A quick look at the news in India, and it is clear that there are many contestations around our Constitutional right to free speech and expression that are ongoing. Whether it is Outlook magazine being slapped with charges of defamation and inciting communal hatred (153A) or Amnesty International’s India Desk being at the receiving end of both sedition (124A) and 153A cases, these incidents seen in the light of the JNU episode earlier this year highlights the increasing dangers that journalists, human rights activists, students, face in expressing their opinions openly. Both 124A and 153A have been prone to misuse.
They are both laws that criminalize speech acts that tend to have an impact on public order – the former by causing ‘disaffection’ against the state, and the latter by promoting enmity between communities of people. The indiscriminate use of these laws has resulted in creating a situation where any one who airs a public opinion needs to think twice about what they are saying. It creates categories of themes, which become off limits for discussion. It allows for third parties (members of political parties, goons, self righteous folk) to hold free speech to ransom, and exercise a Heckler’s veto. A Heckler’s veto, as described in legal discussions occurs when the government restricts the speaker’s right to freedom of speech in order to prevent a third part from reacting. Thus the police, instead of protecting the right of Amnesty India to organize a discussion, file a case against them after ABVP members complained of “anti-national” slogans allegedly raised at the meeting.
Satterfield cartoon about sedition laws. Image Source: https://commons.wikimedia.org/wiki/File:Satterfield_cartoon_about_sedition_laws.gif
The Amnesty incident prompted the organization Common Cause to file a Public Interest Litigation in the Supreme Court asking the court to intervene to prevent the misuse and misapplication of the sedition laws. According to the Outlook article in question different Sangh outfits trafficked 31 tribal girls, some as young as three years, from tribal areas of Assam, to Punjab and Gujarat. According to the article, the trafficking occurred despite orders from the Assam State Commission for the Protection of Child Rights, the Child Welfare Committee (Kokrajhar), the State Child Protection Society, and Childline (Delhi and Patiala) to these organizations by to return the children to Assam. The Assam police registered an FIR against Indranil Roy (Publisher), Krishna Prasad (Editor) of Outlook and Neha Dixit, writer of the story based on the complainants BJP spokesperson and Gauhati High Court advocate Bijon Mahajan, BJP Minority Cell member Mominul Awwal and Assistant Solicitor General Subhash Chandra Kayal Subhash Chandra Kayal. The filing of the case against Outlook has drawn widespread criticism, and ironically the article online has gone viral.
If this was not enough, in another shocking incident, the Chhattisgarh police filed a sedition charge against a resident of Bhilai for liking a page on Facebook that they deemed anti national. This incident brings back memories of the draconian section 66A of the Information Technology Act, which the Supreme Court struck down in March 2015 in the Shreya Singhal case. The court ruling in this case that there is a distinction between “discussion”, “advocacy” and “incitement” and that mere “discussion” or “advocacy” does not amount to incitement, the standard that is necessary to prove in order to curb speech. Despite this, the police is continuing to file cases for such frivolous acts of liking, forwarding, sharing or commenting one’s opinion about a serious political situation – in this case the turmoil in Kashmir. Unfortunately it is not the law in itself that is at fault. There is enough legal precedent to suggest that many of these cases that are meant to curb speech will not stand in court. But the impact of these cases cannot be judged just by whether someone is convicted or acquitted. Once someone is dragged into the arena of courts, police stations, files, bail applications and the rest, this in itself begins to serve as a deterrent to express one’s opinion freely and without fear of the repercussions.
