1.SC questions States on cases under 66A

Citizens are still being booked under it, says plea

The Supreme Court on Monday asked the States to respond to a petition that stated citizens continued to get booked and prosecuted under Section 66A of the Information Technology Act for expressing themselves freely on social media.

Section 66A was declared unconstitutional by the Supreme Court in a judgment in 2015.

A Bench, led by Justice Rohinton F. Nariman, said the State governments, which controlled the police force, had to answer for the violation of the court judgment. The judiciary could be reined in from wrongly charging under Section 66A, but the cooperation of the States was necessary to put the brakes on the police from registering FIRs under Section 66A. The court said it intended to pass a wholistic order after hearing the States. It listed the case after four weeks.

On July 5 last, Justice Nariman found it “distressing”, “shocking” and “terrible” that people were still booked and tried under Section 66A even six years after the court struck down the provision as unconstitutional and a violation of free speech.

NGO People’s Union of Civil Liberties (PUCL), represented by senior advocate Sanjay Parikh and advocate Aparna Bhat, had drawn the court’s attention to the violations. Justice Nariman had authored the judgment, trashing Section 66A in a petition filed by law student Shreya Singhal, who highlighted cases of young people being arrested and charged under the ambiguous provision for their social media posts.

Background

The Supreme Court sought the Centre’s response to a plea alleging that despite the striking down of draconian Section 66A of the IT Act in 2015 by the apex court, police in various states were still invoking it in FIRs to clamp down on free speech on social media platforms.

• The petition said a recent working paper by the Internet Freedom Foundation demonstrated that pending prosecutions under Section 66A had not been terminated, and further it continued to be invoked by police across India in FIRs registered after the 2015 judgment.
• The petition said there had been a huge communication gap at the ground level and many officials may not even know about the Supreme Court verdict.
• It said trial courts and prosecutors were not actively implementing the verdict and the burden of terminating illegal prosecutions based on Section 66A fell on the accused persons.

Case

• Section 66A dealt with information related crimes in which sending information, by means of a computer resource or a communication device, which is inter alia offensive, derogatory and menacing is made a punishable offence.
• In Shreya Singhal v. Union of India judgement, Justices Rohinton F. Nariman and J. Chelameswar had observed that the weakness of Section 66A lay in the fact that it had created an offence on the basis of undefined actions: such as causing “inconvenience, danger, obstruction and insult”, which do not fall among the exceptions granted under Article 19 of the Constitution, which guarantees the freedom of speech.
• The court also observed that the challenge was to identify where to draw the line. Traditionally, it has been drawn at incitement while terms like obstruction and insult remain subjective.
• In addition, the court had noted that Section 66A did not have procedural safeguards like other sections of the law with similar aims, such as :
  • The need to obtain the concurrence of the Centre before action can be taken.
  • Local authorities could proceed autonomously, literally on the whim of their political masters.
• The judgment had found that Section 66A was contrary to both Articles 19 (free speech) and 21 (right to life) of the Constitution. The entire provision was struck down by the court.
• After that government had appointed an expert committee (T.K. Viswanathan committee) which proposed a legislation to meet the challenge of hate speech online.

2.A disconcerting picture behind the headline numbers

There is evidence to suggest that the PLFS data may underestimate the loss of earnings and fall in consumption

The third annual round of the Periodic Labour Force Survey (PLFS) data conducted during July 2019-June 2020 was released recently. The PLFS captures key indicators of the labour market such as the labour force participation rate (LFPR) — the proportion of population working or seeking work; worker-population ratio (WPR) — the proportion of population that is working; and the unemployment rate (UR) — the proportion of population in the labour force that is seeking but unable to find work. It also provides data on the earnings of different segments of workers.

The PLFS 2019-20 was expected to provide official estimates of the labour market distress that followed dwindling GDP growth and a lockdown following the novel coronavirus pandemic that brought several economic activities to a standstill. The data, however, show a decline in the unemployment rate to 4.8% in 2019-20 — the lowest in three years. While the headline numbers may seem pleasing, a detailed analysis paints a rather disconcerting picture.

Falling unemployment rate

The LFPR, WPR and UR are measured using two approaches — usual status and current weekly status. The usual status considers the activity of an individual over a relatively long period during the last 365 days, whereas the current weekly status is based on activity performed during the reference period of the last seven days.

The unemployment rate, as measured by the usual status, fell from 6.1% in 2017-18 to 4.8% in 2019-20. This is because even as the LFPR increased from 36.9% to 40.1%, the WPR increased from 34.7% to 38.2% during the same period. In other words, while there was an increase in the share of the population in the labour force over the last three years, there was an even higher increase in the share of those who were able to find work, and hence unemployment fell.

A fall in the unemployment rate would be heartening, except, it seems puzzling as it comes at a time of unprecedented economic distress. The quarterly GDP growth declined for successive quarters, sliding from 8.2% in January-March 2018 to 3.1% in January-March 2020, after which the economy contracted by 23.9% during April-June 2020.

Workforce composition

How were more people able to find jobs when economic activities were slowing down? The answer lies in the changing composition of the workforce.

The PLFS categorises the workforce into self-employed (which includes own account workers, employers and unpaid helpers in family enterprises); regular wage/salaried workers and casual labourers. Own account workers run small enterprises without hiring any labour but may take help from family members, while employers hire workers. Of all the worker categories, only the proportion of unpaid family workers has gone up significantly in the last three years. In fact, between 2018 and 2019, while the workforce increased by 2.9%, the proportion of all other employment categories in the workforce declined, except unpaid family helpers.

Over the same period, almost the entire rise in the workforce was accommodated by agriculture. Agriculture continues to perform the function of a sink — absorbing the workforce that cannot find remunerative employment elsewhere.

There is also a gendered dimension to the changing composition of the workforce. The category of unpaid family workers is dominated by women. The story of the declining unemployment rate can largely be explained by a movement of women from primarily being engaged in domestic work to agriculture and other petty production activities as unpaid family helpers, possibly in the hope of increasing family income in the times of unprecedented distress and lack of alternative employment opportunities.

The usual status is based on a loose definition of work that underestimates open unemployment. This is where the alternative measure of unemployment is relevant. Using the current weekly status approach, the unemployment rate was estimated to be 8.8%, unchanged during the last three years.

Impact of the lockdown

The PLFS survey for April-June 2020 overlapped with the national lockdown. The current weekly status unemployment rate in this quarter was 14%, and the urban unemployment rate was around 20%. Corrected for inflation, the average monthly income for the salaried increased by 2% in April-June 2020 over April-June 2019. The monthly earnings of the self-employed declined by 16% and the daily wage for casual workers declined by 5.6% over the same period. The real monthly per capita consumer expenditure declined by 7.6%.

The rise in the average income of salaried workers and the muted impact on consumer expenditure, as estimated from the PLFS, do not concur with other data for the lockdown period. Private final consumption expenditure declined by 26.7% in April-June 2020 over the same quarter in 2019. Numerous small-scale surveys also reported massive earnings loss during the lockdown. There is overwhelming evidence to suggest that the PLFS data may underestimate the loss of earnings and fall in consumption during the lockdown. This is a missed opportunity for the official survey to capture the labour market dynamics during the lockdown.

Strengthen statistical system

There is no official data on poverty after 2011-12 or on farm income after 2013, and no recent data on migrant workers. While the consumer expenditure data for 2017-18 was buried, the data on situation assessment of agricultural households are not yet released, despite being conducted between January-December 2019, before the latest PLFS.

Minor tweaks in future PLFS surveys can fill the data gaps. Currently, the PLFS captures incomes from agriculture and monthly consumer expenditure, but the questions on these aspects lack credibility. The predecessor to the PLFS, the National Sample Survey employment and unemployment surveys, collected data on consumer expenditure using a detailed schedule. There is no reason why the PLFS cannot do the same. Adding questions on costs and returns from cultivation and related activities can also capture more accurate data on agricultural incomes. Lengthening the questionnaire has its costs — but the costs of the absence of reliable and timely data on important policy-relevant indicators are far higher.

3.Criminalising welfare issues

Before the legislature adopts coercive legal measures, a welfare response should be considered

The Supreme Court recently issued notice on a writ petition on the condition that the petition’s prayer seeking a direction to “restrain beggars and vagabonds/homeless from begging on traffic junctions, markets and public places to avoid the spread of COVID-19 pandemic in all the States and Union Territories across India” be modified to focus on the rehabilitation of those forced to beg for a living. In doing this, the court rightly observed that being compelled to beg was a socio-economic issue that could not be remedied by directions of the kind originally sought. It required, instead, a welfare response from the state. This order points to the largely ignored nexus between coercive measures and welfare issues, which can be a useful guide to making and implementing criminal law in three ways.

What should be criminalised?

First, when decisions about criminalisation are being taken by the legislature, an important point of consideration should be whether the issue sought to be addressed might be better suited to a welfare response. Salient examples of welfare issues against which the coercive force of criminal law has inappropriately been deployed serve to illustrate the point. In holding the criminalisation of beggary under the Bombay Prevention of Begging Act, 1959 (as extended to the NCT of Delhi) unconstitutional, the High Court of Delhi, in Harsh Mander & Anr. v. Union of India (2018), had noted that the criminalisation of beggary served only to invisibilise beggars without doing anything to address the structural deprivations that drove people to beg. Similarly, the criminalisation of triple talaq by the Muslim Women (Protection of Rights on Marriage) Act, 2019, purportedly to ‘protect’ Muslim women, does nothing to address the structural gender inequality, social stigma, poor employment options, and lack of state support which actually cause the deprivations associated with divorce (and not just with triple talaq).

Second, socio-economic marginalisation and poverty may frequently make people susceptible to exploitation, whether through poorly paid/unpaid labour, trafficking and sex work, or indeed, begging. A criminal response to those who seek to take advantage of such vulnerability (but never the vulnerable themselves) might be appropriate, but it would amount to little more than lip service to the predicament of the exploited without accompanying welfare measures. In other words, it is important to ensure that pimps, brothel owners, and traffickers are held criminally liable for sexually exploiting a person. Equally important is to create alternative, well-paying and dignified employment, to make such employment accessible by imparting requisite education and skills, and to have social security nets to ensure that no person feels that sex work is their ‘least worst’ option. This is essential not only to prevent exploitative practices, but also to rehabilitate those who have been rescued (and/or those who would like an exit option) from such practices. To ‘rescue’ a sex worker is meaningless unless they have a legitimate way out of such work, an option that is materially (not morally) better for them.

Focusing on the welfare aspect of exploitative practices also sheds light on structural forms of impoverishment, and on who is most likely to be exploited as a result. It is, thus, largely those marginalised and discriminated against based on gender, caste, class and even age who occupy the ranks of beggars, sex workers, bonded labourers, and child labourers. Such a focus also exposes the culpability of the state and society in creating or enabling the vulnerabilities of those prone to exploitation. This recognition is reflected in the apt remarks of the High Court in Suhail Rashid Bhat v. State of Jammu & Kashmir and Others (2019), “Begging is also in fact evidence of the failure of the Government as well as the society at large to protect its citizens from debilitating effects of extreme poverty and to ensure to them basics of food, clothing, shelter, health, education, essential concomitants of the right to life ensured under Article 21 of the Constitution of India.”

Criminal law for whom?

Finally, when evaluating the function or necessity of a criminalisation response to something that is essentially or even partly a welfare issue, it is crucial to question whose interests the law does, in fact, serve. Does it help the vulnerable and/or the exploited, or is it a tool of persecution? Does it cater to the morality and sensibilities of the powerful? Does it hide the failures of the state? Or is it a quick fix that allows the government to abdicate and divert attention away from its welfare responsibilities? Only by following these interests can we, as citizens, hope to hold the state accountable in its use of the power to criminalise conduct.

Why in News

The Supreme Court has asked the Centre and four States to file their response on a plea seeking a direction to repeal the provisions criminalising begging.

• It has been argued in the plea that a person, who is compelled to beg due to certain circumstances, cannot be faulted for his actions.
• Recently, the Ministry of Railways has also proposed to decriminalise begging on trains or railway premises.

Key Points

• Plea’s Argument For Decriminalising Begging:
  • Earlier Judgment On Decriminalisation: The Delhi High Court which had decriminalised begging in the national capital said provisions of the Bombay Prevention of Begging Act, 1959, which treats begging as an offence cannot sustain constitutional scrutiny.
  • Criminalising Begging Against Right To Life: The provisions of the statutes criminalising the act of begging put people in a situation to make an unreasonable choice between committing a crime or not committing one and starving, which goes against the very spirit of the Constitution and violates Article 21 i.e. Right to Life.
  • Government’s Obligation To Provide Social Security: The government is mandated to provide social security to everyone and ensure that all had basic facilities, as embedded in the Directives Principles of State Policy (DPSP) in the Constitution.
    • The presence of beggars is evidence that the state has failed to provide basic facilities to all its citizens.
    • So instead of working on its failure and examining what made people beg, criminalising the act of beggary is irrational and against the approach of a socialist nation as embedded in the preamble of Indian Constitution.
• Plea’s Suggestion:
  • Fast Forward Beggars Rehabilitation Legislation: The plea has claimed that the Abolition of Begging and Rehabilitation of Beggars Bill 2018 had been introduced in the Lok Sabha but till now, this bill is not passed and is wedged in length parliamentary procedures.
    • It has resulted in thousands of poor facing more hardships because of present arbitrary statutes.
    • The legislation process must be fast forwarded.
  • Declare Some Provision As Void : The petition has sought directions to declare as “illegal and void” all provisions, except some sections, of the Bombay Prevention of Begging Act, 1959, Punjab Prevention of Beggary Act, 1971, Haryana Prevention of Begging Act, 1971 and Bihar Prevention of Begging Act 1951.
  • It has also sought to declare all other similar Acts prevailing in any part of the country as illegal.
• Bombay Prevention of Begging Act, 1959:
  • There is no central Act on beggary, many states and Union Territories have used the Bombay Act as the basis for their own laws.
  • The Act defines a “beggar” as anyone having no visible means of subsistence, and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms.
  • “Begging” under the Act includes soliciting or receiving alms in a public place, whether or not under any pretence of singing, dancing, fortune-telling, performing or offering any article for sale.
  • The Act gives the police the power to arrest individuals without a warrant. It gives magistrates the power to commit them to a detention centre for up to three years on the commission of the first “offence”, and up to 10 years upon the second “offence”.
    • Before that, it strips them of their privacy and dignity by compelling them to allow themselves to be fingerprinted.
  • The Act also authorises the detention of the family of the beggar, and the separation of children over the age of five.
  • Certified institutions or detention centres have absolute power over detainees, including the power of punishment, and the power to exact “manual work”. Disobeying the rules of the institution can land an individual in jail.

Number of Beggars In India

• According to the Census 2011 total number of beggars in India is 4,13,670 (including 2,21,673 males and 1,91,997 females) and the number has increased from the last census.
• West Bengal tops the chart followed by Uttar Pradesh and Bihar at number two and three respectively. Lakshadweep merely has two vagrants according to the 2011 census.
• Among the union territories, New Delhi had the largest number of beggars 2,187 followed by 121 in Chandigarh.
• Among the northeastern states, Asam topped the chart with 22,116 beggars, while Mizoram ranked low with 53 beggars.