Linking PAN with Aadhaar – Update from the Supreme Court Hearing (Day – III)

In the on-going case challenging the constitutionality of Section 139AA of the Income Tax Act (‘IT Act’), the petitioners concluded their arguments today. Our coverage of the arguments made over the last two days can be found here and here.

Today, the petitioners’ counsel elaborated on the concept of informational self-determination, as propounded by the German Federal Constitutional Court in the landmark Census decision of 1983.[1] Relying on three scholarly pieces[2], he explained that informational self-determination stemmed from the fundamental rights of human dignity and personal liberty. Collectively, these two rights formed the constitutional right to personality under the German legal framework. Informational self-determination was therefore not just a necessary condition for the free development of one’s personality, but also an essential element of a democratic society. He argued that irrespective of whether this was a constitutional value under the Indian framework, it was a legitimate value and concern for the petitioners before the Court.

The petitioners, and others who object to the Aadhaar project must have the right to informational self-determination to not give their personal information to private entities empanelled by the Government. The counsel argued that UIDAI’s enrolment process was through a network of private entities and reiterated that more than 34,000 had been blacklisted for various reasons. This, in his view established the lack of control exercised by the government during the enrolment process. Further, he relied on UIDAI’s Handbook for Registrars[3] to show that even registrars (who may be state governments, or other public or private entities) are at liberty to retain biometrics and use them for other purposes. In his view, this represented a complete destruction of personal autonomy. He argued that the IT Act could not compel him to part with his biometrics under such circumstances.

The second main ground advanced by the petitioners’ counsel was ‘compelled speech’ as a violation of Article 19(1)(a). He distinguished giving demographic information to government authorities for a singular, defined purpose from information collection under Aadhaar. As per him, the state could not compel an individual to provide fingerprints and iris scans to private third parties. He cited Bijoe Emanuel v. State of Kerala (1986) 3 SCC 615 in support of this contention.

On proportionality, it was argued that the number of PAN cards for individuals (as per the Central Government’s figures) was 29 crore. When seen against the government’s figures for duplicates, this would only amount to 0.4% of all PANs. On the other hand, the intrusion caused by enrolling for Aadhaar would be tremendous.

The petitioner’s counsel reiterated his argument on the legislature lacking competence to enact Section 139AA. He stated that the doctrine of eminent domain was limited to land and could not be extended to one’s body, except under narrowly tailored circumstances under legitimate circumstances. Therefore, the legislature lacked competence under Entry 82 of List I or any residuary power to enact a statute compelling parting with such intimate information.

While summing up, he also reiterated the argument on voluntariness, relying on Lord Atkin’s dissent in Liversidge v. Anderson (1942 AC 206) to emphasise that voluntary could never be interpreted as mandatory.

Finally, he urged the Court to strike down Section 139AA of the IT Act, or alternatively, read down the mandatory nature of the provision to make it voluntary. He also suggested that if the bench thought issues such as informational self-determination and compelled speech are too intertwined or if it appeared not appropriate to decide this matter independently, they may be referred to a larger bench. However, considering the irreversible consequences created by the 1st July deadline, he pressed for interim relief to stay the application of the Act or restrain the government from taking coercive steps for non-compliance. He added that protecting against invalidating one’s PAN would also be essential.

A third petition, which was subsequently filed, was also argued in Court today. The counsel for this petitioner (Mr. Dashrathbhai Patel) contended that Section 139AA was a ‘confused, self-defeating and self-destructive’ provision. He pointed out that the Explanation to the section assigned meanings to several terms as per their definitions under the Aadhaar Act. In such a circumstance, borrowing the definition of ‘enrollemt’ from the Aadhaar Act (where it was a voluntary exercise), made it impermissible to make it mandatory under the IT Act. Secondly, it was contended that the definition of demographic information under the Aadhaar Act specifically prohibited collecting information related to income. By linking PAN with Aadhaar, Section 139AA was facilitating the convergence of income information, in direct contradiction with the Aadhaar Act. He argued that what was impermissible directly could not be permissible in an indirect manner.

With this, the petitioners concluded their arguments before the Supreme Court today. The Central Government will respond on 2nd May (Tuesday).

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Disclosure: The author assisted the petitioners’ (Maj. Gen. Vombatkere and Mr. Bezwada Wilson) lawyers for today’s arguments.

[1] BVerfGE 65, 1.

[2] Bernd R. Beier, Genetic Testing and the Right of Self- Determination: The Experience in the Federal Republic of Germany 16(3) Hofstra Law Review 601-614 (1988); and Susanne Baer, Dignity, Liberty, Equality: A Fundamental Rights Triangle of Constitutionalism 59(4) University of Toronto Law Journal 417-468 (2009); Gerrit Hornung and Christoph Schnabel, Data protection in Germany I: The population census decision and the right to informational self-determination 25(1) Computer Law & Security Report 84–88 (December 2009).

[3] p. 16

Linking PAN with Aadhaar – Update from the Supreme Court Hearing (Day – II)

The petitioners resumed their arguments in the case challenging the constitutionality of Section 139AA of the Income Tax Act (‘IT Act’). This provision mandates individuals to link their Permanent Account Numbers (PAN) with their Aadhaar number. The background to the case and our report from yesterday’s hearing can be found here.

The counsel for Maj. Gen. Vombatkere and Mr. Bezwada Wilson continued his arguments today. Today’s hearing commenced with pointing out that despite the government’s assurances, the Aadhaar framework was extremely porous and ineffective. That 34,000 enrolment agencies have been blacklisted was pointed out to substantiate this claim. It was also pointed out that biometric technology itself is fallible – instances of a hacker successfully copying the German Defence Minister’s fingerprints and Angela Merkel’s iris scans were also pointed out. Further, replies to RTI queries showed that more than eighty-five lakh Aadhaar numbers had been de-activated due to biometric and demographic errors discovered later. The counsel also apprised the bench of Aadhaar numbers being issued to dogs, trees, chairs and ‘Coriander s/o pulao’. Pertinently, he outlined concerns about Aadhaar data being leaked by several state and central government portals. These facts were brought to the Court’s attention to emphasise that the petitioners were conscientious objectors to the Aadhaar project and had serious apprehensions regarding its robustness, among other issues.

With the court’s permission, the counsel then revisited the Supreme Court’s interim orders in the main challenge to Aadhaar. He pointed out that due to the reference order, and the difficulties associated with forming a large bench, the case had essentially been ‘canned’ or ‘put in deep freeze’. However, he emphasised that at each stage, judges had been conscious of the gravity of issues involved and had consequently protected citizens with strong interim orders. This was done to protect individuals’ interest and prevent a situation of fait accompli. Particularly with respect to the order passed on 15 October 2015, it was pointed out that the Central Board of Direct Taxes was also a party before the Court in that interim order.

The counsel highlighted the graveness of the issues involved. If allowed, Aadhaar was likely to fundamentally alter the relationship between the citizen and the state and put every citizen on an ‘electronic leash’, enabling real-time surveillance. The Attorney General objected to this line of argument, contending that issues of privacy must not be raised in this case, in light of the pending reference.

On the issue of Section 139AA specifically, it was prayed that the provision must either be struck down or read down to make it voluntary. The submission was that the scheme of the Aadhaar Act was purely voluntary – it created a right to enrol for Aadhaar, but imposed no duty to do so. Reading sections 3 and 7 of the Act, he argued that in addition to being purely voluntary, the only detriment could be the denial of a benefit or service. Since paying tax was neither, one could not be compelled to part with their biometrics. He also argued that the Act and the enrolment process contemplated free and informed consent. When viewed in this light, the mandatory nature of Section 139AA was in direct collision with the scheme of the Aadhaar Act. Justice Bhushan interjected pointing out that the scheme of both statutes was different, and that made the legislation under challenge permissible. To this, it was submitted that a voluntary scheme could not be grafted onto the IT Act as a mandatory provision.

To support this contention further, it was contended that converting a right into a duty amounted to a colourable exercise of legislative power. Further, being coerced to enrol for a scheme that is essentially voluntary negates consent, rendering the legislation unworkable.

The petitioners’ counsel then apprised the Court regarding the penal consequences that would arise in the event of non-compliance with Section 139AA. These included higher Tax Deducted at Source (TDS), a penalty for failure to furnish income and a fine of Rs. 10,000 for not possessing a PAN card. Further, disabilities associated with not having a PAN under Section 114B were reiterated. On being queried by the bench whether PAN being mandated was the same as any other alternative (such as Aadhaar), it was argued that Aadhaar was intrusive to an unprecedented level. PAN, on the other hand, was not intrusive to one’s body. Routine transactions such as opening a bank account or purchasing a motor vehicle should not me made contingent on parting with biometrics.

The bench also quizzed the petitioners on the issue of giving up biometrics for passports and other similar circumstances. The counsel responded distinguishing such circumstances, arguing that in certain limited situations, such identification might be legitimate and necessary. This would be different from Aadhaar, where biometric authentication would become ubiquitous. Other circumstances would include identifying prisoners. Additionally, such information would be stored locally and only used for a limited purpose.

It was also argued that under Section 30, the Aadhaar Act itself defined biometrics as sensitive ‘personal’ data or information. Reference was also made to Section 43A of the Information Technology Act to emphasise that ‘personal’ information is of, and belongs to a person. Being intimate parts of the body, biometrics could not be considered a dominion of the state. Reliance was also placed on On Jurisprudence by Salmond and the Oxford Handbook on Jurisprudence and Philosophy of Law to highlight that the right of bodily integrity included ‘exclusive possession and use of his or her own body as against everyone else’. The petitioner’s counsel went on the state that the Indian Constitution does not establish a totalitarian state but creates a state that is respectful of individual liberty and freedoms. Drawing from the preamble and emphasizing on the idea of a limited government, he said that the Indian Constitution is ‘not a charter of servitude’.

The petitioner’s counsel took the Court through a host of judgments for the proposition that the right to life extended to a right to protect one’s body and identity from harm. He cited landmark judgments such as National Legal Service Authority v. Union of India and Others (2014) 5 SCC 438 and Sunil Batra v. Delhi Administration and Others (1978) 4 SCC 494 to emphasise that personal liberty went beyond mere animal existence. He also touched on the context of bodily integrity, informed consent and self-determination as essential facets of Article 21, read with Articles 14 and 19.

As a final argument, it was argued that the object of the statute itself was discriminatory. Section 139AA discriminates between a homogenous class of assessees – individuals willing to part with biometrics to enrol for Aadhaar and those who’re unwilling to do so. The provision unreasonably discriminates against the latter by subjecting them to grave penal consequences, given that both categories are willing tax payers. A voluntary scheme could not, and should not deprive individuals of their choice.

The petitioners’ counsel also briefly touched upon the concept of ‘informational self-determination’ and argued that the state did not have any imminent domain regarding one’s body. Parting of sensitive features such as biometrics should be subject to one’s control and consent.

Arguments on behalf of the petitioners are likely to be concluded tomorrow. The Attorney General, representing the Central Government, is likely to advance arguments on Tuesday (May 2).

Linking PAN with Aadhaar – Update from the Supreme Court Hearing (Day – I)

The petitions challenging the constitutionality of Section 139AA of the Income Tax Act (‘IT Act’) came up for hearing before the Supreme Court today. Section 139AA makes it mandatory for individuals to quote their Aadhaar number when applying for a Permanent Account Number (PAN) as well as to file income tax returns. Section 139AA(2) stipulates that failure to intimate the Aadhaar number would automatically invalidate one’s existing PAN. Further, not linking the two also creates a legal fiction by which the provisions of the Act would apply ‘as if the person had not applied for the allotment of the PAN’.

Passed in March 2017, this IT Act amendment comes in the backdrop of several pending petitions challenging the constitutional validity of the Aadhaar project. Since 2013, the Supreme Court has passed multiple interim orders directing that Aadhaar remain purely voluntary till the pendency of these petitions. In August 2015, the Supreme Court had referred these matters to a larger bench, citing ambiguity in the Court’s jurisprudence on the fundamental right to privacy. Almost two years later, this bench remains to be constituted.

This background is pertinent given that the petitioners were forced to limit their submissions to the issue of linking Aadhaar numbers with PAN. The pending reference effectively ended up acting as a bar to assail the IT Act provision on the basis of privacy issues associated with Aadhaar.

The challenge constitutes of two separate writ petitions, filed by different sets of petitioners. The first petition has been filed by Mr. Binoy Viswam and the second by (Retd). Maj. Gen. Vombatkere and Mr. Bezwada Wilson, who are also petitioners in the main challenge to the Aadhaar project.

Arguments Advanced on behalf of Mr. Viswam:

The counsel for Mr. Viswam primarily advanced two arguments – that Section 139AA is unconstitutional as it violates and overrules several orders of the Supreme Court, and that it infringes Article 14 of the Constitution.

  • Section 139AA violates orders of the Supreme Court that were based on the Central Government’s undertakings – It was argued that by way of successive interim orders, such as on 23 September 2013, 11 August 2015, 15 October 2015 and 14 September 2016, the Court had directed that Aadhaar remain purely voluntary. The 15 October 2015 order specifically states that the Aadhaar scheme must remain voluntary ‘till the matter is finally decided by this Court one way or another’. Reference was also made to the Supreme Court’s recent order in Lokniti Foundation v. Union of India (6 February 2017), where it recorded the government’s submission that Aadhaar was voluntary for obtaining a telephone connection.

Based on these facts, it was argued that no one could be deprived of a service or benefit for want of an Aadhaar number. The bench observed that such undertakings could not preclude the Parliament from passing a law (such as that in issue). To this, the counsel responded stating that the state could not indirectly make Aadhaar mandatory under the IT Act while it remained voluntary under the parent Act, that is – the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (‘Aadhaar Act’). Section 7 of the Act, which stipulates that no benefit or service can be denied on the ground of not having an Aadhaar number, was read to support this contention.

Additionally, it was argued that these interim orders granted individuals a right – the right to not enroll for Aadhaar. This could not be taken away till the decided the matter conclusively. The counsel buttressed this contention citing precedent – Madan Mohan Pathak v. Union of India (1978) 2 SCC 50 and Indian Aluminium Co. v. State of Kerala (1996) 7 SCC 637, amongst others.

  • Section 139AA is violative of Article 14 because it unreasonably targets individuals out of all categories of assessees and for bring arbitrary – Besides individuals, entities such as companies, partnership firms, co-operative societies and trusts are also required to file returns on their income. As a result, it was argued that Article 139AA discriminated between assessees as it only adversely impacted individuals.

The argument advanced was that the twin test of permissible classification – that the classification is not based on an intelligible differentia, and that the differentia has no rational relation to the object sought to be achieved by the provision, were not satisfied in the present case. Given that the object of linking the Aadhaar and PAN is to address black money and weed out fakes, the provision fails to address nefarious activities carried through companies or trusts. This argument was later also advanced on the ground of proportionality.

This was met with some resistance by the bench, which observed that there was a natural distinction between natural and juristic persons and a distinction on that ground was not, discriminatory per se. It went on to observe that the law could be treated as a mere replacement of one system by another. The larger challenge to Aadhaar aside, it was difficult to assail the validity of a new or reformed system on this ground alone.

Counsel for Mr. Viswam then attempted to show that the provision is unconstitutional for being arbitrary. He submitted that such an unreasonable classification virtually resulted in ‘civil death’ for an individual. As per Section 114B of the IT Act, a PAN is necessary for eighteen essential transactions including opening a bank account and purchasing shares. If invalidated under Section 139AA(2), it would unreasonably restrict the right of individuals to carry on their business, as opposed to entities such as companies. Further, the individual would also be subject to additional penalties due to the legal fiction by which an individual is assumed never to have applied for a PAN. It was argued that this retrospective effect was highly prejudicial to individual assessees.

This was immediately objected to by the Attorney General, who argued that the legal fiction was not intended to be retrospective and would only apply from 1 July 2017, which is the deadline for linking Aadhaar with PAN.

To conclude, it was submitted that as per the data published by the Unique Identification Authority of India, enrolment rates for several states such were above 100%. This data was used to show that the problem of fakes or bogus cards existed even under the Aadhaar regime.

Post lunch, the counsel for (Retd.) Maj. Gen. Vombatkere and Mr. Wilson began arguments. He outlined his prayers before the Court – that Section 139AA be struck down, or alternatively, be read down to make Aadhaar a voluntary requirement.

As a preliminary point, he argued that neither of the petitioners had enrolled for Aadhaar. Being parties to the petitions challenging the Aadhaar project, they were conscientious objectors to the entire scheme. He proceeded to outline the broader issues in the challenge, with a view to provide the judges with some context. His submission rested on the idea of autonomy and bodily integrity associated with biometrics such as fingerprints and iris scans. Arguing that the Indian Constitution guaranteed a free, democratic society, he stated that the state had no dominion over core elements on one’s body and identity. As a result, the state could not coerce citizens to part with this information as a condition or as a bargain for enjoying rights guaranteed to them.

The arguments on behalf of (Retd.) Maj. Gen. Vombatkere and Mr. Wilson will continue on April 27 and will build on the specific issue of Article 139AA. The Attorney General is also likely to make his submissions on behalf of the Union Government.

How (not) to get away with murder: Reviewing Facebook’s live streaming guidelines

Introduction

The recent shooting in Cleveland live streamed on Facebook has brought the social media company’s regulatory responsibilities into question. Since the launch of Facebook Live in 2016, the service’s role in raising political awareness has been acknowledged. However, the service has also been used to broadcast several instances of graphic violence.

The streaming of violent content (including instances of suicide, murders and gang rapes) has raised serious questions about Facebook’s responsibility as an intermediary. While it is not technically feasible for Facebook to review all live videos while they’re being streamed or filter them before they’re streamed, the platform does have a routine procedure in place to take down such content. This post will visit the guidelines in place to take down live streamed content and discuss alternatives to the existing reporting mechanism.

What guidelines are in place?

Facebook has ‘community standards’ in place.  However, their internal regulation methods are unknown to the public. Live videos have to be in compliance with ‘community standards’, which specifies that Facebook will remove content relating to ‘direct threats’, self-injury’, ‘dangerous organizations’, ‘bullying and harassment’, ‘attacks on public figures’, ‘criminal activity’ and ‘sexual violence and exploitation’.

The company has stated that it ‘only takes one report for something to be reviewed’.  This system of review has been criticized since graphic content could go unnoticed without a report. In addition, this form of reporting would be unsuccessful since there is no mandate of ‘compulsory reporting’ for the viewers.  Incidentally, the Cleveland shooting video was not detected by Facebook until it was flagged as ‘offensive’, which was a couple of hours after the incident. The company has also stated that they are working on developing ‘artificial intelligence’ that could help put an end to these broadcasts. However, they currently rely on the reporting mechanism, where ‘thousands of people around the world’ review posts that have been reported against. The reviewers check if the content goes against the ‘community standards’ and ‘prioritize videos with serious safety implications’.

While deciding if a video should be taken down, the reviewers will also take the ‘context and degree’ of the content into consideration. For instance, content that is aimed at ‘raising awareness’, even if it displays violence, will be allowed. However, content that is celebrating such violence would be taken down. To demonstrate, when a live video of civilian Philando Castile being shot by a police officer in Minnesota went viral, Facebook kept the video up on their platform, stating that it did not glorify the violent act.

 Regulation

Other than the internal guidelines by which Facebook regulates itself, there haven’t been instances of government regulators, like the United States’ Federal Communications Commission intervening. Unlike the realm of television, where the FCC regulates content and deems material ‘inappropriate’, social media websites are protected from content regulation.

This brings up the question of intermediary liability and Facebook’s liability for hosting graphic content. Under American Law, there is a distinction between ‘publishers’ and ‘common carriers’. A common carrier only ‘enables communications’ and does not ‘publish content’. If a platform edits content, it is most likely a publisher. A ‘publisher’ has a higher level of responsibility for content hosted on their platform, unlike a ‘carrier’. In most instances, social media companies are covered under Section 230 of the Communications Decency Act, a safe harbor provision, by which they would not be held liable for third-party content.  However, questions have been raised about Facebook’s role as a ‘publisher’ or ‘common carrier’, and there seems to be no conclusive answer.

Conclusion

Several experts have considered possible solutions to this growing problem. Some believe that such features should be limited to certain partners and should be opened up to the public once additional safeguards and better artificial intelligence technologies are in place. In these precarious situations, enforcing stricter laws on intermediaries might not resolve the issue at hand. Some jurisdictions have ‘mandatory reporting’ provisions, specifically for crimes of sexual assault. In India, under Section 19 of the Protection of Children from Sexual Offences Act, 2012 ‘any person who has apprehension that an offence…is likely to be committed or has knowledge that such an offence has been committed’ has to report such an offence. In the context of cyber-crimes, this system of ‘mandatory reporting’ would shift the onus on the viewers and supplement the existing reporting system. Mandatory provisions of this nature do not exist in the United States where most of the larger social media companies are based.

Similarly, possible solutions should focus on strengthening the existing reporting system, rather than holding social media platforms liable.

Supreme Court hears the WhatsApp-Facebook Data Sharing Case

The special leave petition against the Delhi High Court’s ruling upholding WhatsApp’s updated privacy policy came up for hearing before a bench of five judges today. This policy is contentious because it allows WhatsApp to share valuable personal information of its users, including phone numbers, contact lists and profile pictures, with its parent company Facebook. As reported earlier, today’s hearing was to determine whether a bench of five judges can hear the case and to fix a date for the hearing.

During the course of arguments, the petitioners’ counsel focused on the need for regulating platforms such as WhatsApp and Facebook. It was his contention that the High Court should not have relegated the matter to a simple issue of a private contract between a user and a company. Arguing that such a proposition was overbroad, he contended that the Telecom Regulatory Authority of India and/or the Central Government must form comprehensive regulations to guarantee the rights of individuals (including the right to privacy) using such services. To emphasise on the need for regulation, he took the court through WhatsApp’s privacy policy, outlining the nature and extent of information collected and shared by it.

The Attorney General interjected requesting the Court to adjourn the matter for a few months. It was his submission that the Centre was in the process of formulating a data protection framework to regulate private entities collecting personal data.

For WhatsApp, it was argued that the service is popular only because of its insistence on privacy. It was submitted that no part of the content of any message was shared with any third party. The counsels for WhatsApp and Facebook also questioned the setting up of a constitution bench to hear this case as according to them, the case lacked a question of constitutional importance.

In the order passed by the Court today, this opposition to setting up a bench of five judges to hear the matter was recorded. However, Justice Mishra went on to state that this contention would be addressed at the time of the final verdict, signifying the Court’s intention to go ahead with the matter. The petitioners have been requested to file their propositions (/questions of law) by the 24th of April 2017. The case will be taken up for hearing again on the 27th of April 2017.

Reviewing the Law Commission’s latest hate speech recommendations

Introduction

The Law Commission has recently released a report on hate speech laws in India. The Supreme Court in Pravasi Bhalai vs. Union of India  asked the Law Commission to recommend changes to existing hate speech laws, and to “define the term hate speech”. The report discusses the history of hate speech jurisprudence in India and in certain other jurisdictions. In addition, it stresses upon the difficulty of defining hate speech and the lack of a concise definition. In the absence of such a definition, certain ‘identifying criterion’ have been mentioned, to detect instances of hate speech. It also discusses the theories of Jeremy Waldron (the ‘dignity’ principle) and makes a case for protecting the interests of minority communities by regulating speech. In this regard, two new sections for the IPC have been proposed. They are as follows:

(i) Prohibiting incitement to hatred-

“153 C. Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe –

(a)  uses gravely threatening words either spoken or written, signs, visible representations within the hearing or sight of a person with the intention to cause, fear or alarm; or

(b)  advocates hatred by words either spoken or written, signs, visible representations, that causes incitement to violence shall be punishable with imprisonment of either description for a term which may extend to two years, and fine up to Rs 5000, or with both.”.

(ii) Causing fear, alarm, or provocation of violence in certain cases.

“505 A. Whoever in public intentionally on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe-

uses words, or displays any writing, sign, or other visible representation which is gravely threatening, or derogatory;

(i) within the hearing or sight of a person, causing fear or alarm, or;

(ii) with the intent to provoke the use of unlawful violence,

against that person or another, shall be punished with imprisonment for a term which may extend to one year and/or fine up to Rs 5000, or both”.

The author is of the opinion that these recommended amendments are vague and broadly worded and could lead to a chilling effect and over-censorship. Here are a few reasons why the recommendations might not be compatible with free speech jurisprudence:

  1. Three – part test

Article 10 of the European Convention on Human Rights lays down three requirements that need be fulfilled to ensure that a restriction on free speech is warranted. The Law Commission report also discusses this test; it includes the necessity of a measure being ‘prescribed by law’, the need for a ‘legitimate aim’ and the test of ‘necessity and proportionality’.

Under the ‘prescribed by law’ standard, it is necessary for a restriction on free speech to be ‘clear and not ambiguous’. For instance, a phrase like ‘fear or alarm’ (existing in Section 153A and Section 505) has been criticized for being ‘vague’. Without defining or restricting this term, the public would not be aware of what constitutes ‘fear or alarm’ and would not know how to comply with the law. This standard has also been reiterated in Shreya Singhal vs. Union of India, where it was held that the ambiguously worded Section 66A could be problematic for innocent people since they would not be aware as to “which side of the line they fall” towards.

  1. Expanding scope to online offences?

The newly proposed sections also mention that any ‘gravely threatening words within the hearing or sight of a person’ would be penalized. Presumably, the phrase ‘within the sight or hearing of a person’ broadens the scope of this provision and could allow online speech to come under the ambit of the IPC. This phrase is similar to the wording of Section 5 (1) of the Criminal Justice (Public Order) Act, 1986[1] in the United Kingdom, which penalizes “harassment, alarm or distress”. Even though the section does not explicitly mention that it would cover offences on the internet, it has been presumed to do so.[2]

Similarly, if the intent of the framers of Section 153C is to expand the scope to cover online offences, it might introduce the same issues as the omitted Section 66A of the IT Act did. Section 66A intended to penalize the transmission of information which was ‘menacing’ and also which promoted ‘hatred or ill will’. The over-breadth of the terms in the section led to scrapping it. Another reason for scrapping the section was the lowering of the ‘incitement’ threshold (discussed below). Even though the proposed Section 153C does not provide for as many grounds (hatred, ill will, annoyance, etc.), it does explicitly lower the threshold from ‘incitement’ to ‘fear or alarm’/’discrimination’.

  1. The standard of ‘hate speech’

 The report also advocates for penalizing the ‘fear or alarm’ caused by such speech, since it could potentially have the effect of ‘marginalizing a section of the society’. As mentioned above, it has been explicitly mentioned that the threshold of ‘incitement to violence’ should be lowered and factors like ‘incitement to discrimination’ should also be considered.

The Shreya Singhal judgment drew a distinction between ‘discussion, advocacy and incitement’, stating that a restriction justifiable under Article 19(1) (a) of the Constitution would have to amount to ‘incitement’ and not merely ‘discussion’ or ‘advocacy’. This distinction was drawn so that discussing or advocating ideas which could lead to problems with ‘public order’ or disturbing the ‘security of the state’ could be differentiated from ‘incitement’ which establishes more of a ‘causal connection’.

Similarly, if the words used contribute to causing ‘fear or alarm’, the threshold of ‘incitement’ would be lowered, and constitutionally protected speech could be censored.

Conclusion

Despite the shortcomings mentioned above, the report is positive in a few ways. It draws attention to important contemporary issues affecting minority communities and how speech is often used to mobilize communities against each other. It also relies on Jeremy Waldron’s ‘dignity principle’ to make a case for imposing differing hate speech standards to protect minority communities. In addition, the grounds for discrimination now include ‘tribe’ and ‘sexual orientation’ amongst others.

However, existing case laws, coupled with recent instances of censorship, could make the insertion of these provisions troubling. India’s relationship with free speech is already dire; the Press Freedom Index ranks the country at 133 (out of 180) and the Freedom on the Net Report states that India is ‘partly free’ in this regard. The Law Commission might need to reconsider the recommendations, for the sake of upholding free speech. Pravasi Bhalai called for sanctioning politicians speeches, but the recommendations made by the Law Commission might be far reaching and the effects could be chilling.

 

[1] Section 5- Harassment, alarm or distress.
(1)A person is guilty of an offence if he—
(a)uses threatening or abusive words or behaviour, or disorderly behaviour, or
(b)displays any writing, sign or other visible representation which is threatening or abusive,
within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

[2] David Wall, Cybercrime: The Transformation of Crime in the Information Age, Page 123, Polity.

Censorship & certification – Outlining the CBFC’s role under law

The Central Board of Film Certification (CBFC) functions as the primary body certifying films for public exhibition in India. It is guided by the Cinematograph Act, 1952, and various rules and guidelines in determining the nature of certification to be granted to a film. However, over the past few months, reports about the CBFC’s alleged overreach – moving from certification of films to moral policing, for instance, by denying certification to films which address LGBTQ issues – have made the news.  This post outlines the legal framework within which the CBFC operates and discuss the prospects for change within this framework.

The CBFC was constituted under the Cinematograph Act, 1952 (Act), which aims to provide for the certification of cinematograph films for exhibition. Specifically, the CBFC was set up for the purpose of ‘sanctioning films for public exhibition’. The law however, also allows the CBFC to require modifications to be made to a film before providing such sanction / certification.

Over time, the CBFC has increasingly used this power to direct cuts in films for various reasons, leading to it being commonly referred to as the ‘censor board’. In recent months, the CBFC has stirred up controversy in relation to certification (or the lack thereof), of films with subject matter ranging from feminism / women’s empowerment and LGBTQ issues, to the Indian government’s demonetisation drive. The increasing possibility that a film will not even be granted certification for public exhibition, has led to fears that self-censorship will become a norm.

This fear seems to have permeated into the online video streaming industry already. Today, it isn’t clear whether streaming service providers are required to abide by the certification norms under the Act. While streaming platforms differ in their approach, and some providers choose to stream unedited i.e. ‘un-censored’ content, others are choosing to make only certified versions of films available online. There have also been controversial claims of service providers choosing to edit / censor content beyond the requirements of the CBFC.

The legal framework within which the CBFC operates is outlined below.

As described above, the CBFC is the sanctioning body which certifies films for public exhibition. The Act also allows for the setting up of regional centers or ‘advisory panels’ to assist the CBFC in its functions.

The Act provides that any person who wishes to exhibit a film should make an application to the CBFC for certification. The CBFC may (after examining the film, or having it examined):

  • sanction the film for unrestricted public exhibition, subject to requiring a caution to be provided stating that parents / guardians may consider whether a film is suitable for viewing by a child if required (i.e. grant a U or UA certificate)
  • sanction the film for public exhibition restricted to adult viewers (i.e. grant an A certificate)
  • sanction the film for public exhibition restricted to members of a certain profession or class of persons based on the nature of the film (i.e. grant an S certificate)
  • direct that certain modifications are made to the film before sanctioning the film for exhibition as described above, or
  • refuse to sanction the film for public exhibition.

The Act, as well as the Cinematograph (Certification) Rules, 1983, also provide detailed procedures for the appointment of members of the CBFC and the advisory panels, and appellate bodies, applications for certification, and appeals to the decision of the CBFC. The Act also provides for revisionary powers of the Central government in relation to the decisions of the CBFC.

In addition to the above, the Act provides principles on the basis of which the CBFC may refuse to certify a film – namely, “if a film or any part of it is against the interests of the sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality, or involves defamation or contempt of court or is likely to incite the commission of an offence”.

These principles are further supplemented by the certification guidelines issued by the Central Government in 1991, in accordance with the powers granted to it under the Act.

These guidelines provide five objectives for film certification under the Act: (a) the medium of film remains responsible and sensitive to the values and standards of society; (b) artistic expression and creative freedom are not unduly curbed; (c) certification is responsive to social changes; (d) the medium of film provides clean and healthy entertainment; and (e) the film is of aesthetic value and cinematically of a good standard.

In order to meet these objectives, the guidelines require the CBFC to ensure that films do not contain (a) scenes that glorify / justify activities such as violence, drinking, smoking or drug addiction, (b) scenes that denigrate women, (c) scenes that involve sexual violence or depict sexual perversions, or (d) scenes that show violence against children, among many others.

The language used in many of these guidelines, while perhaps well intended, is vague, and allows for wide discretion in certification subject entirely to the sensibilities of the individual members of the CBFC.

In 2016, the Ministry of Information & Broadcasting set up a committee to evolve broad, but clear guidelines/ procedures to guide the CBFC in the certification of films. The committee was headed by noted film maker Mr. Shyam Benegal. The committee, in its report, has expressed the view that it is not for the CBFC to act as a ‘moral compass’, and decide on what constitutes glorification or promotion of certain issues.

The committee’s report suggests that the only function of the CBFC should be to determine which category of viewers a film can be exhibited to. The committee’s report has suggested new guidelines, with the following objectives: (i) children and adults are protected from potentially harmful or otherwise unsuitable content; (ii) audiences (and parents / those responsible for children) are empowered to make informed viewing decisions; (iii) artistic expression and creative freedom are not unduly curbed in the classification of films; (iv) the process of certification is responsive to social changes.

The committee’s recommendations are yet to be implemented, however, news reports suggest that work is currently underway to modify the new guidelines suggested in the report.

It is interesting to note that the committee’s report does not address the issue of certification requirements for films available on online streaming platforms. In March 2016, the CBFC had suggested that it would require all or film-makers, producers, and directors in India to sign an undertaking stating that they would not share with / release ‘excised portions of a feature or a film to anybody’, including streaming service providers.An affidavit to this effect was accepted by the Punjab & Haryana High Court, which suggested in its order that such steps would be sufficient to ensure that ‘censored’ content would not be available. However, later that year, the Ministry of Information and Broadcasting confirmed in a response to an RTI application, that they do not intend to regulate or censor online content.