A lot has changed since March 2015 when Section 66A of the Information Technology Act was in force and police officials were allowed to detain a person for allegedly posting offensive content on the Internet. A current study conducted by a cybersecurity firm, Norton, by Symmetric shows that eight out of 10 Internet users in India have faced online harassment in a form or another. The study also says that either the rules under the section or the approach of the authorities or both were responsible for increasing cases of online harassment.
An expert committee constituted to review the "good and bad" aspects of Section 66A has recommended amendments to the Indian Penal Code (IPC), the Code of Criminal Procedure and the Information Technology Act to deal with hate speech cases and the increasing number of harassment cases online. There was demand for reintroducing Section 66A but the committee headed by former Law Secretary and Lok Sabha Secretary General T K Viswanathan has suggested improving the current rules under various sections of the law.
On December 22, 2008, "Section 66A", an amendment to the IT Act, was passed in the Lok Sabha. The amendment in the Act was enacted without any debate or objection by political parties that ended up affecting so many lives in the country that the Supreme Court held it unconstitutional in March 2015. The section empowered the police to make arrests based on their subjective discretion about what could be “offensive” which led to the arrest of many people for posting content deemed to be “allegedly objectionable” on the Internet. As there was a constant misuse using the section and innocent people were detained for posting their critical views against political parties, the SC considered it a threat to the Freedom of Speech right and struck down the law.
Taking a cue from the proposition of the 267th Report of the Law Commission of India on Hate Speech, the panel constituted by the Union Government after the historic decision of the apex court, has drafted certain modifications to fill the perspective of content regulation on social media and other platforms containing matter of articulation of facts and harmful opinions. "We decided there was no need to reintroduce Section 66A, but we need to strengthen the IPC instead,” the Law Commission Member, Dr S Sivakumar, told the Indian Express.
NEW SECTIONS PROPOSED
The committee, in its report, has proposed the addition of Sections 153C and 505A in the IPC prohibiting incitement to hatred and causing fear, alarm or provocation of violence in some instances. These Sections include the terms onto which a person or a group of persons would be termed guilty. Both of these sections include a fine of Rs 5,000 or two years’ jail or both as a punishment.
The panel noted the barriers during an investigation and the lack of a quick and smooth procedure for the takedown of malicious online content and thus proposed the insertion of two new provisions, namely Sections 25B and 25C in the Code of Criminal Procedure 1973. Under these two parts, the post of a State Cyber Crime Coordinator and a District Cyber Crime Cell are to be created with a view to creating a cadre of trained cyber experts.
State Cyber Crime Coordinators will be appointed by State Governments equivalent to the rank of an Inspector General of Police or an upper grade. These officers will oversee the functioning of District Cyber Crime Cells and coordinate with Cyber Crime Coordinators of other States.
If District Cyber Crime Cells are set up, they will assist in the investigation of offences under the IT Act or involving computer and electronic media under the Indian Penal Code or any other law. These cells will consist of heads equivalent to the rank of Deputy Superintendent of Police. Also, these cells will include at least three experts in information technology, mobile telephony, digital forensics, cyber law or such other laws.
AMENDMENTS TO IT ACT
Though the expert committee has denied reintroducing Section 66A, other Sections of the IT Act need to be amended as per its suggestions.
As per Section 78 of the IT Act, officers of the rank of Inspector and above are allowed to investigate offences under the law. The committee has shown interest in not limiting the investigating approach up to Inspectors only as young police officers, who are directly recruited at the level of Sub-inspectors, are better equipped and trained to investigate cyber offences. Therefore, an amendment to Section 78 has been suggested to authorize a police officer not below the rank of Sub-inspector, assisted by a District Cyber Crime Cell, to investigate any offence committed under the IT Act 2000.
Further, the committee has stated that “representatives of the Ministry of Women and Child Development stressed upon re-introducing a renovated Section 66A within the IT Act, incorporating suitable changes”. But other members of the committee advocated the line that with the IT Act being “commercial in nature,” it was necessary for an Act invoking punishment to amend the Indian Penal Code.