#microfascism

In the immediate aftermath of Modi’s victory in the 2014 election, it was expected that there were would be varied responses, including sharply critical ones. Within almost a day, there were reports of people being arrested for making anti-Modi statements or for having “derogatory” status messages on their Facebook page. In Goa, businessman Devu Chodankar was arrested for suggesting that Modi’s ascent to power would invoke a holocaust. In Bangalore, five Muslim students were arrested for circulating a satirical image of Modi’s funeral with the caption, Na Jeet Paye Jhooton Ka Sardar—Ab Ki Baar Antim Sanskar (“A false leader will never win—This time it’s final rites”). In Kerala, a young man was arrested for putting up a picture of Modi with an imprint of a shoe on his face. In all cases, the dreaded Sec. 66A was invoked along with other hate speech provisions. As of June 2014, there were at least eighteen people who were either arrested or questioned by the police for targeting Modi in social media (Sengupta 2014). 

The latest indicator of growing intolerance was the arrest of Salman, a college student who refused to stand up for the national anthem before a film screening (“Standing Is Unpatriotic; Sitting Is Anti-National” 2014). He was arrested after someone in the theater tracked his Facebook profile and found that he had posted something on Independence Day that mocked the online patriotism around him. In a well-meaning article, Nikita Malusare (2014) advised ordinary netizens to know Sec. 66A well to avoid jail, giving evidence to claims that the application of the law has had a chilling effect on free speech over social media. Given how important the Modi myth and image is to the success of the BJP, the Modi brand has to be protected at any costs. What better strategy than to use the law to do this?

It is well-accepted that political critique is part of the freedom of speech and expression, including the right to criticize any existing government and its leaders. The Indian courts have had a consistently good track record in their interpretation of the scope for sedition, holding that there has to be a proximate relation between a speech act and direct violence that could ensue from such an act before it can be curtailed. Yet despite a rich history of free speech cases, we find the police willing accomplices in these cases, even ignoring guidelines for prior sanctions before any arrest is made under Sec. 66A.

Given how legally flimsy most of the complaints are, I contend that the legal process itself is the punishment. It forces someone to go through a lengthy trial that requires his or her physical presence. During that time, the accused can be intimidated. Filing malicious complaints in far-off places forces the accused to travel long distances to attend hearings and forces him or her to incur high legal fees to defend himself of herself. All this is enough to deter anyone from engaging in any direct critique of the government. 

Rajeev Dhavan (2008) argues that as imperfect as the jurisprudence of free speech in India is, it at least provides one with a platform to challenge unreasonable acts of the state. The real challenge is how we tackle the lumpen threats that use the law in strategic ways. Violent attacks are generally preceded by or followed by the use of criminal law as a strategy of harassment. In addition to the well-known strategy of SLAPP suits (Strategic Legal Action Against Public Participation) in India, which serve to intimidate or silence an individual or organization against state or corporate actors, Dhavan invents a new acronym, KICKS (Kriminal Intimidatory Coercive Knock Out Strategies), to describe a mode of using the law for the most illegal purposes by the most lawless groups. Recall the way that the famous modernist artist M. F. Hussain was forced out of the country in 2006, charged with obscenity for his paintings of Hindu goddesses in multiple criminal cases filed against him across the country.