Professional Documents
Culture Documents
Amit Malviya
02/12/2012
Nehrus legacy
May 28, 1951Part of the Indian press, said (Nehru), is dirty, indulges in vulgarity, indecency and falsehood. To teach it manners, Nehru proposed an amendment to Indias constitution that would impose severe restrictions on freedom of speech and expression. He asked for power to curb the press and to punish persons and newspapers for contempt of court, defamation and incitement to an offense. Nehru told Parliament: It has become a matter of the deepest distress to me to see the way in which the less responsible news sheets are being conducted . . . not injuring me or this House much, but poisoning the minds of the younger generation. Nehru said his measure was aimed at Communist and Hindu extremist agitation. His real targets: Atom, Current, Struggle and Blitz, four Bombay-published sensational weeklies which have consistently attacked Nehrus domestic and foreign policy, scurrilously attacked the U.S. [TIME]
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Issues..
Clause (a) of Section 66A uses expressions such as grossly offensive and menacing which are not only impossible to define but also highly subjective by individual standards. Clause (b) prescribes penalties for offences such as annoyance, criminal intimidation, insult and promoting hatred or ill- will between groups. Prescribing the same punishment for annoyance, as well as criminal intimidation, by bundling of disparate terms within the same clause is bound to lead to confusion and misuse. Moreover, most of these offences are already covered under various sections of the Indian Penal Code, 1860 (IPC). As a result, offenders often get booked under both the statues for the same offence.
Clause (c) of the section is meant to be an anti-spam provision but does not do justice to the requirement of either the users or the industry.
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Further..
In some cases, penalties for the same offences are higher in the IT Act as compared to those in the IPC. Thus, if an offence is committed through an electronic medium such as the internet, it would attract a higher penalty than otherwise. For instance, threatening someone with injury to their reputation through email attracts a penalty of three years imprisonment under the IT Act while the same offence when committed verbally attracts a penalty of two years imprisonment under the IPC (Section 503 and 506). This is inconsistent and wrong. The significance of this change goes beyond the increase in penalty. Under the Code of Criminal Procedure, 1973, offences punishable with a jail term of three years or more are cognizable. This means that a police officer can make the arrest without a warrant. This leaves more discretion to the police officer and makes the Section liable to misuse.
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Further..
Our Constitution accords high importance and sanctity to the freedom of speech and expression. Article 19(1) of the Constitution provides people the freedom to freely express their opinion while Article 19(2) empowers the legislature to impose 'reasonable' restrictions on this freedom. Reasonable restrictions can only be imposed in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. No other grounds qualify. Indias Supreme Court itself has upheld that restrictions on freedom of speech and expression should be narrowly and specifically defined, and it is pertinent to note that some other democracies use the principle of incitement to violence with clear and present danger as the defining guideline for such restrictions.
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What we need..
Move from First Amendment to the Indian Constitution "(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."; To the First Amendment to the United States Constitution Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
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