deposited with the Supreme Court Advocates Welfare Fund in four weeks.

Significance of this judgment:

  • This judgment assumes significance in the recent period when the sedition law is invoked by police against activists very frequently. People expressing their opinion or making statements on social networking sites against the government are also facing charges under sedition law.

Source: The Hindu

Posted in Daily Factly articles, Factly: Polity and Nation, PUBLICTagged ,

Issue of Bail under anti-terrorism cases

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Synopsis: Bombay HC granted bail in UAPA case on health grounds. It will set a new example of upholding the individual’s right in anti-terrorism cases.

Background

  • Bombay High Court granted bail to poet Varavara Rao on medical grounds. He was jailed under the Unlawful Activities (Prevention) Act for the Bhima Koregaon case.
  • Recently, Varavara Rao was admitted to the Nanavati Hospital after his condition deteriorated due to some ailments.
  • NIA was of the opinion that there is a statutory bar under Section 43D (5) of the UAPA on providing bail if the accusation against a person is prima facie true. Also when the accused has access to treatment in a government hospital. Bail on the health grounds will attract a flood of such petitions.
  • However, HC ruled that even provisions of anti-terrorism law cannot curb the right to life under Article 21.

Grounds for Bail in Anti-terrorism cases

  1. Supreme Court ruling in 2019 made it nearly impossible to grant bails in the cases of UAPA. It is possible only in the case when an accused could prove charges against him to be prima facie untrue.
  2. However, recently, SC held that prolonged imprisonment without any near possibility of completion of the trial is a ground for bail.
  3. In this case, too, HC observed the same situations before granting the bail. It was observed that there was no possibility of early completion of the trial. Moreover, charges are yet to be framed.

This HC judgment will set a new precedent of valuing human Rights over National Security Laws.

Judiciary

Posted in 9 PM Daily Articles, PUBLICTagged

Use of Criminal conspiracy Law in India – Explained, Pointwise

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Recently the Delhi High Court granted bail to a climate activist in the Greta Thunberg toolkit case. The court dismissed the criminal conspiracy charges filed by Delhi police due to a lack of evidence. The law on criminal conspiracy was enacted to control the nationalist movement in India before independence. However, even after more than 7 decades of independence, this law is in use frequently.

What is the recent case on the law of criminal conspiracy?

Greta Thunberg toolkit was related to the violence committed during the farmer’s protest on January 26. The Delhi Police arrested a Climate Activist in India related to the tool kit case. The police claimed that the climate activist was the editor of “toolkit Google doc” and a “key conspirator” in the toolkit formulation and distribution.

Delhi Police accused the activist under section 120B (Criminal Conspiracy) of the Indian Penal Code (IPC) and Sections 124A of IPC(sedition). The police claimed the Activist and others were the local collaborators in the conspiracy for inciting disaffection and accelerating the violence.

But the Delhi high court rejected the Delhi Police accusations and granted her bail. The court mentioned that the police lacked evidence to prove her conspiracy charges. The Court further held that interaction with people of doubtful credentials is not an offenceApart from that the court also held that the authorities can not consider inferences (prior assumptions) as evidence.

What is criminal conspiracy law in India?

In India, criminal conspiracy falls under Section 120 of the Indian Penal Code (IPC).

  1. Section 120A of IPC defines criminal conspiracy.
  2. Section 120B of IPC prescribes punishments for criminal conspiracy.

Definition:

It is defined as an “agreement” between two or more persons to commit a criminal offence.

For an offence to be classified as a criminal offence, certain conditions have to be satisfied. They are,

  • There must be two or more persons indulged in a criminal offence
  • Even if the actual offence has not been committed, an agreement alone is necessary and sufficient to punish the person
  • The agreement has to be either related to committing an illegal act or a legal act committed through illegal means.
  • If such an agreement is reached then such agreement will be considered a criminal conspiracy.
  • But, merely discussing or having knowledge or having any ill intentions of committing a crime would not constitute criminal conspiracy.
  • It is not necessary for all the conspirators to know each other for committing an offence.
  • If the conspiracy charge got proved in court, then all the accused will be held liable for conspiracy. Apart from that, the accused persons shall also be punished separately for the individual offences committed by them.

For example, if a group of friends (A, B, C, D) are speaking about robbing a bank to get rich, then it is not a criminal conspiracy as they are merely discussing it. But if they agree to rob a bank, and discuss their responsibilities in robbing a bank. Such as Person A and B will rob the money, Person C will threaten the people in Bank and Person D will watch the gate then this will be a criminal conspiracy under the law.

Punishment:

Section 120B of IPC prescribes punishments for criminal conspiracy. Section 120B divides criminal conspiracies into two categories.

  1. Criminal conspiracy to commit serious offences: For serious offences the conspirator will get a punishment similar to abetting (encourage or assist (someone) to do the serious offence) the offence.
    Serious offences here include any offences (if committed by the conspirator) that will attract death penalty, life imprisonment or rigorous imprisonment (two years or more).
  2. Criminal conspiracy to commit other offences: In this case, the punishment under criminal conspiracy shall not exceed six months of imprisonment or fine or both.

How criminal conspiracy law evolved in India?

Initially, during Colonial rule, criminal conspiracy was considered as a civil offence. But the Indian Criminal Law Amendment Act, 1913  changed the conspiracy as a criminal offence. This was used by the British to handle the Revolutionary leaders of India. The famous few cases were,

  • Kakori Conspiracy Case (1925): The case was framed against Hindustan Republican Association for train robbery. The revolutionaries were arrested and tried in court.
  • Lahore Conspiracy Case (1931): This case was framed for the murder of  JP Saunders, a British police officer. The case was filed against Bhagat Singh, Sukhdev, Rajguru and Chandrashekhar Azad. Except Azad all were caught and punished with death sentence. Azad got killed in an encounter later on.

What are the observations made by the court on the criminal conspiracy law?

  1. Bimbdhar Pradhan vs. state of Orissa case 1956: The court held that based on sufficient evidence the court can even convict one person alone for criminal conspiracy.
  2. State of H.P vs Krishan lal case: The Court held that the criminal conspiracy consists of a meeting of minds for agreeing to do on offence. The court defined Meeting of Minds as the persons involved in the conspiracy were well aware of the objective and intention behind the conspiracy
  3. Param Hans Yadav Vs State Of Bihar case 1987: The court observed the difficulties in producing evidence for the charges of conspiracy. Establishing the link between the different chain of events was the only way to prove the conspiracy.
  4. State of Tamil Nadu vs Nalini case: If a person has knowledge about the conspiracy, then it would not make him a conspirator. The court also held that providing shelter to the main accused is not considered as evidence of the conspiracy. A meeting of minds will be required to prove the conspiracy.
    For example, If 3 member planned a robbery in a bank and planning to escape by a car belonging to a person X. If X doesn’t know anything about the robbery, then the X cannot be considered to be a conspirator.

Why do we need to reform the Criminal Conspiracy law?

  1. Law commission report: The law commission in one of its report mentions the needs to reform the criminal conspiracy laws. They were,
    • Section 120A of IPC provides wide-sweeping powers to the government.
    • There is no need for criminal conspiracy legislation especially to punish for conspiracies related to petty offences.
  2. The general rule of crime is not fulfilled by criminal conspiracy law. As a general rule, to constitute a crime, both mens rea (guilty mind or intention)) and actus rea (the guilty act) must be involved. But Section 120 A of IPC punishes merely the guilty mind as a criminal offence.
  3. Section 120-A does not define what are illegal ways to achieve lawful actions. So this provision is getting misused by the government to silence the critics.

Suggestions:

  1. Law enforcement authorities need education on these laws to prevent the problem of misuse. The enforcement authorities might be trained regarding the application and non-application cases of criminal conspiracy cases.
  2. The government has to define illegal ways to do legal actions. This will ensure clarity in the definition and check the misuse to a great extent.
  3. Further, the government should implement the suggestion of the Law Commission by removing petty crimes from Section 120A of IPC.
  4.  The government can consider rolling back the conspiracy to a civil offence. As it was the practice prior to the Criminal Law Amendment Act, 1913. 

The recent case of climate activist is one of the many instances where the law on criminal conspiracy is getting misused. It is the high time for the government to encourage constructive criticisms and amend Section 120A. This will ensure the midline of encouraging healthy debates and punishing the wrong ones in one go.

Posted in 7 PMTagged , ,

Delhi Court’s ruling on Disha Ravi Toolkit case

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Synopsis – Delhi court grants bail to Disha Ravi in its ruling in the tool kit case. It termed evidence produced by Delhi police as inappropriate.

Introduction-

  • Delhi Court granted bail to climate activist Disha Ravi, arrested in the Greta Thunberg ‘toolkit’ case.
  • Delhi Police arrested her on charges of sedition and criminal conspiracy in the Greta toolkit case.

Key takeaways from Court’s ruling-

  • The Delhi court dismissed the claims as Delhi police failed to show any evidence
  • On criminal conspiracy, the Court noted that mere assumption is not sufficient. It should be backed by evidence.
    • The judge stated that only interaction with people of doubtful credentials is not an offence.
  • On sedition, the court cited Kedar Nath case (1962) that actual violence or incitement to violence should be associated with words.
  • Moreover, the Court negated the state’s “global conspiracy” claims and stated that the fundamental right to freedom of speech and expression “includes the right to seek a global audience”. Also, “there are no geographical barriers on communication” as long as it’s “under the four corners of the law.”

What is the Toolkit case?

Toolkit- A document created to explain any issue which provides information on what one needs to do to address the issue.

  • The toolkit includes information about petitions, details about protests, and mass movements.
  • Also provide a roadmap of how to take forward the protest and what can be done, when and how.

Disha Ravi Toolkit case-

  • Delhi police reported that Ravi was the editor of a Google doc (called a toolkit) related to farmer’s protest.
  • Police alleged that she started a WhatsApp Group to make the Toolkit doc in collaboration with a pro-Khalistani organization to spread disaffection against the Indian state.
  • She was charged with Section 120B [Criminal conspiracy], along with Sections 124A (sedition) and 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) of IPC.

 

Self-regulatory toolkit by OTTs for implementation of Self Regulation Codes, 2020

Posted in 9 PM Daily Articles, PUBLICTagged ,

Why Sedition law needs a relook?

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Synopsis: Recent charges of sedition against individuals have brought back focus to seditions law. The oppression of dissenters is more dangerous for society. It creates more division in society compared to seditious acts. 

Introduction 

In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court defended the constitutional validity of sedition. It noted that it is a reasonable restriction on free speech as provided in Article 19(2) of the Constitution.

The court also made clear that an individual has the right to speak or write anything about the government. However, it should not result in inciting people to violence against the government. 

Why does the sedition law need a relook?

In the Aseem Trivedi case, the Bombay High Court issued guidelines which the police must follow in a sedition case. These guidelines include an objective evaluation of the seditious material. By that police must form an opinion on whether the words and actions caused disaffection and disloyalty to the government. However, the law needs a relook due to the following reasons: 

  • Firstly, despite repetitive warnings to law enforcement agencies by courts, there is poor implementation of guidelines given by the court. 
  • Secondly, the recent reports show that the number of cases of sedition under Section 124A increased by 160%. Whereas the rate of conviction dropped to 3.3% in 2019 from 33.3% in 2016. 
  • Thirdly, in this social media age, information travels at a lightning speed, and Cyberbullies can easily trend wrong information. Any kind of misinformation can lead to public disorder. 
  • Fourthly, the U.K. abolished the offence of sedition in 2010. Whereas, India is still retaining the law given by the British Empire.
  • Fifthly, various commissions have questioned the efficacy of such a law in the statute book. For instance, the Law Commission of India questioned how far it is justified to retain Section 124A. 

What steps can be taken to deal with sedition?

Sedition laws will not be repealed anytime sooner. In the meantime, courts can adopt an approach that can balance the issue of National security and the right to speech.  

  • At present sedition is decided based on a content-based test that reviews only the text i.e. even if a written material not caused any social unrest, it can be held a seditious text based on the words used.  
  • Courts must adopt an effect-based test that examines the effects of the seditious text. It means whether the text resulted in violence or not.
  • The principles of justice, liberty, equality and fraternity exists in the Preamble to our Constitution. Courts must uphold these principles. 

It is not the alleged seditious acts that are creating fragments in our society; it is in fact the persecution of individuals and labelling them that are really creating cracks in our socio-political ecosystem. 

Criminalisation of government criticisms: Laws and issues

Posted in 9 PM Daily Articles, acts, bills and regulations, PUBLICTagged

Balancing freedom of speech and national security

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Synopsis: The government warned Twitter over its reluctance in following the executive order for blocking of information. However, the focus should be on balancing free speech and national security.

Background

  • The government used its power under Section 69A of the information and technology act to block information on the Micro-blogging site.
  • This section allows the government to block any information by issuing orders to a digital intermediary. National security, public order, sovereignty and integrity of India, etc, are some grounds for blocking.
  • The apparent reason behind such an order was the use of a controversial hashtag that disturbed public order.
  • The order was only partially followed by Twitter.

Government’s Stance:

  • Social media platforms should respect the law of the land. Partial compliance is simply a violation.
  • Further, there should be consistency in behaviour as Twitter supported police action in Washington’s Capitol Hill incident. But similar support was not seen in the 26th January violent protests at Red fort, Delhi.
    • It removed problematic hashtags as the same was causing the spread of hatred. 
    • It viewed the blocking of journalists’ and activists’ accounts as a threat to freedom of speech and expression under Article 19 of the constitution. Therefore, accounts were reactivated after some time. 

Way Forward:

  • Both the government and Twitter are determined not to escalate the issue. The government has only issued a warning while Twitter has refrained from approaching the court.
  • There is a need to re-examine the extent of the wide ambit of censorship powers under Section 69A. An opportunity was missed by the court in Shreya Singhal versus Union of India, in which the extent of the section was not rationalized.

In the world’s largest democracy, the culture of secrecy and arbitrariness shouldn’t be allowed to suppress freedom of speech and expression. The government must view freedom of speech as a facilitator to the security of the state and not an impediment.

Posted in 9 PM Daily Articles, PUBLICTagged

“Sedition law” can’t be used to criminalise critics: Court

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What is the news?

Delhi Court has observed that the Sedition laws cannot be invoked to quiet the disquiet (criminalising the critics). The court also held that the government cannot act like restricting criminals while using sedition under IPC.

This observation was made by the court while granting bail to two persons arrested by Delhi police for allegedly committing sedition and spread rumours by posting fake videos on Facebook during ongoing farmers’ protests.

What is Sedition?

  • The concept of sedition was introduced under Section 124A under the Indian Penal Code in 1870. It was drafted by Thomas Macaulay.
  • The section was introduced initially to deal with increasing Wahabi activities between 1863 and 1870. These activities posed a challenge to the colonial government.
  • However, in the 19th and early 20th Centuries, the law was mainly used against Indian political leaders seeking independence from British rule.

Punishment under Sedition:

  • Sedition is a cognisable (No need Court warrant to arrest the person), non-compoundable, and non-bailable offence. The sentence can be between three years to imprisonment for life for sedition.
  • A person charged under this law can’t apply for a government job. They have to live without their passport. Apart from that, they must present themselves in the court as and when required.

Sedition Trials during the Freedom Movement:

Some of the most famous sedition trials of the late 19th and early 20th century involved Indian nationalist leaders.

  • The first among them was the trial of Jogendra Chandra Bose in 1891. He was the editor of the newspaper, Bangobasi. He wrote an article criticizing the Age of Consent Bill for posing a threat to the religion and for its coercive relationship with Indians.
  • Further, Bal Gangadhar Tilak was prosecuted for his writings in Kesari in 1897.
  • The other well-known case was the sedition trial of Mahatma Gandhi in 1922. Gandhi had called Sedition “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.

Judiciary on Sedition:

  1.  In 1951, the Punjab High Court had ruled Section 124A to be unconstitutional. A similar ruling was passed in 1959 by the Allahabad High Court, which also concluded that it struck at the very root of free speech.
  2. Kedar Nath Singh v State of Bihar,1962:
    • The Supreme Court has upheld the constitutionality of Section 124-A (sedition) on the basis that this power was required by the state to protect itself.
    • However, it said that every citizen has a right to say or write about the government by way of criticism or comment. A citizen can criticize the government to the extent, it does not incite people into violence.
  3. P.Alavi vs State of Kerala,1982:
    The Supreme Court held that sloganeering, criticising of Parliament or Judicial setup does not amount to sedition.
  4. Balwant Singh v State of Punjab,1995:
    • The Supreme Court acquitted persons from charges of sedition for shouting slogans such as “Khalistan Zindabad”.
    • The court held that mere raising of slogans by two individuals alone cannot be sid as sedition. Further, it is also not considered as an attempt aimed to excite hatred or disaffection against the government.

Read more about national security laws in India

Source: The Hindu

Posted in Daily Factly articles, daily news, Daily News Updates, Miscellaneous, PUBLICTagged

Government’s Notice to Twitter: Why Twitter’s actions are justified?

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Synopsis: Twitter has acted with reason after defying the Indian government’s legal orders. It didn’t implement the order fully and this action is desirable despite the criticism.

Introduction 

Twitter did not act in accordance with the Indian government’s orders under Section 69A of the IT Act. It was required to block hundreds of accounts under the order. 

However, Twitter has said that the list had accounts of journalists, activists, and politicians. Twitter believes that blocking these accounts would not be fair to Indian law and the platform’s contract objectives.

  • This defiance has not gone down well with the government. Independent verifications revealed that many accounts did not post messages suggesting a genocide plan but supported farmers’ protest. 

What were the criticisms against Twitter?

Twitter witnessed criticism on multiple grounds such as: 

  1. Firstly, Twitter’s refusal shows a lack of respect for Indian law because it is bound by legal orders of the government under the Act.
  2. Secondly, Twitter is a private company, and it cannot decide what is proportionate or lawful. Twitter can challenge the order in a court, but cannot choose to comply partially.
  3. Thirdly, Twitter’s decision indicates that it is denying parity to India with the U.S. The platform blocked Donald Trump’s account but refusing to block users in India.
  4. Fourthly, its defiance indicates the increasing power and liberty of Big Tech. It requires a clear and plain zero-tolerance response.

Why Twitter’s actions are justified?

  1. The tension between government and social media platforms is healthy and constructive. It keeps a balance, which was not possible if both were on the same side.
  2. Following government orders blindly will seriously impact twitter’s audience’s fundamental rights. Twitter has also a responsibility to ensure people’s right to free and informed speech.
  3. Big Techs has often sided with the government hurting its users’ rights. For instance, The Wall Street Journal reported that Facebook India failed to act on provocative posts of a member of the ruling party. It is good that Big techs are thinking about users. 
  4. Twitter didn’t ban Trump’s account all of a sudden despite the repeated promotion of lies. His account was spreading misinformation during the Capitol Hill riot.  Before suspending his account, Twitter tried to flag his content and limit its reach. A permanent ban was the last step. Demanding a direct ban is against this process of twitter. 
  5. The current incident is among the rare instances that Twitter has given equivalence to its Indian audience with that of its U.S.’s. Twitter chose to take an independent view of the matter and not blindly complied with the wishes of the government.

Way forward

  • The attempt to extend similar safeguards to Indian users as the US users enjoy is a welcome step. That would also be consistent with the Guiding Principles on Business and Human Rights endorsed by the UNHRC.
Posted in 9 PM Daily Articles, PUBLICTagged ,

Climate activist arrested in ‘Toolkit Conspiracy’

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Synopsis: A 22-year-old climate activist got arrested for misusing a toolkit. Such instances raise a question of alleged misuse of power by the government officials.   

Read More – Toolkit conspiracy case and its imapct on India- Explained Pointwise – ForumIAS Blog 

Background: 

  • The Delhi Police has already registered multiple First Information Reports (FIRs) post the 26th January farmer protest in Delhi. 
  • They have now arrested Disha Ravi, a climate activist from Bengaluru for editing a toolkit published on 3rd February by climate activist Greta Thunberg. It was used by social media users to protest against the farm laws.   

What is a tool kit? 

  • It is simply a document containing a set of directives for social media campaigners. 
  • It includes the hashtags to be used, persons to be targeted, duration of campaign and other things for a systematic and synchronized online campaign.  

Reason for Arrest: 

  • The allegation is that the toolkit was made by Pro – Khalistani separatists. Thus,  editing it amounted to sedition and incitement to riots. 
  • The government believes that activist is part of a Global conspiracy to incite violence in the country by secessionists based in Punjab. 

Issues with Arrest: 

  • First, the Delhi Police didn’t’ seek permission from the state Police. By that, it disobeyed interstate arrest guidelines formulated by the Delhi High Court. Further the accused was not allowed to be properly represented by a counsel. 
  • Second, the toolkit doesn’t contain any directions which led to direct incitement of violence. It was a necessary condition for sedition. 
  • Third, it undermines democratic power when people are arrested due to excessive suspicion and not on merits. Thereby undermining due process. 
  • Fourth, such arrest shows non judicious use of police power which will diminish India’s Global image. 

Way Forward: 

  • The focus should be on addressing the tolerance gap in governance and not on using more repressive strategies. 
  • The masses shouldn’t feel that their rights are not respected by the government and free speech should not be curbed by illegitimate means. 
  • In the case of Ravi, an impartial investigation to establish her crime should be done. 
Posted in 9 PM Daily ArticlesTagged ,

Toolkit conspiracy case and its imapct on India- Explained Pointwise

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Recently Climate activist in India was arrested in the Greta Thunberg toolkit case. Delhi police filed an FIR and issued a non-bailable warrant against two other persons related to the case. Many activists are of the opinion that the arrests are allegedly politically motivated and the government is silencing its critics. But it is just one side of the argument.

What is Tool Kit?

  • A toolkit is a set of essential guidelines or suggestions to get something done. The contents of the tool kit differ depending upon the activity. For example, the recent self-regulation tool kit by OTT platforms for self-regulation. 
  • The tool kit is also released by governments. For example, the Department for Promotion of Industry and Internal Trade (DPIIT) has a toolkit for better implementation of IPR (Intellectual Property Right) in India.
  • A tool kit is also used during protests. It contains pieces of information to help the protesters to promote their campaign and to become  popular as much as possible.
  • It was used more actively in Wall Street protests of 2011, Hong Kong protests of 2019, and anti-CAA protests across India.
  • During the anti-CAA protests, a toolkit suggested places to hold protests, Twitter hashtags to use, and other similar guides were shared on social media.

What is the Greta Thunberg toolkit case?

Greta Thunberg is an 18-year-old Swedish environmental activist. She shared a toolkit on Twitter during the anti-farm law protests. The tool kit suggested few activities like creating a Twitter storm and protesting outside Indian embassies, etc. Due to severe criticism, the activist deleted the tweet within a few minutes. However, it already got circulated on social media.

The Cyber Cell of Delhi Police filed an FIR against unknown people for creating and spreading the toolkit. The Police also claimed the Poetic Justice Foundation (PJF) as a key conspirator. (Poetic Justice Foundation is responsible for pro-Khalistani activities). The police also accused the PJF of waging a “social, economical and cultural war against India”.

The Delhi Police claimed a Climate Activist in India as the editor of “toolkit Google doc” and a “key conspirator” in the toolkit formulation and distribution. The Delhi Police arrested the activist and issued a non-bailable warrant against two other persons.

Previous such example:

The activists are claiming these arrests as politically motivated and an example of the government silencing its critics. These were,

  • Sitaram Yechury, a well-known politician
  • Yogendra Yadav, an activist and academic
  • Jayati Ghosh, an economist
  • Rahul Roy, a documentary filmmaker
  • Apoorvanand, a Delhi University professor.

What are the existing provisions for such arrest?

  1. The Government enacted the Information Technology (IT) Act 2000 for matters related to cybercrime and e-commerce. Based on the Act, the Government can punish for any crime committed through a computer or a network. The Act can charge foreigners also.
  2.  The Unlawful Activities Prevention Act of 1967. The Act aims to prevent the activities and associations involved in unlawful activities effectively. In 2019 the act was amended to include the provisions of designating an individual as a terrorist. The Law prescribes the death penalty or life imprisonment as maximum punishment.
  3. Sedition cases under IPC section 124A (Indian Penal Code). Sedition is defined as any action that brings or attempts to bring contempt or hatred towards the government of India. This section provides a maximum sentence of up to life imprisonment.
  4. Criminal defamation under section 499 of the IPC. This section defines defamation as a communication of a false statement that harms the reputation of an individual person, product, group, business, government, religion, or nation.
  5. Several states have also enacted a few specific laws to govern the criticisms. For example, the Draft Bill of Maharashtra’s Shakti Act has a stringent provision for offenders who post defamatory messages on social media.
Why government actions on activists are justified?
  1. Not all the critics got arrested under these laws. These laws have utility in combating anti-national, secessionist and terrorist individuals and organizations. Few highly publicized cases cannot be the example of politically motivated arrests.
  2. The laws were enacted to prevent the individual/organisation from indulging in contempt of government. This is essential for the smooth functioning of democracy.
  3. There are instances where activists are involved in destabilizing the democratically elected government. These laws act as a strong defence against such activities aimed to overthrow the government.
  4. Prevent the sovereignty of India: India is surrounded by countries like Pakistan, China. So India needs to prevent foreign influences in Indian policymaking. These laws aid the government in preventing undue foreign influences.

Judicial interventions on such cases in the past:

The Supreme Court in various instances regulated and restricted the politically motivated arrests but at the same time, the Court also punished the wrongdoers.

  1. In G. Narasimhan & Others vs T. V. Chokkappa (1972) case: the Supreme Court held that a person could be defamed only if there is a definite, identifiable and established evidence.
  2. In Fatma Bibi Ahmed Patel vs State of Gujarat (2008) case: the Supreme Court held that the registration of a case against a foreigner for an offence committed outside India was illegal. The court further held that the government had no jurisdiction for such offences.
  3. In K. T. M. S. Abdul Cader v. Union of India (1977) case: The Madras High Court accepted the extraterritorial jurisdiction of the Indian Parliament. However, the court also held that such law would be ineffective so long as the foreigner remains outside India.

So in conclusion, a foreigner can be dealt with the Indian law only if he is present within the territory. Under this only, Ajmal Kasab was tried in India for the 26/11 Mumbai attacks.

Further read Criminalisation of government criticisms

Challenges faced by the government in arresting activists:

  1. The government’s stringent action on criticisms attracts a confluence of such activists leading to various troubles. Like severe criticism of government policies and initiatives, false propaganda, etc.
  2. The stringent action of government is also bringing down India’s image in the international arena. Many times arresting a famous activist coincides with foreign government criticising Indian acts. For example, many countries explicitly issued statements against the arrest of CAA protesters and criticised India without consulting and analysing the Act.
  3. The stringent action on activists is also seen as a violation of the Fundamental Right. Like the rights to freedom of expression, association, and peaceful assembly.
  4. Global Human Rights Watch also mentions arrests on activists as a violation of Human Rights.
  5. It is also seen as a burden to Indian Judiciary and reducing the accountability of the police for their abuses.
  6. It can also create an image among supporters like they are free to commit abuses against communities who are in minority.

Suggestions:

  1. The government has to strike the midline between constructive criticism and criticisms destabilising India. So, to achieve that the government has to set up a committee to examine and supervise the process. Like
    • Designating individuals and organisations as a threat.
    • Investigation of cases in Fair and Just manner etc.
  2. The government has to train Law enforcement authorities to prevent the problem of misuse.
  3. The government can also try implementing the following steps. Such as
    • Barring the state governments, local bodies and other institutions (statutory functions) from filing numerous suits.
    • Providing lesser punishments such as corrections, apologies, and retractions, for  lesser form of crimes.

India is the largest democracy in the world. Right to dissent is considered as the lifeblood of any democracy. So, the government should restrict the politically motivated arrest. But at the same time checking the divisive forces is also essential for the government.

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Need of reforming the blocking powers of Government

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Synopsis: The government’s use of is blocking powers under Section 69A of Information and Technology Act 2000 (I.T Act) attracted criticism. There is a need to reforms the blocking powers to ensure free speech in Indian democracy.

Background:

  • Twitter suspended some user accounts based on Emergency restriction orders issued by Government under Section 69A. Govt. issued this order in wake of violence in farmer’s protest on 26th January in Delhi. 
  • The apparent reason behind such an order was the use of a controversial hashtag #ModiPlanningFarmerGenocide. It could have disturbed the public order.
  • However, later on, Twitter reactivated some of the accounts that didn’t violate Indian law. It attracted a sharp reaction from the Indian Government. A non-compliance order against Twitter and its employees was issued for violating Section 69A.
  • At present, a temporary peace has been established, after a meeting between Twitter officials and the government. 

Government’s power to block online users:

  1. Section 69A of I.T Act 2000:
    • It empowers the government to order an intermediary for blocking access to any information in the digital world.
    • The grounds for exercising the power are; threat to national security, public order, sovereignty and integrity of the country etc.
    • A punishment up to 7 years can be imposed on intermediaries who don’t comply with the government’s blocking orders.
  2. Blocking Rules 2009:
    • It tells the procedure which needs to be followed for blocking online content. As per these rules, the orders are subject to review by government committees. Further all orders and complaints should remain strictly confidential.
  • Issues with Blocking Power:
    1. First, the government can issue restricting orders without any evidence. It undermines the Fundamental Right to free speech.
    2. Second, the confidentiality of orders makes it very difficult for users to challenge it in open courts. There is no requirement of giving any reason or hearing opportunity is a clear violation of due process. 
    3. Third, These rules make censorship an easy and costless option. It places the burden of going to court and gathering the evidence on the user. 
    4. Fourth, The framing of section 69A is in such a way that protection of online free speech mainly depends on the courage shown by intermediaries against government’s blocking orders.

Way Forward:

  1. Reforms should take place in compliance with prior judgments of SC. In the Shreya Singhal case, the court allowed challenges to blocking orders in high courts. In the Kashmir Internet ban case, the court said any order restricting access to the internet should be put in the public domain.
  2. The government should block access to information only when an affected party is given a fair hearing in courts. Direct blocking should be permissible only in emergency situations.
  3. Blocking orders must be put in the public domain along with proper reasoning. The power of government to limit the flow of information needs to be rationalized.

At present the extent of free speech depends upon the capacity of multinational social-media platforms to face governments. Twitter managed to stand up against a clear case of overreach. However, other companies may not show similar courage, especially in cases of borderline overreach thereby threatening free speech. Thus, the demand to ensure free speech must come from citizens themselves. 

Posted in 9 PM Daily Articles, PUBLICTagged ,

What are the issues in government’s order to Twitter?

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Synopsis: The government ordered twitter to shut down user accounts connected with the farm protests. This order hampers fundamental rights and also reveals a complex relationship between the government and large platforms.

Introduction

The growing digitization of Indian society can be seen in the ongoing farmers’ protest. A new hashtag trends on Twitter for and against the farm laws or protests every day.

  • Twitter is quite significant in India despite a lower number of users as compared to Facebook or WhatsApp. It is because Twitter is the default social network for political leaders and foreign governments to make statements.
  • The government exercised its powers under Section 69A of the Information Technology Act to block user accounts critical of the farm bills. 
  • Suspended accounts are in a high number and include a diverse category of users from farm unions, activists, and press publications.

What are the issues in this decision?

The step is against the rights of the users who are not given reasons for the censorship. Secrecy impacts the public’s right to receive information, which is an essential part of the fundamental right to speech and expression.

  1. Firstly, the public has incomplete information as the actual text of the legal orders was not disclosed. This is an anti-democratic practice that results in unchecked growth of illogical censorship and also leads to a lack of trust. 
  2. Secondly, this outcome has been the failure of the Union executive and Supreme Court. Former framed the process for blocking websites in 2009 and included the secrecy provision; the later failed to examine it. 
    • For example, the court stated in Shreya Singhal, that a person whose website or account was blocked under section 69A could approach a court. However, accessing legal remedies is difficult when the direction for blocking is secret.
  3. Thirdly, several state governments are refusing to publish orders on internet shutdowns even after RTI is filed. 
  4. Fourthly, due to absence of any prior notice, users are not given an opportunity to present their defense. This is conflicting with the principles of natural justice.  This again goes back to the vagueness and the design faults in the process of how directions under Section 69A are issued.

The way forward 

  • In Anuradha Bhasin v. Union of India, the court was judging the constitutional acceptability of the telecommunications shutdown in Jammu and Kashmir. In its judgment, It gave a direction for pro-active publication of all orders for internet shutdowns by the government. 
  • Thus, the directions of blocking should be made public in other cases as well.

Conclusion 

  • Twitter refused to comply with directions by citing the policy of proportionality. This unconstitutional law is being applied to its maximum capacity. It is confusing that a government formed under the Constitution may be failing to fulfill its duties when other platforms that trade in our data for profit are ready.

 https://blog.forumias.com/polity/constitutional-bodies/

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Low conviction rate under “Unlawful Activities (Prevention) Act” (UAPA)

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What is the news?

Union Home Ministry has informed Rajya Sabha about the cases registered under the Unlawful Activities (Prevention) Act and Sedition(Section-124A).

Cases under UAPA:

  • Between 2016 and 2019, the total number of the persons arrested and convicted in the country under UAPA were 5,922 and 132 respectively. This means only 2.2 % of cases registered under the Act ended in convictions by the court.
  • The NCRB does not maintain this data on the basis of religion, race, caste or gender.

Cases under Sedition:

  • In 2019, as many as 96 persons were arrested for sedition (Section 124A IPC) but only two were convicted and 29 persons were acquitted.
  • The most cases of sedition in 2019 were registered in the States of Karnataka followed by Assam and J&K & Ladakh.

Click Here to Read about Sedition

 Unlawful Activities (Prevention) Act,1967:

  • It is primarily an anti-terror law – aimed at more effective prevention of certain unlawful activities of individuals and associations and for dealing with terrorist activities.
  • It was promulgated in 1967 to target secessionist organisations. It is considered to be the predecessor of laws such as the (now repealed) Terrorist and Disruptive Activities (Prevention) Act (TADA) and Prevention of Terrorism Act(POTA).

Key Provisions of the Act:

  • The Act assigns absolute power to the central government. It can declare an activity as unlawful, by way of an Official Gazette.
  • The act has the death penalty and life imprisonment as the highest punishments.
  • Under the act, both Indian and foreign nationals can be charged. It will be applicable to the offenders in the same manner, even if the crime is committed on a foreign land, outside India.
  • The investigating agency can file a charge sheet in maximum 180 days after the arrests. This duration can be extended further after information to the court.

2004 amendment:

  • The act was amended in 2004. It added “terrorist act” to the list of offences, to ban organisations for terrorist activities.
  • Till 2004, “unlawful” activities referred to actions related to secession and cession of territory. Following the 2004 amendment, “terrorist act” was added to the list of offences.

2019 amendment:

  • The amendment empowers the Central Government to designate individuals as terrorists on certain grounds.
  • It empowers the Director-General, National Investigation Agency (NIA) to grant approval of seizure or attachment of property when the case is under investigation by the agency.
  • It also empowers the officers of the NIA, of the rank of Inspector or above to investigate cases of terrorism in addition to those conducted by the DSP or ACP or above rank officer in the state.

Source: The Hindu

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Centre’s Powers under “Section 69A of IT Act”

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What is the News?
The Government of India has asked Twitter to follow Indian laws. The government has also expressed disappointment over partial compliance with its orders.

What was the issue?

  • The Ministry of Electronics and Information Technology(MeitY) ordered Twitter to block several Twitter accounts for posing a threat to law and order. The order was issued under Section 69A of the Information Technology(IT) Act.
  • On this, Twitter blocked several accounts. But very soon it reactivated several of them citing free speech and because it found the content newsworthy.

Government’s response:

  • The government has said that Twitter was free to formulate its own rules and guidelines. But the Indian laws which are enacted by the Parliament must be followed irrespective of Twitter’s own rules.
  • On free speech, the government has said that freedom of speech and expression is provided under Article 19 (1) of the Constitution of India.
  • However, freedom of expression is not absolute, and it is subject to reasonable restrictions as mentioned in Article 19 (2) of the Constitution of India.

Section 69A of the Information Technology(IT) Act:

  • When was it introduced? Section 69A of the IT Act was introduced by an amendment to the Act in 2008.
  • Powers: It allows the government to block public access to any intermediary in the interest of
    • Sovereignty and integrity of India
    • Defence of India
    • Security of the state
    • Friendly relations with the foreign States or
    • Public order or
    • Preventing incitement of any cognisable offence relative to the above.
  • Intermediaries: The intermediaries under the Act include; telecommunication companies, internet service providers, network operators, web-hosting services, search engines, payment gateways and other relevant portals and services.
  • Procedure: Section 69A provides the government with the power to block public access. But the procedure to do that is listed in the IT (Procedure and Safeguards for Blocking of Access of Information by Public) Rules, 2009.
  • Penal Provisions: The Act says prescribes punishment for any intermediary (internet platform) for failure to comply with the government direction. Punishment can be imprisonment for up to seven years and shall also be liable to fine.

Source: The Hindu

Posted in acts, bills and regulations, Daily Factly articles, daily news, Daily News Updates, Miscellaneous, PUBLICTagged ,

National security laws in India

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There are many laws aiding the government in the protection of national interests. They are

First, Sedition under section 124A of the IPC (Indian Penal Code). Sedition is defined as any action that brings or attempts to bring contempt or hatred towards the government of India. Sedition cases are punishable with a maximum sentence of life imprisonment.

SecondCriminal defamation under section 499 of the IPC. Defamation is defined as the communication of a false statement that harms the reputation of an individual person, group, product, business, government, religion, or nation.

Third, the government enacted the Information Technology (IT) Act 2000 for matters related to cybercrime and e-commerce. Under this act, the Government can punish any crime involving a computer or a network. The Act can charge Indian citizens as well as foreigners.

Fourth, The Unlawful Activities Prevention Act of 1967The Act aims to effectively prevent unlawful activities and associations involved. In 2019 the government amended the provisions of the Act to designate an individual as a terrorist. The Law prescribes a maximum punishment of death penalty or life imprisonment.

Fifth, Apart from these Acts several states have enacted specific laws to govern their security. For example draft bill of Shakti Act of Maharashtra has a provision for stricter punishment for offenders who post defamatory messages on social media.

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Criminalisation of government criticisms: Laws and issues

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Recently Bihar government decided to categorize defamatory and offensive social media posts against government officials as cybercrime. Bihar Police has issued a circular to implement this order.

This is not the first instance when Sedition laws and criminal defamation have been used to silence the critics of the government.

Examples of Government silencing critics:

First, As per the National Crime Records Bureau (NCRB), 70 people were accused of sedition in 2018. But only four cases actually ended in conviction.

Second, In August 2016, the court criticized the then Tamil Nadu Chief Minister J Jayalalithaa for misusing the criminal defamation law to “suffocate democracy” and, the court held that, “public figures must face criticism”.

Third, In May 2020 Madras High Court declared 28 criminal defamation proceedings filed by the Tamil Nadu government as invalid.

Fourth, the NCRB Report 2018 mentions, the conviction rate of offenders prosecuted under the Unlawful Activities Prevention Act was just 14.5% in 2015.

These are clear examples of government using sedition, Criminal defamation and other suits as a means of harassment.

What are the laws governing criticisms against the government?

First, Sedition under section 124A of the IPC (Indian Penal Code). Sedition is defined as any action that brings or attempts to bring contempt or hatred towards the government of India. Sedition cases are punishable with a maximum sentence of life imprisonment.

Second, Criminal defamation under section 499 of the IPC. Defamation is defined as the communication of a false statement that harms the reputation of an individual person, group, product, business, government, religion, or nation.

Third, The Government enacted the Information Technology (IT) Act 2000 for matters related to cybercrime and e-commerce. Under this act, the Government can punish any crime involving a computer or a network. The Act can charge India citizens as well as foreigners.

Fourth, The Unlawful Activities Prevention Act of 1967. The Act aims to effectively prevent unlawful activities and associations involved. In 2019 the government amended the provisions of the Act to designate an individual as a terrorist. The Law prescribes a maximum punishment of death penalty or life imprisonment.

Fifth, Apart from these Acts several states have enacted specific laws to govern the criticisms. For example draft bill of Shakti Act of Maharashtra has a provision for stricter punishment for offenders who post defamatory messages on social media.

What are the Judicial interventions on Laws governing criticisms?

First, In Kedarnath Singh vs State of Bihar case 1962, Court upheld the constitutional validity of Section 124A (Sedition). The Court mentioned, “citizen right to freedom of speech and expression does not include incite people to be violent against the government or with the intention of creating public disorder”.

Second, In Balwant Singh v State of Punjab case 1995, the Supreme Court held that mere sloganeering that evoked no public response did not amount to sedition.

Third,  The Supreme Court of India, in the Subramanian Swamy vs Union of India, 2014, upheld the constitutional validity of the IPC (Section 499 and 500). The court mentioned the fundamental right to live with dignity and reputation “cannot be ruined solely because another person can have his/her freedom”.

Fourth, In Shreya Singhal vs. Union of India 2015 case, the Supreme Court struck down Section 66A (this provision criminalizes sending offensive messages through a computer or other communication devices) of the Information Technology Act, 2000. The court also held that the provisions of section 66A have violated Right to freedom of speech and expression.

Why we need such laws in India?

First, These laws have utility in combating secessionist, anti-national and terrorist elements. Some highly publicized cases cannot be the reason to repeal section 124A, section 499 and UAPA.

Second, If contempt of court invites penal action, the contempt of government should also attract similar punishment for the smooth functioning of democracy.

Third, These laws provide stability to the democratically elected government. Sedition laws, Defamation laws and UAPA act as a strong defence against violence and illegal activities aimed to overthrow the government

Why the provisions have to be repealed?

First, These provisions are clear examples of a violation of the Right to Freedom of Speech and Expression. Right to question, criticize and change rulers is one of the fundamental ideas of democracy. Both the sections of IPC(124A and 499) and the provisions of UAPA are in direct conflict with the aforesaid Rights.

Second, IPC and Unlawful Activities Prevention Act have provisions that penalize “disrupting the public order” or “overthrowing the government with violence and illegal means”. These are sufficient for protecting the national integrity. There is no need for Section 124A and 499. It can be repealed.

Third, In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR). The ICCPR sets out internationally recognized standards for the protection of freedom of expression. However, the misuse of sedition, criminal defamation and UAPA is inconsistent with India’s international commitments.

Fourth, Even the UK (sedition law originated) and Australia have removed sedition laws. International bodies such as the UN had recognized the threat posed by criminal defamation laws.

Fifth, The criticisms if reach at right time to the government, then it can save a lot of resources, government machinery, etc.

Way forward:

There are certain ways to improve sedition, criminal defamation and the application of UAPA in India.

First, We have to educate the Law enforcement authorities to prevent the problem of misuse. The enforcement authorities might be trained regarding the application and non-application cases of sedition, criminal defamation and UAPA suits.

Second, the State has to follow the Parent-Child approach during the criticisms where raised. The Madras High court advocated this approach in May 2020.

Parent-Child approach: The state must act like it is the parent of all its citizens. Despite the insult (sedition or criminal defamation) by children (citizen), parents don’t discard their children quite easily. Like that State also accept the fact that public figures must face criticism.

Third, The Protection of Speech and Reputation Bill, 2016 in modified form can be enacted by the government. The Private member bill has certain important provisions such as

    • Setting the maximum claim limits and barring governments, local bodies and other institutions (statutory functions) from filing suits for defamation and sedition.
    • Providing punishments such as apologies, corrections and retractions, for a lesser form of crimes.

India is an open and liberal society, the largest democracy. But to secure national integrity, divisive forces have to be kept in check. So, it is necessary to retain the laws criminalising criticisms. But the wrongful enforcement and misuse have to be checked.

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What is Criminal Defamation?

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In India, criminal defamation falls under section 499 of the IPC. Defamation is defined as the communication of a false statement that harms the reputation of an individual person, group, product, business, government, religion, or nation.

Section 500 punishes the criminal defamation. The person who commits the crime can be punished with the imprisonment for a term up to two years, or fine, or both.

Section 499 of IPC also mentions exceptions to criminal defamation. The exception includes “imputation of truth” required for the “public good” and has to be published.

The Supreme Court of India, in the Subramanian Swamy vs Union of India, 2014, upheld the constitutional validity of the IPC (Section 499 and 500). The court mentioned the fundamental right to live with dignity and reputation “cannot be ruined solely because another person can have his freedom”.

Difference Between Civil and Criminal Defamation:
Criminal DefamationCivil Defamation
It is specifically defined as an offence under section 499 of the Indian Penal Code (IPC)It is not defined specifically, and it is based on tort law (A wrongful act, that can be remedied in civil court, usually through compensation)
Objective: It aims to punish a wrongdoer and also send a strong message to others not to commit such acts.Objective: It aims to provide compensation to redress the wrong-doing.
The defamation has to be established beyond a reasonable doubt to punish him/her under Section 499.Defamation can be awarded based on probabilities (the preponderance of the evidence).

 

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What is Sedition?

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In India, Sedition falls under section 124A of the IPC (Indian Penal Code). It is defined as any action that brings or attempts to bring contempt or hatred towards the government of India. Sedition cases are punishable with a maximum sentence of life imprisonment.

It categorises four sources of seditious acts: 

  • spoken words, 
  • written words, 
  • signs or 
  • visible representations. 

It is classified as “cognisable”(No need of Court warrant to arrest the person) and a “non-bailable” and “non-compoundable” offence.

History of Sedition in India:

Sedition laws were first enacted in 17th century England. Later it was inserted into IPC in 1870.

  1. The section was introduced initially to deal with increasing Wahabi activities between 1863 and 1870. These activities posed a challenge to the colonial government.
  2. Some of the most famous sedition trials of the late 19th and early 20th century involved Indian nationalist leaders.
    • The first among them was the trial of Jogendra Chandra Bose in 1891. He was the editor of the newspaper, Bangobasi. He wrote an article criticizing the Age of Consent Bill for posing a threat to the religion and for its coercive relationship with Indians.
    • It was also used to prosecute Bal Gangadhar Tilak (for his writings in Kesari) in 1897.
    • The other well-known case was the sedition trial of Mahatma Gandhi in 1922. Gandhi had called Sedition “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.
Judicial interventions on Sedition law:
  1.  In 1951, the Punjab High Court had ruled Section 124A to be unconstitutional. A similar ruling was passed in 1959 by the Allahabad High Court, which also concluded that it struck at the very root of free speech.
  2. Kedar Nath Singh v State of Bihar,1962:
    • The Supreme Court has upheld the constitutionality of Section 124-A (sedition) on the basis that this power was required by the state to protect itself.
    • However, it said that every citizen has a right to say or write about the government by way of criticism or comment. A citizen can criticise the government to the extent it does not incite people into violence against the government or with the intention of creating public disorder.
  3. P.Alavi vs State of Kerala,1982:
    The Supreme Court held that sloganeering, criticising of Parliament or Judicial setup does not amount to sedition.
  4. Balwant Singh v State of Punjab,1995:
    • The Supreme Court acquitted persons from charges of sedition for shouting slogans such as “Khalistan Zindabad”.
    • The court held that mere raising of slogans by two individuals alone cannot be sid as sedition. Further, it is also not considered as an attempt aimed to excite hatred or disaffection against the government.
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Issue of privacy and Personal Data Protection Bill 2019

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Synopsis– Present data-based technological development and Personal Data Protection Bill 2019 presents a unique challenge to the privacy of individuals.  

Introduction Personal Data Protection Bill 2019   –

By Puttaswamy v India (2017) case, privacy was established as a fundamental right. In other cases, MP Sharma v. Satish Chandra (1954) and Kharak Singh v. Uttar Pradesh (1962), as well, Privacy rights were upheld by SC.  

However, the development of global technology and implementation of the Aadhaar biometric programme in India have diluted the effect of these rulings. Now there is an urgent need to take a new look at the legal position of privacy in India. 

As depicted by Aadhaar based technology and global social media platforms, data has become a new oil i.e., it has become a tool for economic and political gain. It created a stream of data protection legislations, globally. India is also trying to join the league by Personal Data Protection Bill 2019 (DPB).   

In India, the Personal Data Protection Bill 2019 (DPB) is currently under consideration by a parliamentary committee. There are various issues in this bill that go against the privacy rights of individuals. 

Commercial and Political consequences of the Data Protection Bill (DPB): 

Data Collection related issues  

  • First- Bill will negatively impact the emerging technologies market of India dealing in creation, use, and sale of data that is valued at $1 trillion by 2025.  
  • Second- The bill requires digital firms who want to operate in India to obtain permission from users before collecting their data.  
  • Third– Bill also declares that users who provide data are, in effect, the owners of their own data and may control its usage or request firms to delete it.  
      • European internet-users are able to exercise a “right to be forgotten” and have evidence of their online presence removed. 
  • Fourth– The bill allows the government to use “critical” or “sensitive” personal data, related to information such as religion, to protect national interest. 
  • Fifth– Open-ended access to government could lead to misuse of data. Mr. B N Srikrishna, the chairmen of the drafting committee of the original bill, warned that government-access exemptions risk creating an “Orwellian state”.

Issues related to Establishment of Data Protection Authority (DPA)  

  • Bill aims to establish a Data Protection Authority (DPA), which will be charged with managing data collected by the Aadhaar programme. 
      • Authority will consist of chairperson and six committee members,  
      • Members will be appointed by the central government on the recommendation of a selection committee.
      • Members will be selected from senior civil servants, including the Cabinet Secretary. 
  • The government’s power to appoint and remove members at its discretion provides it an ability to influence the independence of agency.
  • Unlike similar institutions, such as the Reserve Bank of India or the Securities and Exchange Board, the DPA will not have an independent expert or member of the judiciary on its governing committee.
  • The UIDAI, for its part, has a chairperson appointed by the central government and reporting directly to the Centre.

Issues related to government use of data for surveillance

There are instances that suggest, India is acquiring some features of a surveillance state

  • As stated by the Union Home minister recently, police used facial recognition technology to identify people after the anti-CAA protests and the Delhi riots. 
  • There is a high possibility that police was matching the video offstage with the database of Election Commission and e-Vahan, a pan-India database of vehicle registration.

Issue related to safety of data 

There are instances of controversy where government has shown casual approach towards data safety and privacy of its citizens:  

  • First, Safety concerns were raised during aadhaar data collection, which stores biometric data in the form of iris and fingerprints which is a violation of right to privacy.  
  • Second instance was of Aarogya Setu contact-tracing app which was allegedly not able to protect the data provided by citizens.  

Way Forward 

  • The Data Protection Bill is a unique opportunity for India, a country with some 740 million internet users.  It would be a standard setter for privacy of individuals. 
  • Inclusive debate needs to take place in the Joint Parliament Committee and then in Parliament to examine the Data Protection Bill and promote transparency.
Posted in 9 PM Daily Articles, acts, bills and regulations, daily news, Daily News Updates, PUBLICTagged , ,

UN removes cannabis from ‘most dangerous drug’ category

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Source: Click Here

News: United Nations Commission on Narcotic Drugs(CND) has voted to remove cannabis and cannabis resin from Schedule IV of the 1961 Single Convention on Narcotic Drugs.

Facts:

  • Earlier Status: Cannabis was a part of both Schedule I and IV of the UN’s Single Convention on Narcotic Drugs — and while drugs in Schedule I can be used for medicinal purposes with state consent, drugs in Schedule IV are strictly controlled and their usage is a criminal offence.
  • Present Status: Now, both cannabis and cannabis resin will only remain on Schedule I which includes the least dangerous category of substances.
  • Status in India: Currently in India, the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985, illegalises any mixture with or without any neutral material of any of the two forms of cannabis – charas and ganja — or any drink prepared from it.
  • Significance: This decision has opened the door to recognising the medicinal and therapeutic potential of cannabis.

Additional Facts:

  • Cannabis: It is a generic term used to denote the several psychoactive preparations of the plant Cannabis sativa.According to WHO, cannabis is by far the most widely cultivated, trafficked and abused illicit drug in the world.
  • Commission on Narcotic Drugs: It is the UN agency mandated to decide on the scope of control of substances by placing them in the schedules of global drug control conventions.It was founded in 1946 and is headquartered in Vienna,Austria.
  • Single Convention on Narcotic Drugs of 1961: It is an international treaty to prohibit production and supply of specific (nominally narcotic) drugs and of drugs with similar effects except under licence for specific purposes, such as medical treatment and research.India is a party to the convention.

For further read Click here

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Decriminalising Marijuana in India

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This article is based on the two Indian Express articles (links Indian Express, Indian Express) published today and in October, 2020 respectively.

Why in News

  • US President Biden promises decriminalising the use of marijuana and also gave assurance to clearing out the past convictions related to it during his election campaign.
  • In India also Recent case of wide spread drug usage among Bollywood actors and actresses created a wide debate on whether to legalise Marijuana or not?

 What is Cannabis?

  • According to the World Health Organisation (WHO), cannabis is a generic term used to denote marijuana, hemp, weed etc and several other psychoactive preparations of the plant Cannabis sativa and other plants in Cannabis super family.
  • In general Cannabis family has two major components
  1. CBD (cannabidiol): It is a does not cause intoxication or psychoactive side effects and it is proven as effective chronic pain relief drug
  2. Delta-9 Tetra Hydro Cannabinol (THC) is the major psychoactive constituent in cannabis

The WHO says that cannabis is by far the most widely cultivated, trafficked and abused illicit drug in the world.

What is Marijuana and the other terms associated with cannabis?

Marijuana:

  • Marijuana has high THC levels and intense psychoactive effects
  • Hydrophonic weed refers to a soilless medium of cultivation of marijuana whereby instead of being grown in a field, it is grown at home without soil.

Hemp/Weed:

  • It has lesser THC levels and has low psycho active effects compare to Marijuana.
  • Generally, it is procured from the extract of the Marijuana leaves
  • It has wide level of medicinal benefits and industrial uses.
  • It is known as Ganja in Hindi.

Bhang:

  • It is an edible preparation of cannabis, which is ‘consumed either in the form of a drink or smoked’

‘Charas’ is the separated resin extracted from the cannabis plant.

The unpollinated female plants are called hashish. Cannabis oil (hashish oil) is a concentrate of cannabinoids

How the Cannabis/Marijuana is regulated in India?

  • Bhang, charas and ganja were regulated by the state excise departments and legally sold till 1985.
  • In 1985 The Narcotic Drugs and Psychoactive Substances (NDPS) Act has been enacted central level commercial cultivation of cannabis by production, possession, sale/purchase, transportation, interstate import/export or any other forms is punishable. The Act has been amended three times – in 1988, 2001, and most recently in 2014.
  • While CBD oil manufacturing is licenced under the Drugs and Cosmetics Act, 1940 can be legally used and sold. Some Indian websites do sell. But to purchase it one needs a prescription and many even facilitate it.
  • Similarly, Bhang, ganja and charas are enlisted in the Drugs and Cosmetics Rules, 1945 for use in Ayurveda, Siddha and Unani
Important Provisions of NDPS Act:
  • There are no restrictions on cultivation and procurement of cannabis for medical and scientific purposes.
  • The legislature left seeds and leaves of the cannabis plant out of the ambit of the NDPS Act.
  • The Act establishes Narcotics Control Bureau as the apex drug law enforcement agency and empowers them to oversee the implementation of of NDPS Act and also the other International conventions related to the it..
  • For holding a small quantity, the prescribed punishment is rigorous imprisonment for up to six months, fine of Rs. 10,000 or both.
  • For holding more than a small quantity but less than the commercial quantity, the prescribed punishment is rigorous imprisonment for up to 10 years, fine of Rs. 1 lakh, or both.
  • For holding commercial quantity, the prescribed punishment is rigorous imprisonment for up to 10-20 years, fine of Rs. 1-2 lakh, or both.
  • The Act covers three broad classes of substances:
  1. narcotic drugs, that is, those covered under the 1961 UN single Convention on Narcotic drugs;
    • Hashish, resin or charas, ganja, any mixture of charas or ganja is prohibited.
    • Bhang or the cannabis leaf is excluded from the act, but regulated through state excise laws.
    • leaf; derivatives include cocaine and any preparation containing 0.1% of cocaine
    • Opium: Poppy based products, preparations with 0.2% morphine
  2. psychotropic substances or those covered under the 1971 UN Convention on psychotropic substances as well as other psychoactive substances such as ketamine which are not yet classified under international conventions; and
  3. “Controlled substances” that are used to manufacture narcotic drugs or psychotropic substances, for example precursor chemicals such as acetic anhydride, ephedrine and pseudoephedrine.
  • ‘Manufactured substances’ category includes drugs such as Amphetamines, methamphetamines, LSD’s
What are the significant aspects of the Act?
  • The Act prescribes quantity-based punishment. The Act differentiates between small and commercial quantities of various drugs such as:
    • Heroin: 5 grams-250 grams
    • Cocaine: 2 grams-100 grams
    • Hashish or Charas: 100 grams-1 kg
    • Opium: 25 grams-2.5 kg
    • Ganja: 1kg-20 kg
  • The Act Criminalize people who use drugs and provide treatment for their relief from National Fund for the Control of Drug Abuse.

Why Marijuana should be legalised?

  • Historic significance of Marijuana in India:
    • In later Vedic literature Atharva Veda mentions Bhang plant as one of the 5 sacred plants and usage of Bhang since ancient times is common during the Hindu festivals of Holi and Mahashivaratri.
    • Indian Hemp Drugs Commission in 1894 recommended against complete ban and found the usage as ancient and religious. (For source)
    • In 1961, India opposed the inclusion of marijuana in the UN Convention on Narcotic Drugs, citing its role in social and religious customs
  • WHO study concluded Marijuana is not as unhealthy compared to alcohol and tobacco products.
    • It implies that the harms associated with marijuana use were greatly overestimated and society should respond to its use through progressive public health policies rather than ban.
  • Magnitude of substance use in India: This is a survey released by the Ministry of Social Justice and Empowerment in 2019, it states that about 2.8 percent of Indians aged 10–75 years (3.1 crore people) were using cannabis in one form or other. (for source)
  • Burden on Executive and Judiciary:
    • Narcotics Control Bureau investigate, interrogate and arrest people with small or miniscule amounts of marijuana and produce them in front of judiciary. It requires huge man power and state exchequer to control small or miniscule amounts of drug usage.
    • It leads to wide scope of corruption at lower level of executive which harass people even for petty crimes.
    • By legalising it India can release many young people landed in overcrowded jails whose only crime was using marijuana for fun and free up precious police time and go after the big drug mafias.
  • International wave of legalization of cannabis, based on its medicinal properties and commercial utilities Ex. Uruguay became the first country to fully legalize marijuana in 2013. Then Canada followed the path.Now many states in USA legalised marijuana.
Why Marijuana should stay Illegal? (Financial Express)
  • Short- and long-term side effects of Marijuana
    • Short term side effects may include a short-term memory loss, impaired motor skills, dry mouth and feelings of paranoia or anxiety.
    • In long term addiction, decreased mental ability and behavioural problems in children (when mothers used marijuana during pregnancy)
  • Marijuana is a gateway drug
    • A private study found more than 40% who used marijuana also used other ‘Hard’ drugs.
  • Against the Directive Principles of Article 47 which specifically calls for the prohibition of intoxicating drinks and drugs that are injurious to health
  • Against International Conventions such as 1961 and 1971 UN conventions against Narcotic drugs and Psychotropic substances respectively and also International Opium Convention’ (1925).
  • Difficulty in regulation: The fallouts of pharmaceutical product divergence into cattle market and drugs without prescription can continue in Marijuana too and put India’s younger generation at risk
  • Not have completely proven medical records. For Ex., there is no evidence that cannabis is beneficial when used in diseases such as Crohn’s disease, sleep disorder, glaucoma, etc.

Way forward:

Instead of banning, India at present needs a progressive public health policy which control their use and reduce the harms by focusing on health education, age restrictions for buying, taxation policies, limiting the dose of the active ingredients and access to counselling for those who wish to stop is the need of the hour.

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