The Evidence Is In: Freedom of Expression Is Dead in India

Two arrests over the past week from UP make it clear that this freedom no longer exists. Or rather, as Idi Amin Dada infamously once said, “There is freedom of speech, but we cannot guarantee freedom after speech.”

Listen to this article:

A version of this article first appeared in The India Cable – a subscribers-only newsletter published by The Wire and Galileo Ideas. You can subscribe to The India Cable by clicking here.

Is it a crime to criticise Prime Minister Narendra Modi or Uttar Pradesh chief minister Adityanath? Article 19 of the Constitution of India guarantees freedom of expression, subject only to a narrow range of ‘reasonable restrictions’ which do not remotely apply to criticism or satire. Yet, two arrests over the past week from UP make it clear that this freedom no longer exists. Or rather, as Idi Amin Dada infamously once said, “There is freedom of speech, but we cannot guarantee freedom after speech.”

The police in Colonelganj last week arrested five men for the crime of putting up a hoarding that showed Modi offering a cooking gas cylinder for Rs 1,105, the highest it has been. The poster included the hashtag #ByeByeModi in large letters as well as other text attacking the government’s Agnipath recruitment scheme.

Local BJP leaders who saw the poster immediately complained to the police and a case was registered  under Sections 153B (imputations, assertions prejudicial to national integration) and 505(2) (statements creating or promoting enmity, hatred or ill-will between classes) of the Indian Penal Code.

The first IPC section is meant to criminalise the targeting of a group on the basis of their religion, language, caste etc and cannot be stretched to cover criticism of an individual, even if he is the prime minister. The second section presupposes two or more “classes” between whom enmity is being promoted. No law degree or training is required to understand why these sections cannot possibly apply to the “crime” at hand.

As if the police case were not bad enough, major media platforms helped sustain the ridiculous claim that an actual offence had been committed. “In a major breakthrough,” the Times of India reported breathlessly, “a team of Colonelganj police on Monday evening arrested five persons, including owner of a printing press, and an event organiser on the charges of installing controversial hoarding with the title #ByeByeModi near Reserve police lines on Beli road on Saturday.”

The second case from UP this week is equally ridiculous. An 18-year-old schoolboy in Kannauj, Ashish Yadav was arrested by the police for posting an “offensive” image of Adityanath on social media. The image showed Adityanath with a milk bottle in his mouth and a shoe on his head. On the side were a series of laughing emojis.

On the left is Shankar’s famous cartoon from 1953 showing Nehru naked; on the right, Ashish Yadav’s caricature of Adityanath. Source: theheritagelab.in; Facebook

It is instructive to compare Yadav’s “offensive” image of Adityanath with Shankar’s celebrated 1953 cartoon of a naked Jawaharlal Nehru unsuccessfully imploring the United Nations. If you are a humourless, intolerant politician or policemen, you would find the Nehru depiction far more “offensive” than the schoolboy’s somewhat amateurish exertions. Far from filing a case against him, however, the then Prime Minister – who had famously said ‘Don’t spare me, Shankar’ – bore no grudge. In fact, he even “took [the cartoonist] with him on his visit to the USSR in 1955, marking his elevated stature in Nehru’s India,” Ritu Gairola Khanduri chronicles in her book, Caricaturing Culture in India,

But to come back to Yadav, his offence being even more heinous than the one in Colonelganj, the police in Kannauj booked him under additional IPC sections – apart from 153B and 505 (2), they also added 153A, 295A and section 66 of the Information Technology Act. Again, none of these sections apply even remotely. Yet, in a further sign of how seriously the poor boy’s ‘crime’ was being treated by the authorities, PTI quoted officials as saying  “District Magistrate Rakesh Kumar Mishra and Superintendent of Police Rajesh Kumar Srivastava reached the Talgram police station and quizzed the student in a closed room.”

There are plenty of other examples of such brilliant “breakthroughs” and high-level interrogations, from Uttar Pradesh and elsewhere, which testify to the death of freedom of expression. And the rot runs deeper than the thin skins of politicians or the even thinner respect for the constitution that the police have. Each of these arrests invariably receives the backing of the magistrates before whom the hapless ‘offenders’ are produced. Denial of bail in the first instance is more or less the norm, even in New Delhi, as Mohammed Zubair found out when first the duty magistrate and then the chief metropolitan magistrate insisted he be sent to custody for an innocuous tweet. By the time the sessions judge granted bail, the government had managed to rustle up half a dozen equally fraudulent cases and tasked a Special Investigation Team with prolonging his incarceration for as long as possible.

No matter how low down the judicial food chain she or he may be, a judge is the citizen’s first line of defence against the abuse of executive power. Take that away and what you have left is punishment by process. The abdication of judicial responsibility when fundamental rights are violated is the reason Indian democracy is withering on the vine.