Freedom of Expression

The Last Two Years Have Shown That Free Speech is Expensive

A comprehensive Human Rights Watch report has detailed laws used by the Indian state to stifle free speech and instances of curtailment since May 2014.

A view of the protest in defence of Kanhaiya Kumar. Credit: Shome Basu

A view of a protest in defence of JNU students. Credit: Shome Basu

Issues concerning freedom of expression have become the talk of the town in India post-May 2014, however much the present central government might deny it. Were Indian laws that curb the freedom of expression less oppressive prior to May 2014? No. So what happened? Three examples of free speech being stifled post-May 2014 give a clearer idea: Priya Pillai, Teesta Setalvad and Umar Khalid.

What did they do? They spoke against the government or those in power. All three had to face the wrath of the state and polarised public opinion generated against them by the media and forces close to the government. Of course the state’s legal case against all three collapsed like a house of cards, as the judgments in Pillai’s writ petition, Setalvad’s application for anticipatory bail before the Bombay high court and the order granting bail to Khalid show.

But did those judgments give them the much needed space to express themselves and exercise their freedom of expression thereafter? No.

The onslaught continued. Indira Jaising, noted senior advocate who argued Pillai’s writ petition and then went on to speak at the release of Rana Ayyub’s book Gujarat Files, had to contend with a six month FCRA licence suspension of the Lawyers Collective (an NGO she has been running for over three decades). Lawyers Collective, which has done excellent work both in policy and through litigation in the areas of women’s rights and HIV/AIDS, is being hounded and treated like an economic offender. This is undoubtably to get back at Jaising for her vocal criticism of the present government. Pillai herself may have won the writ petition, but she did not get to go to the meeting she was headed for and will probably face further troubles as she continues her work. Khalid, a PhD student, has been demonised so much by the state and the media that even after he spent a couple of weeks in jail and was let out on bail, he cannot leave the JNU campus without security. Rana Ayyub could not get a publisher for her book and had to self publish.

Human Rights Watch report

Clearly all is not well for people who have an opinion against the central government. What were the transgressions on the part of the people mentioned in these examples? They spoke. Freedom of expression is very expensive today. In this scenario, the timing of the Human Rights Watch (HRW) report Stifling Dissent: The Criminalization of Peaceful Expression in India is just right.

It is a comprehensive report on existing Indian laws that stifle speech and dissent, also highlighting international regimes on the same areas of law. The report details how current British law treats the same subject, since some of our laws were created by the British prior to India’s independence or borrowed from their existing law. The report further goes on to talk about third world countries considered ‘less developed than India’ that are more progressive in this regard .

The HRW team deserves to be congratulated for putting together something so comprehensive on the subject. It is as good as a text book for law students on the freedom of expression. Some might argue that the material in the report is available in the public domain; but it is only a 116 pages and extremely useful, precise yet comprehensive. Every statement in the report (except for HRW’s views) is accompanied by a verifiable source.

At the release of the report, one of the members of the audience remarked that it may have been better if laws which stifle dissent dealt with in the report had been split up into: ‘offences against the state’ such as sedition, offences against the Official Secrets Act, Unlawful Activities Prevention Act Section 69A of the Information Technology Act etc.; ‘offences against private individuals’ like defamation, Section 295A of the IPC, 66A of the Information Technology Act etc.; offences that can be invoked both by the state and the individual like defamation, 295A, 66A, etc.; and laws that do not deal with speech, but their application could stifle free speech anyway like FCRA, movie bans under the Cinematograph Act etc.

The report comprehensively deals with most laws that are repeatedly used to stifle free speech and a majority of the glaring events of free speech violation between May 2014 and January 2016. Of course as a textbook it may have been better had it proceeded in the manner indicated by the audience member, but then it would have been very repetitive as there are overlaps. In the course of dealing with laws and events, it does take into consideration the mentioned categories in each case.

The report and HRW may seem to raise issues unpalatable to the present government, but it is pertinent that while the issues and events mentioned in the report pertain to the current government’s actions, the laws it deals with are those which have been passed by previous governments, some of them are even pre-constitutional. The application of and support for such oppressive laws by the present government is telling of its attitude towards the freedom of expression. This government fought to retain the draconian 66A of the IT Act and failed, and also argued successfully to keep defamation as a criminal offence. These issues were not necessarily high on the BJP’s list of priorities while in the opposition. Their application of laws that stifle speech, expression and dissent in the short period that they’ve been in power is alarming.

The report could, in the context of the banning of organisations, have discussed the Supreme Court ruling that held that mere membership of a terrorist organisation is insufficient to constitute a crime and that it should be accompanied by a violent act or incitement to violence. It also could have dealt in some detail with the recent judgement of the Supreme Court upholding the constitutional validity of defamation as a crime under the IPC, though it is mentioned. This is probably because it was pronounced just before the report was ready to go to print.

The point of the report is not only that voices against the government are being silenced, but also that the freedom of speech and expression means no voice should be silenced so long as it does not incite violence and that such speech should not be punished as a crime with incarceration. It’s not as if HRW supports or endorses the different voices the central or state governments are in disagreement with. The report merely tells you that all forms of speech and expression should be protected till such time as they do not incite violence. A jail term for writing or saying something albeit wrong or incorrect is neither proportionate nor civilised.

The report is absolutely right when it states that judges at all levels need to be trained in the concept of the freedom of expression. Notwithstanding the judgment of the Supreme Court of India in Kedarnath, which mandates the need for incitement to violence in order to make a case under section 124A of the IPC, police register cases under that section routinely even in the absence of any incitement to violence, as the recent JNU case would show. However, in the absence of a judgment like Kedarnath, it is quite possible that high courts and sessions and trial courts would not have granted bail under section 124A precisely due to a deficient understanding of the concept and contours of the freedom of expression.