Revision as of 10:48, 17 September 2023

What is free speech?

Definition, debate

Dhananjay Mahapatra, LEGALLY SPEAKING - Free speech needs to be exercised with tolerance, March 6, 2017: The Times of India

`I Am Right, You Are Wrong' Infection Toxic

To define free speech is an arduous task. It is much easier to exerci se the right to free speech and expression guaranteed under Article 19(1)(a) to all those who abide by our Constitution.

Article 19 itself constricts free speech in exceptional circumstances. But neither the Constitution nor the Supreme Court, in its numerous judgments protecting Article 19(1) (a), have given an exhaustive analysis of what free speech could be.

A middle-aged journalist was recounting his experience with free speech.He grew up in a large family where only the father had the right to free speech. Any counter argument was regarded as committing the sacrilege of talking back to father. Was his right to free speech violated?

When he had his own family, he was constantly sniped at by his children, exercising their free speech to point out how his spoken English had an awful regional accent which many a time made him prefer silence.Since evolution, family and social norms have put fetters on free speech.

The personal experience of the journalist is inconsequential when one looks at societal norms that constrict free speech. For centuries, Dalits did not have the freedom of speech to criticise upper castes. They still don't.When they decide to resort to free speech, it often invites blood-soaked humiliation.

Free speech on a cricket field has in the past invited ugly spats. Free speech against judges invite contempt charges. In contrast, expletives are not part of free speech, yet it is freely used on Delhi streets. Free speech comes from free thinking, which takes place in a free environment.Has India provided a free environment that encourages free thinking? Are social norms evolved through this collective thinking conducive for free speech?

A case in point is the free articulation of one's sexual identity . The third gender cowered under the threat of prosecution and persecution for centuries. Thanks to the cases in the Delhi high court and the Supreme Court, big cities have somewhat come to terms with people going public with their sexual orientation. Still, the social stigma is so unnerving that only a few rich and famous have dared to articulate their sexual preferences.

At present, free speech has sparked a fiery debate in Delhi that refuses to be doused. A 20-year-old exercised her right to speak her mind.A legendary cricketer, who enthralled spectators with fearless batting, responded.Both these were in exercise of free speech.

But a famous lyricist muddied the free speech debate by calling the cricketer a “hardly literate player“, though he later took back his words. Is free speech the fiefdom of the so-called educated? These so-called educated use their free speech as sermons and get angry when they encounter a witty counter through free speech exercised by not so educated, yet well informed, persons. The “I am right, you are wrong“ infection has taken a virulent form during this free speech fever. Tolerance for other's right to free speech is dwindling fast.

While dealing with an incident relating to the eviction of yoga guru Baba Ramdev from Ramlila grounds in Delhi, the Supreme Court on February 23, 2012, had given one of its finest discourses on the virtues of free speech. It had said, “Freedom of speech is the bulwark of the democratic process. Freedom of speech and expression is regarded as the first condition of liberty . It occupies preferential position in the hierarchy of liberties, giving succour and protection to all other liberties. It has been said that it is the mother of all liberties. Freedom of speech plays a crucial role in formation of public opinion on social, political and economic matters.“

It will be easier to articulate the contours of free speech by referring to reasonable restrictions in Article 19 (2) and the defamation laws.But it would almost be impossible to sum up what should be the contents of free speech. Free speech, the right to exercise it by oneself and others, would be more enjoyable and informative if those participating in a debate kept in mind two words -`tolerance and fraternity’.

One must not weaken fraternity among Indians while exercising free speech, and be tolerant to others' views, even if it is a caustic counter to one's own earlier words said in exercise of free speech.

R. Guha: Eight major threats to freedom of expression

Eight reasons why India cannot speak freely, TNN | Sep 11, 2016

By Ramchandra Guha

In a new book, Ramachandra Guha finds out what's eating away at the moral and institutional foundations of Indian democracy

Some years ago, I characterized our country as a '50-50 democracy'. India is largely democratic in some respects such as free and fair elections… but only partly democratic in other respects. One area in which the democratic deficit is substantial relates to freedom of expression.

Let me analyse what I regard as the eight major threats to freedom of expression in contemporary India. The first threat is the retention of archaic colonial laws. There are several sections in the Indian Penal Code (IPC) that are widely used (and abused) to ban works of art, films, and books... These sections — of which the most dangerous is Section 124A, the so-called sedition clause — give the courts and the state itself an extraordinarily wide latitude in placing limits to the freedom of expression.

The second threat is constituted by imperfections in our judicial system. Our lower courts in particular are too quick and too eager to entertain petitions seeking bans on individual films, books or works of art... The life of a book or a work of art or a film has become increasingly captive to the ease with which a community, any community at all, can complain that its sentiments, any sentiments, are hurt or offended by it...

A third threat is the rise and rise and further rise of identity politics. In India today, we imagine our heroes to be absolutely perfect. I wonder if this was always so. Yudhishthira and Rama were capable of deceit and deviant behaviour — and our ancestors were not surprised or angered to know this. But now Bengalis shall be enraged at even the mildest criticism of Subhas Chandra Bose, Tamils at the mildest criticism of Periyar, Maharashtrians at the mildest criticism of Shiva ji, Dalits at the mildest criticism of Ambedkar, Hindutvawadis at the mildest criticism of Savarkar, and so on.

Indians are increasingly touchy, thin-skinned, intolerant, and, I must add, humourless. The rise of humourlessness is the other side of the rise of identity politics. And without humour, there cannot be great literature.

The fourth threat to freedom of expression in India is the behaviour of the police force. Even when courts take the side of writers and artists, the police generally side with the goondas who harass them.

The fifth threat is the pusillanimity or, more often, the mendacity of politicians. Indeed, no major or minor Indian politician, as well as no major or minor Indian political party, has ever supported writers, artists or film-makers against thugs and bigots. Rajiv Gandhi's Congress government banned Salman Rushdie's novel The Satanic Verses even before Ayatollah Khomeini issued his fatwa against it. In West Bengal, the (well-educated and professedly literature-loving) communist chief ministers Jyoti Basu and Buddhadeb Bhattacharya had Taslima Nasrin's novels banned, and even had the author externed from the state. The record of the BJP is no better. The vandalism of the Husain-Doshi Gufa happened when Narendra Modi was chief minister of Gujarat.

While he was in that post, Hindutva activists effectively destroyed the country's best art department, at the Maharaja Sayajirao University in Baroda. Moving on to the leaders of regional parties, neither Jayalalithaa nor M. Karunanidhi did anything to protect the novelist Perumal Murugan when he was coerced by a group of caste vigilantes in Tamil Nadu to stop writing altogether. In acting (or nor acting) as they do, these politicians are motivated largely by electoral considerations. They do not wish to offend, or to be seen to be offending, a particular caste, sect or religious group, lest they vote against them in the next election.

A sixth threat to freedom of expression is constituted by the dependence of the media on government advertisements. This is especially acute in the regional and sub-regional press...The state and political parties can, and do, coerce, suppress or put barriers in the way of independent reporters and reportage. So can the private sector, using material rather than punitive force. Thus, a seventh threat to freedom of expression is constituted by the dependence of the media on commercial advertisements. This is especially pertinent in the case of English-language newspapers and television channels that cater to the affluent middle class. Companies that make products that have damaging side effects are rarely criticized for fear that they will stop providing ads...

I come now to my eighth and final threat to freedom of expression. This is constituted by careerist or ideologically driven writers. To be sure, most writers and artists have strong opinions on politics and society. That is why we write, that is why we paint, that is why we make films, that is why we write plays. But no creative person should be so foolish or mistaken as to mortgage his or her independence, his or her conscience, to a political party.

Edited excerpts from Democrats and Dissenters, Allen Lane (Penguin Random House)

J&K called ‘occupied’

April 28, 2022: The Times of India

Srinagar: The Jammu and Kashmir High Court ruled on Wednesday that calling Kashmir “occupied Kashmir” and its residents as “slaves” does not enjoy protection under the Constitution’s Article 19 (A) on right to freedom of speech and expression. 
A bench of Justice Sanjay Dhar, hearing a petition filed by advocate Muzamil Butt seeking quashing of an FIR against him under the Unlawful Activities (Prevention) Act, remarked: “It is one thing to criticize the government for its negligence and express outrage on the violation of human rights of the people, but it is quite another to advocate that the people of a particular part of the country are slaves of the government of India or that they are under the occupation of armed forces of the country,” online portal Bar and Bench reported.


Police had registered an FIR against Butt for his Facebook post in which he criticized the killing of seven civilians in an explosion at the encounter site in Larnoo village in October 2018.


Muzamil Butt had also expressed outrage on social media platforms at other incidents of violence, which, he argued, was within his right to free speech. 
“By making these comments, Butt was supporting the claim that Jammu and Kashmir is not a part of India,” the court said. 
IANS

Parties fail to honour tolerance

The Times of India Jan 04 2016

Dhananjay Mahapatra

Tolerance had been the most used word in poli tics and social media for a good part of last year. In a fashionable and contemporary evolution of the term `tolerance', litterateurs returned awards given to them. Bollywood icons expressed their fear against growing intolerance. Political parties stalled Parliament to register their protest against intolerance.

Today social networking sites -Twitter, Facebook and WhatsApp -are the key reflectors of public opinion.The young and not so young possess smartphones that update them about every single event. And in a matter of seconds, they register their reaction and opinions. Their opinion matters.

Public opinion mattered a lot with rulers from time immemorial. Even the Ramayana describes how Lord Rama was forced to abandon his wife Sita after rescuing her from the clutches of Ravana merely on the basis of public perception despite knowing that there was no truth behind the public opinion.

In the Jataka stories, we had read how a Brahmin was duped of a goat by three thieves. When the Brahmin was on his way back home with the goat, the three separately went to him and each of them insisted that it did not behove a Brahmin to carry a dog.The Brahmin shooed away the first thief with abuses. When the second one reiterated the same thing, a doubt crept into the Brahmin's mind. And a little later, when the third one too insisted with vehemence that it was a dog, the Brahmin believed it and ran away abandoning the goat. The gang of three had a nice feast, says the Jatakastory .

That is the power of public opinion and politicians have understood it. In the recent past, political parties had hired IT professionals to create trends in social network ng sites with catchy presentation of incidents and views of their leaders to garner maximum hits. AamAadmi Party has left everyone behind on this count.

The power of public opin on stems from the fact that our Constitution provides citizens with right to freedom of speech, a guarantee that had been broadened by the Supreme Court through its numerous judgments over the years. During the time when here was not much debate on tolerance and social networking sites were absent, he SC in S Rangarajan vs P Jagjivan Ram [1989 (2) SCC 574] had given a far-sighted ruling which even today could be referred to aptly in view of the tolerance debate.

It had said: `The different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue...Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people.“

“The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency . Open criticism of government policies and operations is not a ground for restricting expression.

“We must practice tolerance of the views of others.Intolerance is as much dangerous to democracy as to the person himself.“

It was re-emphasised by the SC in S Khushboo vs Kanniamal [2010 (5) SCC 600].It had said that right to freedom of speech and expression, though not absolute, was necessary as we need to tolerate unpopular views.This right requires free flow of opinions and ideas essential to sustain the collective life of the citizenry . While an informed citizenry is a precondition for meaningful governance, the culture of open dialogue is generally of great societal importance.

So far so good. But, there is a flip side to this tolerance debate. If a person belonging to a majority community rejected an invitation for a religious function conducted by a per son from minority community, he would be branded intolerant. But, if we just reverse the characters, then the action of the person from minority community would be treated as legitimate since he had the right to freedom of religion.

If a person from majority community prefers to study Sanskrit or any ancient Hindu subject, he would be branded obscurantist and even fundamental. But, if he decides to study German, French, Japanese or any other foreign language, then he would be bracketed with those having progressive outlook. That is the reason probably why we have eminent Indologists from foreign countries.

Tolerance is a double edged sword. When Kirt Azad was suspended for al leged anti-party activities by BJP, there was a chorus by Congress and AAP terming the action undemocratic, tha it smacked of intolerance.

But, in November, AAP had suspended its own MLA Pankaj Pushkar from the as sembly for raising an issue that did not grab eyeballs on social networking sites -economically weaker category in schools.

Last month, Congress sacked the editor of its mouthpiece for publishing articles that intended to praise its president Sonia Gandhi but contained a line that her father had links with fascists in Italy. It is easy to ad vocate tolerance and free speech, but rules take a somersault when it comes to self.

Constitutional provisions

Restrictions specified under Article 19(2)

The Times of India, Aug 10 2015

Dhananjay Mahapatra

Freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution has long been regarded as the second most important after the right to life of a citizen. In recent times, it appears to be the most misused right in India, especially on the internet. Take, for example, the Yakub Memon hanging case.Views expressed on the issue were sharply divided on merits and veered to religious lines. It led to clash of ideologies, open spats, painting those who favoured execution as `bloodthirsty' and those who opposed it as `traitors'.

Freedom of speech on the internet is scaling new internet is scaling new heights every day with complete disregard for the restrictions specified under Article 19(2). Netizens are always in a rush. They post their views the moment they come across a statement.Mostly , it either gets a thumbs up or derisive criticism. The degree of controversy attached to an issue increases the severity of cuss words.

If one advocates stay of hanging of a terrorist, he gets slammed as a left-leaning activist fed on foreign funds. If one argues for the hanging, the `activists' slam him as a bloodthirsty rightwinger. By indulging in such slanderous accusations, ostensibly in exercise of right to freedom of speech, are the two groups not infringing upon the right to life of each other? For, right to life includes a life with dignity .

People may not agree with each other on a certain issue, but does it prevent them from being civil and secular while expressing their views? If a person has objection to such abuse on internet, does he have an effective legal remedy? Is it not cumbersome and a waste of time to go after those who use cuss words? And was this the intention of the Constitution-framers, and later the Supreme Court, to give such wide meaning and interpretation to freedom of expression?

In Shreya Singhal case, the Supreme Court recognized the problem that could arise if every person aggrieved by abusive criticism of his view on the internet was to make a request directly to the service provider to take down the offending comments.

It had read down Section 79(3)(b) of the Information and Technology Act contemplating action against service providers for abusive comments on websites hosted by them. It had said such action could be taken against the service provider only if it failed to comply with the court order directing it to take down the material which had been held to be abusive or offensive on the basis of a complaint. “This is for the reason that otherwise, it would be very difficult for intermediaries like Google, Facebook etc to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not,“ it had said.

But who will have the time and energy to pursue a case in a court of law by filing a complaint against persons who used abuses to criticize his view? The type and kinds of names under which comments are posted on websites these days would make it extremely difficult for a complainant to find out the actual name and address of the author who violated his dig nity and reputation. And when there is a systematic group attack against a view, it is better for the person to silently stomach the abuse.

The absence of protection against abuses, invectives and cuss words expressed freely to register dissenting view is the deterrent for many in society from using their real names to express views on the internet.

In a recent judgment on the criminality of a poet in using Mahatma Gandhi as a fictitious character and attributing abusive words to him to depict society , the Supreme Court said freedom of speech did not protect the poet from facing trial under Section 292 of Indian Penal Code for indulging in obscenity .

Justice Dipak Misra, writing the judgment in Devidas Ramachandra Tuljapurkar case, said a poet was “free to depart from the reality; fly away from grammar; walk in glory by not following the systematic metres; coin words at his own will; use archaic words to convey thoughts or attribute meanings; hide ideas beyond myths which can be absolutely unrealistic; totally pave a path where neither rhyme nor rhythm prevail; can put serious ideas in satires, notorious repartees; take aid of analogies, metaphors... and one can do nothing except writing a critical appreciation in his own manner and according to his understanding“.

Despite this poetic licence for freedom speech and expression, the SC was clear that “a person's human dignity must be respected, regardless of whether the person is a well-known figure or not“. But except for moving court against rogue elements on the internet, does a person aggrieved by a torrent of abuse have an immediate remedy? The time is ripe for legislators to think about it.

The arts: Banning works of art

Banned wagon, January-March 2015; Graphic courtesy: India Today, August 6, 2015

Banned wagon, April-August 2015; Graphic courtesy: India Today, August 6, 2015

The Indian SC: Mixed record on bans

Some famous books and films banned in India; Graphic courtesy: The Times of India, September 15, 2015

Some famous books and films banned in India; Graphic courtesy: The Times of India, September 15, 2015

A brief list of activities banned by vigilante groups (‘moral policemen’); Graphic courtesy: The Times of India, September 15, 2015

A brief list of activities banned by the Indian state; Graphic courtesy: The Times of India, September 15, 2015

A brief list of activities banned by the Indian state; Graphic courtesy: The Times of India, September 15, 2015

The Times of India, Sep 15 2015

Manoj Mitta

To bar or not to bar: SC has mixed record

For all its claims to being a sentinel of liberty , the Supreme Court has a mixed record in responding to various bans challenged before it over the years. Though the positions it took on bans on goat slaughter, cow slaughter, homosexuality and religious conversions are far from liberal, the best precedent that can perhaps be applied to the current dispute arising from Maharashtra's meat ban is from the same state. It was a 2013 SC judgment lifting the ban on dance bars in Maharashtra. But then, the very next year the state assembly passed a fresh law re-imposing the ban, avoiding this time the legal infirmity of discriminating between ordinary dance bars and those run in luxury hotels. The blanket ban on dance bars is liable to be struck down on the ground of violating the fundamental right of owners and employees “to practice any profession or to carry on any occupation, trade or business“, an issue that was very much reflected in the SC verdict.

This fundamental right enshrined in Article 19(1)(g) of the Constitution is, not surprisingly , central to the petition filed by the Bombay Mutton Dealers Association challenging the Maharashtra government's decision to prohibit not just the slaughter of goats but also the sale of mutton for some days in deference to the Jain festival of fasting, Paryushan.

Further, the meat ban decision, like the one related to the dance bars, involves a glaring issue of discrimination too. For, the ban does not extend to the sale of fish.And, as has been widely reported, all that the government counsel could say in the Bombay HC in defence of the discrimination was that there was no slaughter in the case of fish as they would automatically die once they were taken out of water. The wishy-washy explanation has exposed the legal vulnerability of the meat ban, which has political and communal overtones.

All the same, the partisans of the Mumbai meat ban may fancy their chances because of a 2008 SC verdict upholding a similar restriction in Ahmedabad. Even there, the meat ban was in deference to the same Jain festival and the challenge came from the local lobby of butchers. To validate the meat ban in Ahmedabad, the SC had to overrule the Gujarat HC.

Such illiberal rulings from the SC are found on other kinds of bans too. Take its 2005 judgment reversing its own position on the vexed issue of cow slaughter. Way back in 1958, the SC had held that the ban on cow slaughter envisaged by Article 48 did not extend to the cattle that was “not capable of milch or draught“. As a result of the 1958 verdict, various states had allowed the slaughter of cattle that could be classified as “useless“. But all this changed in 2005 when the same SC ruled that the Article 48 ban extended to all the cattle, irrespective of their age and the strain they put on the availability of fodder.

Another blow struck by the SC to liberty was in 2013 when it reinstated the ban on homosexuality . This was a reversal of the historic judgment passed by the Delhi high court in 2009 reading down Section 377 IPC to exempt consensual sex between adults of the same gender from any criminal liability. The Supreme Court verdict of 2013 put the clock back as it re-criminalized all homosexual acts, in effect privileging public morality over constitutional morality .

Similarly , the SC took a retrograde view on laws banning religious conversions.In keeping with the right to propagate religion guaranteed by Article 25, the laws passed by some of the states forbade only those conversions that were based on coercion or fraud. Contrary to the debates held in the Constituent Assembly , the SC held in 1977 that the right to propagate religion did not confer a right on anybody to convert others. While allowing efforts to spread the tenets of a religion, the apex court ruled that anybody engaged in conversion was automatically liable to be punished, even if it was not based on any extraneous considerations.

Insulting comments: SC upholds ban on book against Islam

From the archives of The Times of India 2010

The SC said it was more concerned with peace in society than a person’s fundamental right to freedom of speech and upheld a Maharashtra government ban on a book titled “A Concept of Political World Invasion by Muslims”.

Petitioner R V Bhasin had challenged Maharashtra’s decision four years after the publication of the book to ban it on the ground that it perpetrated hatred. The Bombay HC had said that government committed no wrong by banning the book. “The way this sensitive topic is handled by the author, it is likely to arouse the emotions and sensibilities of even strong minded people... criticism of Islam is permissible like criticism of any religion and the book cannot be banned on that ground...But the author has gone on to pass insulting comments.”

Defamation, contempt employed to stifle free speech

Dhananjay Mahapatra, August 19, 2019: The Times of India

Justice A P Shah reacted sharply to TOI’s August 5 article “Preaching retired Judges seldom look back at their conduct during judgeship”. It had quoted his July 28 speech, in which he discussed a sexual harassment complaint against present CJI with a caveat “without going into the truthfulness or falsity of the complaint”. The woman had filed the complaint with help from advocates Prashant Bhushan, Shanti Bhushan, Vrinda Grover and India Jaisingh.

Citing Justice Shah’s caveat, we discussed a 2008 complaint filed by lawyers against him. We took care not to publish graphic details of the complaint and gave just an outline of the contents. Justice Shah termed it as insinuation and mildly threatened us with defamation.

To recall, it was Justice Shah who, while giving a lecture at a journalism school at Chennai in May 2017, had said, “Where the offence of defamation tends to be used against the press most often by public authorities, and increasingly powerful private players, there is one tool that is used often by courts. This is the tool of contempt of court.” Let us see how activists skilfully use both defamation and contempt to their advantage.

He delivered Rosalind Wilson Memorial Lecture titled ‘Judging the Judges’ on July 28. There was frantic messaging from advocate Prashant Bhushan’s office to reporters to attend “an important lecture by Justice A P Shah at IIC”. This was followed by a soft copy of Justice Shah’s lecture being mailed by Bhushan’s office to each newspaper reporter.

Justice Shah retired as chief Justice of Delhi High Court in February 2010. It was common corridor gossip that then most senior Supreme Court Judge, S H Kapadia, was firmly opposed to Shah’s appointment as an SC Judge. When we wrote that it was the little known 2008 complaint by a group of lawyers which probably stalled his elevation, Justice Shah asked how did we get a copy of that letter. Do free speech advocates entertain questions about source of information? Months before Justice Shah retired and when it appeared that his chances of getting appointed as a judge of the SC were bleak, advocate Prashant Bhushan in an interview to web portal ‘Tehelka’, run by Tarun J Tejpal, alleged that half of the previous 16 CJIs were corrupt but conceded that he did not have proof to back his insinuation.

Bhushan also made a serious imputation against Justice Kapadia by alleging misdemeanour with regard to hearing of a matter relating to Sterlite Group of companies, in which Justice Kapadia had certain shares. What Bhushan deliberately omitted to mention was Justice Kapadia had revealed his shareholding in Sterlite to the counsel appearing for parties during the hearing. The counsel had categorically stated that they had no objection whatsoever to the matter being heard by Kapadia.

On a contempt petition filed by amicus curiae and senior advocate Harish N Salve, the SC issued notice to Prashant Bhushan and Tehelka. Senior advocate Ram Jethmalani appeared for Prashant Bhushan. Shanti Bhushan represented Tehelka. Both requested the SC to close the proceedings claiming that it was free speech of Bhushan junior. They argued that contempt proceedings should be invoked and exercised with utmost caution so as not to infringe upon right to free speech.

On July 14, 2010, a three-judge bench of the SC in ‘Amicus Curiae vs Prashant Bhushan and Another’ rejected arguments of Jethmalani and Bhushan senior and decided to proceed with the contempt matter. It posted the matter for arguments on November 10, 2010.

On September 16, 2010, Shanti Bhushan decided to transform himself from contemner’s counsel to a contemner. In the pending contempt case against his son, he filed an application saying in writing exactly what his son had alleged leading to initiation of contempt proceedings. Bhushan senior dared the SC to send him to jail for contempt.

Like son, the father gave no proof except telling the SC that he had interacted with two former CJIs who had confided in him that their immediate successors and predecessors were corrupt.

This is how the activists operate. When they allege something, that has to be taken as gospel truth. No one dare ask for proof. If anyone seeks proof, they will bring their ilk to the courts and streets, use free speech and shout down their critics.

They will always advocate end of defamation law citing it to be an impediment to free speech. But, if someone alleges something against them based on a complaint, then they won’t flinch to threaten defamation action. And, when they reject allegations against them with ‘the contempt it deserves’, everyone is duty-bound to bury these under layers of carpets.

Remember Best Bakery case of 2002 post-Godhra riots period? Gujarat’s Modi government was branded as ‘modern day Nero’ by the SC on the basis of a petition filed by ‘Citizens for Justice and Peace’ through activist Teesta Setalvad. She had cited riot victim Zahira Sheikh’s evidence to drive home unimaginable brutalities unleashed by rioting mobs.

After Zahira was paraded all over to make a villain out of the Modi government, she lost her value as an asset worth nurturing. When denied of her share in the cake, Zahira accused Setalvad of financial irregularities in handling of money raised for riot victims. Zahira ended up in jail.

SC-appointed SIT headed by R K Raghavan once filed a sealed cover report claiming that Setalvad and her associates were tutoring witnesses and making them sign identical statements as evidence in riots cases. The SIT report, furnished in sealed cover to the SC, also mentioned about how Setalvad and her team were circulating exaggerated stories of violence against Muslims.

When TOI reported this quoting the sealed cover SIT report, it was denied by Setalvad as a news story based on briefing of the Gujarat government. When TOI quoted pages of the SIT report which were caustic about Setalvad’s activities, she through activist lawyer Indira Jaising moved the SC seeking initiation of contempt proceedings. How could the TOI access sealed cover SIT report was their wounded refrain. Does it not sound similar to Justice Shah’s question — how did the reporter get the 2008 complaint copy?

Fortunately, a three-judge bench of the SC did not entertain Jaising’s arguments for initiation of contempt proceedings for reporting the SIT report. Right to free speech after all is double-edged. It is available as much to the activists as to commoners.

SC: No poetic licence to make Bapu swear

The Times of India, May 15 2015

Dhananjay Mahapatra

The Supreme Court ruled against poetic licence stretching the right to freedom of expression to cast revered figures like Mahatma Gandhi as a character in a fictional work and attributing obscene words to him.

A bench of Justices Dipak Misra and P C Pant upheld the prosecution launched against Devidas Ramachandra Tuljapurkar, editor of magazine `Bulletin' meant for private circulation among members of the All India Bank Association Union, for the poem `Gandhi Mala Bhetala' (I met Gandhi). The poem, written by Vasant Dattatreya Gurjar, was published in the July-August 1994 issue of the magazine. However, it discharged the printer and publisher as they had tendered apologies.

The judgment, authored by Justice Misra, dealt exhaustively with the issue of obscenity , referred to works of famous authors and poets across the world, extracted passages from 40-odd books on Gandhi written by Indians and foreigners and tested poetic licence on the touchstone of `contemporary community standards'.

The question before the court was “whether in a write-up or a poem, keeping in view the concept and conception of poetic licence and the liberty of perception and expression, using the name of a historically respected personality by way of allusion or symbol is permissible“? Using his educational background in literature, Justice Misra dug deep into the works of famous authors to convey what poetic licence was intended to serve and whether using historically revered figures as characters in a poem and attributing obscene words to them served that purpose. Tuljapurkar had claimed that he used the obscene words, as if spoken by Gandhi, to convey the angst in society. He faces prosecution under Section 292 of IPC, which is punishable by upto five years in jail.

The bench accepted sub missions of amicus curiae Fali S Nariman, who said, “Words that had been used in various stanzas of the poem, if spoken in the voice of an ordinary man or by any other person, it may not come under the ambit and sweep of Section 292, but the moment there is established identity pertaining to Mahatma Gandhi, the character of the words change and they assume the position of obscenity .“

The SC said, “Freedom of speech and expression has to be given a broad canvas, but it has to have inherent limitations which are permissible within the constitutional parameters.“ An author's fallacy in imagination could not be attributed to historically revered figures to diminish their value in the minds of people, the bench said. If an author used obscene words and attributed it to such personalities, then he travelled into the field of perversity , it added.

Bans in 2015

India Today, August 6, 2015

Damayanti Datta

Religion, politics and sex. Caught between the trinity, Independent India has managed to silence several voices and opinions. While the recent uproar over the ban on porn sites forced the government to retract, check out the milestones of our long heritage of intolerance.

Religion, politics and sex. Caught between the trinity, Independent India has managed to silence several voices and opinions. While the recent uproar over the ban on porn sites forced the government to retract, check out the milestones of our long heritage of intolerance.

5 times the Supreme Court restored our faith in justice in July 2015

July 30

MIDNIGHT HEARING

For the first time, the Supreme Court was opened at 2 a.m. for a three-judge bench headed by Justice Dipak Misra to hear the final plea of 1993 Bombay blasts convict Yakub Memon, a few hours before his execution.

July 30

TERMINATION OF PREGNANCY

A bench of Justices Anil R. Dave and Kurian Joseph allowed a minor rape victim to terminate pregnancy after 24 weeks, making an exception to the rule which allows abortion until the 20th week of pregnancy.

July 8

BAN ON PORNOGRAPHY

The Supreme Court said India can't ban porn. Chief Justice of India H.L. Dattu said a total ban on sex sites would violate privacy and personal liberty.

July 6

RIGHTS OF UNWED MOTHERS

An unwed mother can be the sole guardian of a child without prior consent of the biological father, ruled Justice Vikramajit Sen.

July 1

MEDICAL NEGLIGENCE

Justices J.S. Khehar and S.A. Bobde ordered Tamil Nadu government to pay Rs 1.8 crore, one of the largest compensations in a medical negligence case, to an 18-year-old girl who lost her vision at birth in a government-run hospital. 10 films that faced the ire of government, censor board and a prudish society.

The case of Padmaavat, the film

SC invokes right to freedom of speech, tells governments to douse threats

Dhananjay Mahapatra, SC rescues Padmaavat, orders 4 states to lift ban on screening, January 19, 2018: The Times of India

The case of Padmaavat, the film : observations of the Supreme Court
From: Dhananjay Mahapatra, SC rescues Padmaavat, orders 4 states to lift ban on screening, January 19, 2018: The Times of India

See graphic:

The case of Padmaavat, the film: observations of the Supreme Court

‘Govts’ Duty To Tackle Threats Of Violence’

Invoking the constitutionally guaranteed right to freedom of speech and expression and reminding governments of their constitutional obligation to douse threats of violence, the Supreme Court on Thursday cleared the countrywide release of controversial film “Padmaavat” on January 25.

Though this is an interim order from the Supreme Court which will hear the petition again on March 26, its effect was that of a final order given the detailed discussion about the sanctity and inviolability of right to freedom of speech and expression.

Hearing a petition from the producers and the director of the film, banned by the BJP-ruled states of Rajasthan, Gujarat, Madhya Pradesh and Haryana, the bench led by CJI Dipak Misra reminded the states of their constitutional obligation to protect right to free speech and expression by controlling law and order problems that could arise because of opposition to screening of the film by fringe groups. It effectively struck down the ban by the four states.

Spectre of fear can’t be allowed to prevail: SC

The bench of CJI Misra and Justices A M Khanwilkar and D Y Chandrachud needed very little persuasion from senior advocate Harish Salve to fault the four states for refusing to screen the film even after changes, including in the title from ‘Padmavati’ to “Padmaavat’, were made at the behest of the Central Board of Film Certification. The CBFC cleared the film with a U/A certificate.

However, the four states, through additional solicitor general Tushar Mehta, argued that the CBFC, while clearing a film, scrutinised filmmaking and ethical aspects but state governments had to factor in possible law and order challenges arising from volatile social dynamics.

The argument was junked by the CJI. “That is the fundamental error. If the film ‘Bandit Queen’ can pass the test of the SC, why not ‘Padmaavat’? Whether a film is a box office bomb or a flop, whether distributors buy the film or not, we are not concerned. When the right to freedom of speech and expression, which is inseparable from making a film or enacting street theatre, is guillotined, my constitutional concern gets aroused. Artistic and creative expressions have to be protected,” he said.

“A spectre of fear cannot be allowed to prevail under the Constitution,” the bench said, asserting that in a country governed by rule of law, fringe groups could never be permitted to hold filmmakers to ransom. It recalled the apex court’s judgment clearing the release of Prakash Jha’s film ‘Aarakshan’ to tell all states, especially the four which have banned ‘Padmaavat’, to discharge their constitutional obligation and deal firmly with law and order issues.

The bench rejected Mehta’s plea for adjournment and said, “There are valuable constitutional rights involved. If we adjourn this case without passing interim orders, it will be wrong.” It cited how the controversial Marathi play ‘Mi Nathuram Godse Boltoy’ by Pradip Dalvi, or film ‘Mohan Joshi Haazir Ho’ by Saeed Mirza were allowed to be exhibited despite their controversial themes. The only assurance the states got was that the court would reconsider its interim order if they could later establish they had the supreme legal right to ban screening of a particular film because of apprehensions of law and order problems.

Lively discussion among the judges and lawyers

Dhananjay Mahapatra, Lady Chatterley’s Lover to Bandit Queen: Dogmas, distortion of history discussed, January 19, 2018: The Times of India

The proceedings in the Supreme Court challenging the ban on ‘Padmaavat’ by four states saw a lively discussion among the judges and lawyers on dogmas and the Victorian mindset of governments which have impeded the reading of classics, movie based on sensitive issues and staging of plays.

On the table were classics like Kalidasa’s ‘Meghadoota, love story from Mahabharata on ‘Nala and Damayanti’, ‘Lady Chatterley’s Lover’, ‘Gandhi: Naked Ambition’ by Jad Adams and ‘Man Who Killed Gandhi’. The controversial plays which were brought up and elicited caustic comments from the CJI Dipak Misra-led bench included Pradip Dalvi’s Marathi play ‘Mi Nathuram Godse Boltoy’ and Vijay Tendulkar’s ‘Sakharam Binder’.

Films that found mention were Shekhar Kapoor’s ‘Bandit Queen’, Prakash Jha’s ‘Aarakshan’ and K A Abbas’s ‘Tale of Four Cities’. The CJI also cited the artistic freedom that flows in street plays, theatre, drama and ‘geeti natyas’ (dance dramas) popular in the hinterland.

Justice Misra said a puritan Odia scholar had translated ‘Nala and Damayanti’ into the regional language in 1884 while omitting certain stanzas saying it was not appropriate for readers to digest. “He had a perception befitting that of the Victorian era. Just imagine how Kalidasa could get away with Meghadoota in that era. We need to evolve and understand the importance of right of free speech. If we apply Victorian era mindset, then I have no hesitation in saying that 60% of the classics would not be available for reading,” the CJI said.

This provided the opening for senior advocate Harish Salve to argue that artistic expressions must be given liberal licence. “The film ‘Padmaavat’ has no distortion of history and is based on the famous epic of the same name written in 1540 by well known Sufi poet Malik Muhammad Jayasi. But one day, I would love to argue how artistic expressions can have licence to distort history.”

Salve said the western world had made ‘Jesus Christ Superstar’, a 1970 rock opera with music by Andrew Lloyd Webber and lyrics by Tim Rice. The work was loosely based on the gospels’ accounts of the last week of Jesus’s life, beginning with preparations for the arrival of Jesus and his disciples in Jerusalem and ending with the crucifixion.

Not intending to widen the debate to areas unconnected with ‘Padmavaat’, the bench said, “Let us not get into that territory.” But additional solicitor general Tushar Mehta said artistic freedom of expression could never be a licence to distort history. “Can anyone in India be permitted to make a film showing Mahatma Gandhi sipping whisky?,” he said.

The bench said the Central Board of Film Certification, which is the statutory body under the Cinematograph Act, 1952, to clear films for public exhibition, was bound to examine all scenes in a film and delete those denigrating or degrading women.

Mehta said, “The question on this film is not about denigrating or degrading a woman. Here, it is not just a woman. She is treated like a goddess and worshipped. It is not a simple gender issue to be dealt by the CBFC... Suppose a film has humour about a particular community which is in majority in a state. Can the state not order suspension of screening of that film to avert law and order situation?”

Meesha: Imagination of artists must be unfettered SC

Dhananjay Mahapatra, SC: Imagination of writers, artists must be unfettered, September 6, 2018: The Times of India

Throwing out a petition seeking ban on Malayalam novel “Meesha’ that allegedly portrayes priests and young girls in bad light, the Supreme Court on Wednesday put its weight behind the right to freedom of expression of writers and artists, saying their thinking, musings and imaginations must be unfettered.

A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud said: “It has to be kept uppermost in mind that the imagination of a writer has to enjoy freedom. It cannot be asked to succumb to specifics. That will tantamount to imposition. A writer should have free play with words, like a painter has it with colours. The passion of imagination cannot be directed.”

Writing the judgement for the bench, CJI Misra said: “True it is, the final publication must not run counter to law but the application of the rigours of law has to also remain alive to the various aspects that have been accepted by the authorities of the court. Craftsmanship of a writer deserves respect by acceptance of concept of objective perceptibility.”

Quoting French writer Voltaire’s famous line - “I may disapprove of what you say, but I will defend to the death your right to say it”-, the CJI dismissed the petition by N Radhakrishnan seeking a ban on the book and said, “If books are banned on such allegations, there can be no creativity. Such interference by constitutional courts will cause death of art.” The SC sent a reminder to all those who show intolerance towards novels on the ground that it offended religious or social sentiments of people by saying: “We must remember that we live not in a totalitarian regime but in a democratic nation which permits free exchange of ideas and liberty of thought and expression.”

“The flag of democratic values and ideals of freedom and liberty has to be kept flying high at all costs and the judiciary must remain committed to this spirit at all times unless they really and, we mean, really in the real sense of the term, run counter to what is prohibited in law. And, needless to emphasise that prohibition should not be allowed entry at someone’s fancy or view or perception,”

Censorship of art, cinema etc

See

Censorship of the arts and media: India

Censorship of cinema: India

Censorship and the law:India

Electronic platforms: Internet, cellphones

Gujarat HC upholds mobile internet curfew during Patel stir

The Times of India, Sep 19 2015

Says the ban was `just and proper'

The Gujarat high court has upheld the state government's decision to impose a week-long mobile internet ban in August 2015 when riots broke out on August 25 following the arrest of Hardik Patel, the torchbearer of the ongoing Patidar reservation stir. Terming the ban “just and proper“, the court turned down a PIL filed by law student Gaurav Vyas, who had challenged the blocking of mobile internet services on the ground that it violated fundamental rights. Vyas had also questioned the city police commissioner's invocation of CrPC's Section 144 (power to issue orders in urgent cases of nuisance or apprehended danger) to restrict mobile internet services.

The petitioner contended that the government should have blocked certain websites or services by applying Information Technology Act's Section 69A (blocking content in case security of state is threatened). “Applying Section 144 of CrPC to block internet is arbitrary and beyond the scope of the provisions of the law,“ he argued in his plea.

In response, the government submitted that there was sufficient and valid ground to exercise CrPC's Section 144 to block mobile internet services, as “it would have been difficult to restore peace otherwise“. The state government also submitted that the exercise of power was not extreme since internet was still accessible on broadband and Wi-Fi services.

After hearing the case, the court said Section 144 of the CrPC was exercised for preventive action. In a given case, Section 69A of the IT Act might be exercised for blocking certain websites, whereas directions could be issued under CrPC provisions to service providers to block internet facilities. The petitioner's advocate said they planned to move the SC against the HC order.

Fake news

What is Fake news?

...and why it was right to withdraw new rules on journalist accreditation ‘’, April 4, 2018: The Times of India

The Prime Minister’s Office (PMO) has rightly directed the information and broadcasting (I&B) ministry to withdraw its statement issued on Monday announcing new guidelines to govern the accreditation of journalists if they were found indulging in fake news. The directive follows all-round criticism and apprehensions that the new rules could in effect be misused to curb press freedoms.

While the move has now been reversed, the fact is that enough safeguards against misleading or false news by media personnel already exist within current laws. Organizations like the Press Council of India (PCI), for newspapers, and News Broadcasters Association, for television channels, already exist to ensure press accountability.

It is important to distinguish here between fake news — created and disseminated consciously despite full knowledge of it being false — and inaccurate reporting where errors in news coverage sometimes creep in by mistake, but without any malintent. Such errors can always be corrected and it is important to define fake news accurately. The Editors Guild or NBA can do this. It should not be done by government.

Though the now-withdrawn new rules would have affected only a small number of journalists ( 2,403 currently registered with Press Information Bureau), there were three broad problems with this.

› First, that any journalist who had a complaint registered against her would automatically have had their accreditation cancelled, till a regulating agency decided on the matter. Since anyone can file a complaint, this, it was rightly feared, would open the route for misuse.

› Second, the vast majority of fake news is created online by vested interests who want to propagate shifts in public opinion by manufacturing false news. This includes politicians and those supported by political parties, who also deploy vast resources online to then propagate these manufactured messages. These regulations would not have covered these fake news creators.

› Third, to guard against misuse, the definition of fake news itself must only be regulated by and enforced by industry self-governing industry bodies like PCI, NBA or the Editors Guild, not by government.

What exactly is fake news?

Fake news is ‘news’ that’s been created knowing it isn’t true. Unlike inaccurate reporting, which newspapers by and large correct and/or apologise for, fake news isn’t accidental or a genuine mistake. It isn’t even bias. It’s plain false and purposefully crafted to mislead.

Take the case from some years ago, when a piece of fake news about Kiran Bedi gained traction, when she was named the opposition BJP candidate for Delhi chief minister. If not directly her political opponents, people who generally wanted to create an unfavourable impression about her spread the canard that Bedi was not India’s first woman police officer and that her proclamations that she was were false. Fact is, she was indeed India’s first woman police officer, but so convincing was a fake news clip that was generated, that it fooled even seasoned news watchers.

There is no universally acknowledged definition of fake news. A recent paper, ‘The Science of Fake News’ published in the journal ‘Science’ defined fake news as “fabricated information that mimics news media content in form but not in organisational process or intent”.

Another definition was provided by Claire Wardle of First Draft, a UK-based nonprofit organisation that is part of the Shorenstein Center on Media, Politics and Public Policy at Harvard University’s Kennedy School of Government. In an article entitled “Fake News. It’s Complicated”, she categorised misinformation or disinformation into seven categories, namely satire or parody, misleading content, imposter content (where genuine sources are impersonated), fabricated content, false connection (where headlines, visuals or captions don’t support the content), false context (where genuine information is shared with false contextual information) and manipulated content (where genuine content is manipulated in order to deceive).

Are all forms equally problematic?

If we look at the categories spelt out, it is quite clear that they aren’t all equally harmful or malicious. It is important, therefore, to distinguish for instance between improper contextualization, which could be poor journalism, and downright false content. The key question that needs to be asked is whether there is a deliberate attempt at providing false information. Obviously, even within this, the possible consequences of the false information getting spread would make a difference to how seriously the breach ought to be viewed.

Is it a product of social media?

Fake news is by no means a new phenomenon. However, the existence of social media has some clear effects on the problem. For one, the reach of social media is so much wider than traditional forms of media that the spread of fake news (as also true news) is much greater today than in past. Secondly, while traditional media operated to fixed deadlines, like a 24-hour cycle for daily newspapers or an hourly cycle for TV news bulletins, social media is a real time medium. That makes it more likely that unverified content will get spread. Finally, unlike with traditional media where the recipient knew very clearly who the provider of the ‘news’ was, the original source can become anonymous in social media. What all of this means is that it is easier to purvey fake news today and to make it reach far in a very short while.

Shouldn’t action be taken against purveyors of fake news?

Once we accept that the term is a catch-all that covers a very wide spectrum of misleading or false information, it follows that how we deal with each of these has to be different. We must make a distinction between genuine errors or incompetence on the part of journalists and clear attempts to spread falsehoods. We also need to take into account the potential for harm from such ‘fake news’. Allowing governments to determine what is or is not fake news and to punish the errant journalists has obvious risks. It would become all too easy for governments to muzzle the media by using this stick as a threat. It must, therefore, be left to regulators that are autonomous of the government, whether like the Press Council of India, or the National Broadcasters Association. For sections of media that do not have such regulators, they will need to be put in place.

Freedom to criticize religions

See Freedom to criticize religions: India

Hate speech: India

See Hate speech: India

Information Technology Act: India

Sec 66A held unconstitutional

August 29, 2021: The Times of India

India’s ambitions of being a technological superpower in the 21st century received its biggest fillip on March 24, 2015. Till that day, its ambitions were being fuelled by the innovativeness of entrepreneurs and unstinted support of the political class that was committed, across party lines, to the lofty objective of creating a ‘Digital India’. But, as is often the case, the legal framework was behind the curve. Emblematic of its retrograde nature was the Information Technology Act. A law that was meant to promote IT had been written, wittingly or unwittingly, to achieve the opposite effect—to allow policing of conversations on the internet, arrest persons with inconvenient views and constrain the animal spirits of our entrepreneurs instead of unleashing them.

Particularly egregious was Section 66A, which criminalised communications that were “grossly offensive” or aimed at causing annoyance, inconvenience, danger, insult, injury, hatred, ill will. Using powers under this section, the police had arrested two women simply for criticising how Mumbai had been shut down when Balasaheb Thackeray died. Against any standard of good lawmaking, the problems with Section 66A and its wanton use would be considered elementary. Yet it sat smugly in our statute books, as if to demonstrate the ease with which legal rules could fly in the face of reason and constitutional rights.

Six years ago, the Supreme Court, in Shreya Singhal vs Union of India, struck down Section 66A as unconstitutional. By doing this, it stepped up to the task of reorienting India’s free speech jurisprudence to squarely face the dangers and savour the fruits of a digital age. It held out the promise of the internet being the sanctuary of the free citizen, not a playground for law enforcement agencies.

Constitutional frameworks relating to free speech regularly grapple with certain recurrent themes and issues. For what reasons can speech be restricted? How free a rein should police have in such matters? And even if a good reason for restricting speech is found, how is one to tell when that particular reason is really involved and when it is being used as an excuse? In many ways, how courts answer these questions determine how free a country actually is, as opposed to what its Constitution proclaims.

Take, for instance, the question of appropriate reasons for speech regulation: Article 19(2) of the Constitution enumerates specific reasons for restricting free speech, such as the sovereignty and integrity of the country, the security of the State, public order, and incitement to an offence. Only if these specific restrictions are attracted can speech be restricted—otherwise freedom to speak is the default rule.

But the inconsistency of Indian courts has meant this logic has often been flipped on its head. Broad excuses for speech regulation in “public interest” have made restriction the rule and freedom the exception. With the Supreme Court upholding the offence of sedition, criminal contempt and several other criminal penalties as legitimate exceptions to free speech, this zeal to restrict has only been bolstered. In this backdrop, Shreya Singhal becomes even more significant. Indian courts have often made the right noises on free speech but fallen short when it comes to ruling in favour of it. The Shreya Singhal case ensured a provision that actually restricted free speech was not merely the subject of judicial reprimand, but was wholly extinguished.

That the rot of restrictiveness that Shreya Singhal curbed ran deep is clear from the fact that wildly subjective terms such as offensiveness, annoyance, and inconvenience could even be considered acceptable in drafting laws, let alone being defended on grounds of “public interest”. Fanciful dangers and uncertainties of digital communication were held up as adequate grounds for vague rules, effectively turning the internet in India into a police fiefdom. This then constitutes yet another of Shreya Singhal’s landmark contributions: in a country where courts habitually pretend as if words do not matter, and legislators even less so, the Supreme Court placed the value of clarity of language at the centre of the framework for speech regulation. In the context of a criminal provision like Section 66A, the court demanded this clarity in the form of exacting specificity, striking down the provision for its irreparably vague terms and for its failure to constrain police action. It called out the root problem underlying not just free speech jurisprudence in India, but also one of the oldest and deepest weaknesses in its legal system: imprecision in drafting laws.

Such drafting imprecision is a byproduct of an even older and deeper malaise—governmental intransigence. A research paper by Abhinav Sekhri and Apar Gupta in 2018 shows cases continue to be filed under Section 66A despite it being struck down. A bench of the Supreme Court recently expressed its amazement as to how this could happen, leading to the Centre taking corrective measures. The lesson is clear—the arc of the legal universe may be long, but it needs more than one fell swoop to make it bend towards freedom.

This does not in any way take away from the importance of what Shreya Singhal achieved. No judgment ever fully resolves the challenges it faces up to, but posterity determines how it shapes society. The accuracy of Shreya Singhal’s diagnosis, its insistence on law being clear and its reaffirmation of the tenets of the Constitution shine through amidst the un-freedom that surrounds us. The judgment could easily have followed a safe line of precedent and sided with police forces looking to bring a lawless internet to heel. Instead, it chose freedom and all the inconvenient boisterousness that it entails. That is its abiding legacy.

Judiciary on Right to Speech and Expression

The SC’s upholding of free speech

December 24, 2018: The Times of India

‘Jaane Bhi Do Yaaron’, it is free speech; let us not whip up a controversy

In his early years, Naseeruddin Shah displayed his immense talent as an actor in films like ‘Jaane Bhi Do Yaron’, where efforts to expose corruption boomerangs, and ‘Aakrosh’, in which he as a budding advocate poignantly paints the dance of violence by the rich and powerful that grinds commoners in the Naxal-infested hinterland.

Evils of corruption and violence, stirringly depicted in these two films, continue to strip the masses of dignity, identity and livelihood. Not many make an issue of their plight. So, when Shah expressed anguish over the ‘poison’ spreading through communally violent cow vigilantism and feared for the safety of his children, he was echoing the views of filmstars Aamir Khan and Shahrukh Khan.

There is no contesting the concerns of ‘right thinking people’, for cow vigilante groups display rabid contempt for rule of law. Right to free speech, be it of actors or ‘right thinking persons’, to fearlessly condemn such wanton violence is the only way to make governments do their constitutional job — upholding rule of law without the slightest compromise.

Many ‘right thinking persons’ feel that right to free speech too is under threat even though the Supreme Court has repeatedly ruled, and as recently as on September 5 in N Radhakrishnan vs Union of India said, “A writer or an author (or any person for that matter)… has the right to exercise his liberty to the fullest unless it falls foul of any prescribed law that is constitutionally valid. It is because freedom of speech and expression is extremely dear to a civilised society. It holds it close to its heart and would abhorrently look at any step taken to create even slightest concavity in the said freedom.”

If one searches the annals of judiciary in different countries, Indian courts would emerge the undisputed leaders in zealously defending right to free speech, except for an aberration in ADM Jabalpur case [1976 (2) SCC 521] when the SC had allowed the government to muzzle it through Emergency. When celebrated artist M F Husain’s nude ‘Bharat Mata’ painting sparked violence, the Delhi High Court in its judgment through Justice Sanjay K Kaul came to Husain’s rescue. It quashed summons and warrants issued by trial courts in cases filed by groups alleging indecent portrayal of ‘Bharat Mata’.

Justice Kaul in his 2008 judgment had said, “There are very few people with a gift to think out of the box and seize opportunities and, therefore, such people’s thoughts should not be curtailed by the age-old moral sanctions of a particular section in society having oblique or collateral motives who express their dissent at the very drop of a hat.”

In contrast, the UK government had banned public exhibition of Nigel Wingrove’s 18-minute video film ‘Vision of

Ecstasy’, which was based on the life and writings of St Teresa of Avila, the 16th century Carmelite nun and founder of many convents, who experienced powerful ecstatic vision of Jesus Christ. The British Board of Film Classification said, “If the male figure were not Christ, the problem would not arise. Cuts of a fairly radical nature in the overt expression of sexuality between St Teresa and the Christ figure might be practicable but Wingrove did not wish to attempt this course of action.”

As the final arbiter, the European Court of Human Rights examined whether the UK ban violated right to freedom of expression guaranteed under Article 10 of the Convention for Protection of Human Rights and Fundamental Freedoms. By a 7-2 verdict, the court in 1995 upheld the ban saying the video violated UK’s strong blasphemy laws.

The Indian SC has refused to be cowed down by the display of anger and violence against films and books, be it ‘Padmavat’ or ‘An Insignificant Man’, and stoutly upheld artistic freedom. If the judiciary almost always protected freedom of speech, right thinking people remained selectively silent when macabre violence, similar to cow vigilantism, visited innocent commoners and uncorked the bottle containing the djinn of poison.

Why did they not express anguish and outrage when 59 kar sevaks were burnt alive aboard Sabarmati Express on February 27, 2002, by a mob of nearly 1,000 people in Godhra? This incident was obscured by the heart wrenching communal carnage that killed 790 Muslims and 254 Hindus in Gujarat.

The then government attempted to pull a carpet over the Godhra killings. It appointed Justice U C Banerjee Commission, which ruled out conspiracy and found it to be an internal fire. Mercifully, Gujarat HC struck down the commission’s finding. It failed to break the silence of right thinking people.

They remained silent when many Kashmiri Pandits were systematically butchered and others were forced to flee. Their numbers in the Valley rapidly dwindled, from 15% to an insignificant 0.1%. It started with Wandhama massacre in 1998, when 23 Pandit family members — four children, nine women and 10 men — were butchered by Kalashnikov-wielding Muslim militants. It was followed by massacre of 35 Hindus at Chamba by Hizbul Mujahideen. No right thinking person saw the poison spreading.

In 2002, Jammu’s Raghunath Temple was attacked twice in eight months. Two attacks left 25 devotees dead and scores injured. In September 2002, attack on Akshardham Temple in Gandhinagar killed 30 devotees. In 2006, serial bomb blasts at Sankatmochan Temple and other places in Varanasi killed 28 persons. All these failed to make right thinking people see the poison spreading. When to exercise right to free speech is a choice. It cannot be forced. And we must respect the right to freedom of choice, especially of right thinking people. But raising voice against violence, howsoever selective it might be, must be encouraged to arrest the spread of poison.

SC: Remarks on premarital sex are Bona fide opinions

From the archives of The Times of India 2010

‘Remarks on premarital sex bona fide opinion’

There was redemption for south Indian actress Khushboo after five long years of battling 23 cases filed across Tamil Nadu against her remarks on prevalence of premarital sex in Indian cities. Putting an end to her harassment, the Supreme Court quashed all proceedings pending against her in trial courts, saying the complaints woefully lacked in evidence.

A bench comprising Chief Justice K G Balakrishnan and Justices Deepak Verma and B S Chauhan, said those who filed complaints against the 39-year-old actress were ‘‘extra-sensitive’’ about the remarks made by her in 2005 and had no proof that these had disturbed the peace or hurt people’s sentiments.

The Madras HC had on April 30 in 2014 refused to stay the proceedings in trial courts. Khushboo had introduced herself in the SC as a ‘‘famous south Indian actress, a mother of two young children’’ and said she was being harassed and victimized at the behest of people with vested interests who had filed 23 ‘‘false, frivolous and mala fide’’ complaints.

She had added that her fundamental right of freedom of speech and expression could not be curtailed by such persons.

The apex court agreed with Khushboo that her comments, to a news magazine, were in response to a survey conducted about pre-marital sex in big cities in India and that it was a bona fide opinion.

Freedom of speech should not become a licence for vilification: SC

The Times of India, Mar 7, 2016

Dhananjay Mahapatra

Freedom of speech and expression has never been absolute. Neither in India nor anywhere in the world. The Indian Constitution guarantees it as a fundamental right and the Supreme Court has taken pains to give it a liberal and expansive interpretation through the years.

For the last one month, right to free speech has been the focus of every debate. Some students shouted certain slogans in the precincts of Jawaharlal Nehru University. It taught us the meaning of "azadi" or independence. Wish the slogans were as clear as they are being interpreted now — that the call for azadi was only from problems within the country. This is one view.

Some others perceived the slogans to be abusive to the concept of India. Leaving aside the condemnable and punishable violent actions of a section of lawyers in Patiala House court, is it not possible for a section of society to hold the view that the nature of slogans raised in JNU was unacceptable? Could both these views not co-exist without there being a polarising war?

Freedom of speech has always been an instrument not to counter but to slight others, especially in the political arena. Immediately after formation of 'Indian National Congress' in 1885 headed by Womesh Chandra Banerjee, signs of muscle -flexing through speech began. The lack of importance to Muslim leaders in INC did not go down well with Sir Syed Ahmed.

In an impassioned speech in Meerut in 1888, Sir Syed said, "At the same time you must remember that although the number of Mahomedans is less than that of the Hindus, and although they contain far fewer people who have received a high English education, yet they must not be thought insignificant or weak. "Probably they would be by themselves enough to maintain their own position. But suppose they were not, then our Mussalman brothers, the Pathans, would come out as a swarm of locusts from their mountain valleys, and make rivers of blood to flow from their frontier in the north to the extreme end of Bengal. "This thing — who, after the departure of the English, would be conquerors — would rest on the will of god. But until one nation has conquered the other and made it obedient, peace could not reign in the land. This conclusion is based on proof so absolute that no one can deny it."

How would you classify this? Free speech, political speech or a plain threat? The context in which the speech is made assumes significance in most situations.

Visualise a situation. An inflammatory speech made in a remote corner of the country may escape the hawkish attention of 24x7 news television channels.

But a similar speech in the heart of the capital aired repeatedly by TV channels can have a very different effect. Irrespective of the connotations of the speech, instant politicisation takes over, making the matter worse. And, we do not yet have a definition of "inflammatory".

This is what probably happened to the speeches and slogans made in JNU. Each seamlessly used free speech to berate and denigrate the other. They freely branded opponents as anti-national or anti-Dalit. The media too got involved and divided.

JNUSU president Kanhaiya Kumar had the last laugh. After release on bail, he made an impassioned speech. But he too resorted to branding when he said, "Those in media siding with JNU are actually not speaking for JNU - they are calling a spade a spade." What did this convey, if you are not agreeing with us, then you are not speaking the truth. The Supreme Court has zealously protected the right to free speech and expression through many landmark judgments - Shakal Papers (1961), Kedar Nath Singh (1962), Bennett Coleman (1972) and Indian Express (1984). The SC never diluted any of the eight restrictions on free speech provided under Article 19(2), inserted through the first constitutional amendment in 1951 by the Jawaharlal Nehru government. At the same time, it never foresaw free speech acting as a catalyst for a clash of ideas or ideologies. It had hoped that free flow of ideas through free speech would make democracy more vibrant.

In Kedar Nath Singh case [1962 AIR 955], the SC had said, "This court, as the custodian and guarantor of the fundamental rights of the citizens, has the duty cast upon it of striking down any law which unduly restricts the freedom of speech and expression with which we are concerned in this case.

Judiciary has continually expanded its definition

The Times of India, Nov 05 2015

Arun Jaitley

Media's Right to Free Speech

India's judiciary has continually expanded the definition of this right since Independence The Constitution gave a pre-eminent position to the Right to Free Speech. Whereas, the other fundamental rights could be restricted thro ugh reasonable restrictions, the Right to Free Speech could only be restricted if the restriction had nexus with any of the circumstances mentioned in Article 19(2) of the Constitution. India's post-Constitution history is an evidence of the fact that many fundamental rights have seen their weakening in the past 65 years. The Right to Life and Liberty was literally extinguished during the Emergency . The Right to Trade has been adversely affected in the days of the regulated economy . The Right to Property was repealed during the Emergency .

However, the Fundamental Right of Free Speech and Expression has been consistently strengthened and never narrowed down. So a national policy of expanding and strengthening the right has continuously existed over a period of time.

In the initial years of the Constitution, the Supreme Court held that the excessive licence fee for starting a newspaper was constitutionally invalid.Subsequently , in the very first decade, it was held that the Wage Board imposing an unbearable burden on a media organisation, would offend Free Speech.

Can the business or commercial interest of a newspaper be segregated from the Right of Free Speech? Would the business of a newspaper fall within the domain of the Right to Free Trade or would it impact on the Right to Free Speech?

In the Sakal newspaper's case, the Supreme Court was concerned with the policy imposed in 1960, wherein the government decided to regulate the selling price of a newspaper. The sale price would depend on the number of pages. The government contended that it was only restricting the Right to Trade by a reasonable restriction in consumer interest. The Supreme Court held that, if a newspaper was compelled to raise its price on account of the thickness of the newspaper it would have two consequences, either the thickness, ie, the content would be reduced or alternatively, a newspaper would be compelled to raise its price, and, there was empirical evidence to suggest that an increase in price leads to loss in circulation.Thereby, the Right to Circulate is also a part of Free Speech.

Similarly , when the government restricted the size of a newspaper on the ground that newsprint was scarce on account of paucity of foreign exchange and excessive imports would lead to an outgo of foreign exchange, the Supreme Court held that curtailing the number of advertisements in a newspaper would impact Free Speech, since advertisements themselves supplement the cost of content.

In a landmark judgment in the newsprint customs duty case, the court was confronted with the question whether imposition of customs duty on newsprint can be challenged on the ground of it being `Tax of knowledge'. The court held that the business of a newspaper could never be segregated from its content.

In the Constituent Assembly , Ramnath Goenka had raised the issue that future governments would not resort to crude methods like censorship but would pinch the pockets of the newspapers. Agreeing with this view, the court held that newspapers shape the human mind, excessive tax on a newspaper itself could impact Free Speech if the purpose of the tax was not merely to raise revenue but to excessively burden the economy of the newspaper.

In the case of any trade, business or profession, taxation would be struck down only if it is confiscatory in nature, that is, if it makes the business impossible. But in the case of a media organisation, if it adversely impacts the Right to Free Speech, that is, makes it excessively costly and prohibitive, then the tax itself can be challenged as an invasion of Free Speech.

Most other democracies have not accepted the American precedent, but we in India went ahead and accepted this particular right. I think in its entire evolution, the customs duty case ­ in its exposition of law and expanding the right ­ became a landmark, in that the distinction between the business of Free Speech and the right of actual content of Free Speech itself, was obliterated.

Carrying this logic further, the Supreme Court, in the Tata Yellow Pages case, included commercial Free Speech, ie, advertising, to be a part of Free Speech. This proposition is still doubtful, since it could enable `paid' news to take the benefit of commercial speech being a part of Free Speech.

Paid news is a reality , and therefore if you follow the dicta of the American judgments which Tata Press has followed in India, will Free Speech also provide a right which extends to paid news? Obviously it does not sound logical, and therefore this issue has not come up before the courts. However, if there was to be a penal provision against paid news, it would have to be tested on the touchstone of whether it violates Free Speech or not.

SC refuses to ban Kancha Ilaiah book

Freedom of speech: SC refuses to ban Dalit writer Kancha Ilaiah book, Oct 15 2017: The Times of India

The Supreme Court has refused to ban controversial book `Samajika Smugglurlu Komatollu' written by prominent Dalit thinker and writer Kancha Ilaiah saying that the author's fundamental right of freedom of speech and expression should not be unnecessarily curbed.

A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud dismissed a PIL filed by a lawyer seeking its direction to the government to ban publication and circulation of the book.

Petitioner K V Veeranjaneyulu, who is also a member of Delhi-based Arya Vy syas Officials and Professional Association, alleged that the writer had made baseless allegations against certain castes in his book and tried to divide the society on caste lines. He also pleaded the court to ban certain chapters of his book `Post-Hindu India'.He said a criminal case had also been registered against him in Andhra Pradesh for hurting sentiments of people belonging to certain castes and urged the court to ban the controversial book.

“Kancha Ilaiah says in his book that Arya Vysyas Baniyas disliked backward communities, Scheduled Casts and Scheduled Tribes.They are engaged only in business and they are only money-making communities by illegal ways, they bribe government officials, they encourage corruption and hide the monies under the earth without paying taxes from ancient times,“ the petitioner said.

The bench, however, rejected his plea and said, “Suffice it to say that when an author writes a book, it is his or her right of expression. We do not think that it would be appropriate under Article 32 of the Constitution of India that this court should ban the bookbooks.“

“Any request for banning a book of the present nature has to be strictly scrutinised because every author or writer has a fundamental right to speak out ideas freely and express thoughts adequately .Curtailment of an individual writerauthor's right to freedom of speech and expression should never be lightly viewed. Keeping in view the sanctity of the said right and also bearing in mind that the same has been put on the highest pedestal by this court, we decline the ambitious prayer made by the petitioner,“ the bench said.

Shreya Singhal judgment, 2015: lessons for 2020 and beyond

APAR GUPTA, November 29, 2020: The Times of India

Three lessons for Kerala govt from Shreya Singhal judgment

In March 2015, when the Supreme Court struck down the draconian Section 66A as unconstitutional in the Shreya Singhal judgment, it referred to Mark Antony’s speech in Shakespeare’s Julius Caesar to distinguish between free speech and incitement. Here, Antony repeatedly referred to Caesar as an “honorable man”, who still incited a crowd to mutiny.

Governing speech is a complex matter, and the Kerala government was faced with the same predicament last week. It first promulgated, and then repealed through a subsequent ordinance, a provision to criminally prosecute online content. This short-lived provision was Section 118A, inserted into its Police Act. Section 118A followed in the steps of Section 66A as well as Section 118D of the Kerala Police Act. It contained vague adjectives to criminalise online posts and communications. In this case, the Shreya Singhal precedent served as useful guidance on the legislative ambit for regulating online speech. The judgment provided early support for civil society groups, media critiques and an active political debate. It led to several PILs in the High Court of Kerala, where the state government submitted that it would walk back on its harsh ordinance. This may seem like a quick and decisive victory, but concerns around this issue are still alive. First, remember that the objective of these provisions was ostensibly progressive. They were meant to shield social groups that face disproportionate online abuse and attacks on account of gender, caste and religion. The history of Section 66A shows that shortly after enactment, it was also defended as an attempted bulwark against the proliferation of online threats, hate speech and misinformation. However, they were trapped in their own language, which lacked specificity and contained the potential for abuse of the law’s intent. This flaw was also present in Section 118A, which though relatively narrowly tailored, contained phrases such as “humiliating”. Again, it was the prospect of its implementation that was a bigger cause for nervousness. More importantly, given that prosecution rests in the hands of police, who face systemic challenges and political interference, these provisions became a tool for chilling dissent and citizens’ demands for accountability. This peaked with the prosecution of Shaheen Dhanda and Renu Srinivasan in Palghar who had, in a Facebook post, criticised a general shutdown in Maharashtra following the demise of Balasaheb Thackeray. This brings us to the second takeaway from the Shreya Singhal judgment. Despite Section 66A being struck down as unconstitutional, our study (conducted with my co-author Abhinav Sekhri) has shown that it is still being used across India. This data was taken to the Supreme Court, which was shocked that Section 66A cases were still being registered and prosecuted. This is the reality of criminal law in our country. Quite often, a weak and general rule of law framework gives rise to practices that stray from the objectives of rule-making. Therefore, there was enough experience for experts to view the insertion of Section 118A with trepidation, and warn of the potential impact on online speech that criticises or demands answers from powerful entities within Kerala. Stepping back from these two core problems, it is important to consider that the online space has changed dramatically since 2013, when the Shreya Singhal petition was filed. There are close to 700 million active broadband connections in India and social networking is a way of life. While this certainly serves the values of civic participation, it also poses challenges. Online conversation poses risks to individuals and groups, which require a fuller toolkit with law as an important element within it. Here, we must lean on established human rights norms that look beyond criminal law, like the International Covenant on Civil and Political Rights.

It is this approach that was conveyed in the statement of the Malayalam film industry’s Women In Cinema Collective which asked for “an approach which combines social, administrative and legal responses to the problem and to move away from excessive criminalisation.”

This brings us to the third and final lesson of the Shreya Singhal judgment. Section 66A was inserted through a hasty amendment in Parliament, a bundle of laws hurried through in the aftermath of the Mumbai terror attacks. The urgency came at the cost of debate and parliamentary scrutiny. Similarly, the Kerala government rushed into an executive ordinance for Section 118A, rather than proposing the law and debating it thoroughly in the state assembly. Whatever the costs of legislative democracy in terms of delay, it also provides the opportunity for rigorous consideration. One hopes that any future such regulation will see the wisdom of this democratic approach. Gupta is a lawyer and the executive director of the Internet Freedom Foundation.

Criticising law & order situation a right: HC, 2020

Rajesh Kumar Pandey, December 24, 2020: The Times of India

Criticising law & order situation part of right to free speech: HC

Prayagraj:

“Expressing dissent on law and order situation is the hallmark of a constitutional liberal democracy like ours and is constitutionally protected under Article 19 (that guarantees right to freedom of speech and expression),” the Allahabad high court recently observed while quashing an FIR against a person for alleged remarks that the “UP CM has transformed the state into a jungle raj in which no law and order prevails”.

Allowing a writ petition filed by one Yashwant Singh, who had made this remark on Twitter, the high court said it didn’t “find even remotely a commission of offence” under two sections mentioned in the FIR, reports Rajesh Kumar Pandey.

No offence made out under IT Act and IPC, says HC

The FIR was registered of August 2, 2020 under Sections 500 (defamation) and 66-D (offence of cheating by personation by using computer resource) of Information Technology (Amendment) Act at Bhognipur police station of Kanpur Dehat district. It alleged that Singh had also made reference to various incidents of abduction, demand of ransom and murders in his tweet. The petitioner’s counsel challenged the FIR before the court, contending that right to comment on the affairs of the state is well within his constitutional right envisaged under Article 19 of the Constitution.

“Mere dissent does not amount to criminality and the FIR has been lodged only with a view to coerce the petitioner to stop expressing his dissent against the state government,” his counsel said, and requested the court to quash the FIR.

While quashing the FIR and the entire consequential proceedings against the petitioner, a division bench comprising Justice Pankaj Naqvi and Justice Vivek Agarwal said, “It is not the case of prosecution that while committing the overt act, the petitioner either tweeted using other’s twitter handle or there was any allegation of cheating. No offence under Section 66-D of IT Act is made out. As far as Section 500 IPC (defamation) is concerned, the same is also not made out, as the alleged tweet cannot be said to fall within the mischief of defamation.”

The freedom is not absolute: SC, 2021

January 28, 2021: The Times of India

The Supreme Court refused to grant interim protection from arrest to makers of web series ‘Tandav’, who are seeking quashing of FIRs against them for hurting religious sentiments, while observing that “freedom of speech and expression is not absolute”.

A bench of Justices Ashok Bhushan, R Subhash Reddy and M R Shah turned down the plea made by senior advocates Fali S Nariman, Mukul Rohatgi and Siddharth Luthra to stay the FIRs, but said the petitioners could approach other fora, including the trial court, for relief. The court said a person cannot claim “an absolute right to freedom of speech and expression” and it is subject to restrictions.

The petitioners — director Ali Abbas Zafar, Amazon Prime India head Aparna Purohit, producer Himanshu Mehra and Actor Mohammed Zeeshan Ayyub — contended that FIRs had been filed in different states and they would be harassed by their police for the same alleged offence.

Nariman said FIRs were being filed even after the alleged objectionable part had been removed and apology tendered. He said nothing remained in the case and no coercive action should be taken against the makers and cast of the web series. Rohatgi also cited that the apex court had granted similar relief in cases involving M F Hussain and Arnab Goswami. He said the series is a political satire and if people become so sensitive that they cannot take satire in good spirit, there would be no freedom of speech in the country.

The bench was not convinced with the submission and refused to grant the protection. However, it agreed to examine whether FIRs could be clubbed together and issued notice to Uttar Pradesh, Madhya Pradesh, Karnataka, Maharashtra, Bihar and Delhi where FIRs had been lodged against them.

“We issue notice in the writ petition limited to transfer and clubbing of the FIRs with first FIR. Let notice be issued, returnable within four weeks. We make it clear that the issue of notice in this petition shall not preclude the petitioners to approach the concerned courts for anticipatory bail/bail as per law,” the bench said. The bench has sought response from states such as UP, MP, Karnataka, Maharashtra, Bihar and Delhi on the pleas.

Right to reputation trumps right to free speech: HC, 2021

Usha Das, Dec 23, 2021: The Times of India

A court put an interim stay on authoring, making, publishing or further selling a book based on Yes Bank former MD and CEO Rana Kapoor, accused in a cheating and money-laundering case, saying “the right to reputation of a living individual cannot be sacrificed and crucified at the altar of the right of freedom of speech and expression of another”.

Additional district judge Rajesh Kumar also put an interim stay on a proposed movie to be made based on the book “The Banker Who Crushed His Diamonds: The YES Bank Story”.

The suit stated that the book pertained to Kapoor’s life and matters that are sub judice. It claimed that observations and false allegations have the propensity to cause immense and irreparable harm to his reputation. The suit also claimed that the proposed movie will be in grave breach of his fundamental right to a fair trial, reputation and privacy. The court said portions of the book that make readers think that he is an ambitious villain are necessarily to be restrained from being published until proven in a court of law.

Laws that limit free speech

As in 2022

SANTOSH DESAI, May 10, 2022: The Times of India

The proposed buy-out of Twitter by Elon Musk has ignited a fresh debate about freedom of expression (FOE). Musk, who calls himself a “free speech absolutist”, has railed against what he sees as censorship and promised that under him, Twitter would allow all expression “which matches the law”. 
There should be no debate on the face of it, given that freedom of speech has always been thought of as a vital ingredient of a vibrant democracy. And yet, today, this prospect has hardly met with universal approval. What is interesting about this idea is that while historically it has been a favourite theme of the liberals, today, it is the right that shows a greater interest in this idea. As Musk argues, the liberal side moved away from its earlier ideals because those no longer suit it, or is something else at work? 
It is important to recognise that old rules and mental models also necessarily change when technology changes the playing conditions. Technology has not merely changed our behaviour, but it has transformed the meaning of some old and highly familiar ideas. We stream content and use assets rather than own them and have even created a new form of money that requires no central certification. Media has changed beyond recognition, and politics is now enacted as much on social media as on the streets. 
So why should it be surprising if our old ideas about FOE too need to be revisited? In any case, the truth is that all speech has always required moderation and regulation. It needs to take note of the context and calibrate itself accordingly. Public expression has always needed to be carefully modulated, for words have consequences. The modes of regulation have tended to be both formal and informal, externally imposed and self-determined. Institutions like courts and classrooms mandate a certain standard of behaviour, while we follow norms laid down by the culture that surrounds us in our own lives. We are polite to those older than us, and we refrain from saying what we really think in most social situations, knowing a price must be paid if we choose to transgress these unwritten boundaries. We are different people in the office than we are at home. We use a completely different vocabulary depending on whether we are with friends, colleagues, or at home.

Given that our access to any form of media was virtually non-existent, mobilising public support for any new transgressive idea was very hard work that took a lot of time and effort. Even when we spoke our minds without restraint, the radius of influence of most ordinary individuals was pitifully small. This meant that, in most cases, even the most inflammatory speeches translated into little effect. Freedom of speech, even when it existed in its untrammelled form, had an in-built limit to its influence. The absolute regard for FOE was a direct consequence of it being so difficult to exercise meaningfully.

That has changed completely today. The nature of digital technology and social media institutions has transformed the meaning of freedom of speech. Not only does everyone hold the microphone, but it is also possible to find kindred spirits who feel the same way as one does and build a community very easily as and it is possible to do so instantly. We can directly address, challenge and even abuse those in positions of power and influence. And strangely, even as the power of public speech has grown exponentially, the consequences attached to such an act have shrunk.

The democratisation of broadcasting has also meant that information today flows freely without any certification. Media in the past could be accused of being slanted or pandering to the least common denominator, but it maintained a healthy measure of self-regulation. This meant that we could trust information circulated around us with a reasonable degree of confidence. Today, that is no longer the case. News today doesn’t need to be true; it only needs to be popular. The media is now responsible for only a small part of the total information that flows through social media channels.

To argue for an unchanged mental model of the idea of FOE in such a vastly changed context makes little sense. In a world where individual voices could barely be heard and where the power of the state and its institutions was overwhelming, the idea of being able to speak one’s mind without restrictions was a goal worth striving for with as few qualifications as possible. Today, when it has become so much easier for ordinary citizens to speak their minds freely and even to use that freedom to lie, abuse and systematically harass others, the pressing need is to regulate the disruptive power of untrammelled speech. Then we have the bots. The ease with which anyone can run a vicious targeted campaign that can destroy and alter fortunes, political and otherwise, is another consequence of the new technological landscape.

Just as we did in the case of motorised traffic, a new reality called for a new set of rules and conventions. As traffic became faster and more complex, the rules governing it changed. The idea of traffic lights, lanes, expressways and their corresponding rules are examples of how regulatory systems evolve as technology does. It would be foolish to argue for unrestricted freedom of expression when it comes to driving because there were no traffic lights in an earlier era. Our standards must necessarily change as the world does. The danger is that in the name of a hallowed idea like FOE, we allow the unhindered degradation of our public discourse. As to how we actually go about regulating this new beast is another question and an extremely complex one at that. The question to debate is not whether to design some filters for free speech but how.

Limits to freedom of speech

Abuse not covered

Rajesh Kumar Pandey, July 18, 2022: The Times of India

Prayagraj: Observing that “the Constitution recognises freedom of speech but this right does not extend to hurling abuses against the PM and other ministers”, the Allahabad high court has refused to quash an FIR lodged against one Mumtaz Mansoori of Jaunpur. Mansoori had been booked for making derogatory remarks against PM Narendra Modi, home minister Amit Shah and other ministers on social media.


Dismissing Mansoori’s petition, a division bench comprising Justice Ashwani Kumar Mishra and Justice Rajendra Kumar observed, “Although the Constitution of this country recognises freedom of speech with every citizen, but such right does not extend to hurling abuses or making derogatory remarks against any citizen, much less the PM or other ministers of the Government of India (sic). ”


It was alleged in the FIR registered in 2020 that Mansoori used highly derogatory remarks against Modi, Shah and other Union ministers. He had been booked under IPC Section 504 (intentional insult with intent to provoke breach of peace) and Section 67 of IT Act (punishment for publishing or transmitting obscene material in electronic form).

Subsequent to this, a criminal case was registered against Mansoori at Meerganj police station. Challenging the FIR, Mansoori had moved the high court with a plea to get it quashed.

However, refusing to quash the FIR, the court on July 15 dismissed the writ petition, observing: “The FIR clearly discloses commissioning of cognizable offence. We find no good ground to interfere in the present writ petition filed with a prayer to quash such an FIR. The authorities shall be at liberty to proceed in the matter in accordance with law and conclude investigation at the earliest. ”

2018: Book withdrawn after threats

July 22, 2018: The Times of India

Threats of violence forced award-winning Malayalam writer S Hareesh to withdraw his novel on Saturday. The writer has disconnected his phone and gone off social media after right-wing fundamentalists targeted him.

His novel ‘Meesha’ (moustache) was being serialised in Mathrubhumi, a Malayalam weekly, and three chapters had been published. After the second chapter appeared last week, some right-wing elements took offence to a conversation between two characters. One of the characters tells the other that women dressing up to visit temples sends out the message that they are ready for sex. The novel is a comment on the caste system as it prevailed in Kerala 50 years ago.

Right-wingers said the conversation hurt the religious sentiments of Hindus. Kamalram Sajeev, editor of Mathrubhumi, tweeted: “...literature is being mob lynched, darkest day in Kerala’s cultural history,..” He told TOI that “he was under a lot of stress. He didn’t know what to do as the women in his family were being targeted”.

Courts should not be maligned: SC

Dhananjay Mahapatra, Can’t use free speech to malign courts: SC, August 15, 2020: The Times of India

In convicting activist-advocate Prashant Bhushan for contempt, the Supreme Court tread cautiously in dealing with the age-old clash between right to free speech and contempt of court to rule that free speech was important but could not be used to maliciously interfere with the administration of justice.

A bench of Justices Arun Mishra, B R Gavai and Krishna Murari said a citizen was entitled to make fair criticism of judges and the judiciary but free speech must remain entrenched within the boundaries of reasonable restrictions listed under Article 19 (2). “If a citizen, while exercising his right under Article 19 (1), exceeds the limits and makes a statement, which tends to scandalise the judges and the institution of administration of justice, such an action would come in the ambit of contempt of court,” it said.

The bench laid down two more characteristics of free speech that would amount to contempt of court. “If a citizen makes a statement which tends to undermine the dignity and authority of this court, the same would come in the ambit of ‘criminal contempt’. When such a statement tends to shake the public confidence in judicial institutions, the same would also come within the ambit of ‘criminal contempt’,” it said.

The bench clarified that criticism of a judge, as an individual and not as a judge, would not fall in the ambit of contempt. “However, when the statement is made against a judge as a judge and which has an adverse effect on the administration of justice, the court would certainly be entitled to invoke the contempt jurisdiction,” it said.

“No doubt that while exercising the right of fair criticism under Article 19(1), if a citizen bonafidely exceeds the right in the public interest, this court would be slow in exercising the contempt jurisdiction and show magnanimity. However, when such a statement is calculated in order to malign the image of the judiciary, the court would not remain a silent spectator. When the authority of this court is itself under attack, the court would not be an onlooker,” Justice Gavai, who authored the 108-page judgment, said.

“The court will act with seriousness and severity where justice is jeopardised by a gross and/or unfounded attack on the judges and where the attack is calculated to obstruct or destroy the judicial process,” the bench said and quoted a judgment by Justice Krishna Iyer on this issue.

“Justice Iyer further observed that after evaluating the totality of factors, if the court considers the attack on the judge or judges to be scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream,” the bench said.

Eulogising leader of banned outfit

January 19, 2023: The Times of India

Chennai : There is no bar to eulogise Velupillai Prabhakaran, leader of the banned Liberation Tigers of Tamil Eelam (LTTE), at an oratorical event organised in Chennai to mark his 68th birth anniversary, said Madras high court.


“When the oratory competition is conducted on the eve of 68th birth anniversary of late Prabhakaran, a condition that speech should not eulogise the leader of the banned outfit is not just and appropriate… Freedom of speech and expression should not be restrained,” Justice G Chandrasekharan said last week, concurring with the submissions of advocate S Doraisamy.


He, however, made it clear that the speech should not be against the sovereignty of the nation and should not affect the sovereignty of the friendly SAARC nations.


The judge was passing orders on a petition filed by film-maker Pugazhenthi Thangaraj, represented by his counsel Doraisamy, assailing three conditions laid down by theKoyambedu police to allow the programme. On December 3, police had rejected a request made by the petitioner to organise the event which was to be held on December 10. On December 14, HC directed police to permit the programme with ‘suitable conditions’. On December 21, police gave permission with several riders.


While the first condition said the speech should not eulogise the banned outfit or its leaders either directly or indirectly and should not be against the sovereignty of the nation, the second condition limited the event to three hours – from 10am to 1pm. The third condition mandated the organisers to videograph the entire programme and submit it to police.

J&K called ‘occupied’

April 28, 2022: The Times of India

Srinagar: The Jammu and Kashmir High Court ruled that calling Kashmir “occupied Kashmir” and its residents as “slaves” does not enjoy protection under the Constitution’s Article 19 (A) on right to freedom of speech and expression.


A bench of Justice Sanjay Dhar, hearing a petition filed by advocate Muzamil Butt seeking quashing of an FIR against him under the Unlawful Activities (Prevention) Act, remarked: “It is one thing to criticize the government for its negligence and express outrage on the violation of human rights of the people, but it is quite another to advocate that the people of a particular part of the country are slaves of the government of India or that they are under the occupation of armed forces of the country,” online portal Bar and Bench reported.


Police had registered an FIR against Butt for his Facebook post in which he criticized the killing of seven civilians in an explosion at the encounter site in Larnoo village in October 2018.


Muzamil Butt had also expressed outrage on social media platforms at other incidents of violence, which, he argued, was within his right to free speech.


“By making these comments, Butt was supporting the claim that Jammu and Kashmir is not a part of India,” the court said. 
IANS

Limits listed in constitution are exhaustive enough/ SC, 2023

Dhananjay Mahapatra, January 4, 2023: The Times of India

New Delhi : The Supreme Court ruled that no further curbs could be imposed on the fundamental right to freedom of speech and expression, holding that the existing eight “reasonable” restrictions under Article 19(2) of the Constitution are “exhaustive”. 
A bench of Justices S Abdul Nazeer, B R Gavai, A S Bopanna, V Ramasubramanian and B V Nagarathna were unanimous on the issue — an important determination that comes in the backdrop of concerns ranging from proliferation of social media andits alleged misuse and violation of citizen’s privacy and increasingly emotive rhetoric deployed by politicians in times of intense polarisation. 
The reference of “curbing free speech of public functionaries” to a Constitution bench was prompted by the statement of Samajwadi Party leader Azam Khan who, as minister in UP government, termed the 2016 gang-rape incident on Noida-Saharanpur highway as an “opposition conspiracy” and a bid to defame the government because the “elections were near”.

Details

Dhananjay Mahapatra, January 4, 2023: The Times of India

New Delhi : The five-judge Constitution bench voted in favour of freedom of speech, and said the role of the courts is to protect the fundamental rights and not to insert more restrictions to constrict the valued freedoms guaranteed by the Constitution. “The role envisaged in the constitutional scheme for the court, is to be a gatekeeper (and a conscience keeper) to check strictly the entry of restrictions into the temple of fundamental rights. The role of the court is to protect fundamental rights limited by lawful restrictions and not to protect restrictions an d make the rights residual privileges. ”


While the Justice Ramasubramanian-authored verdict was signed by Justices SA Nazeer, BR Gavai and AS Bopanna, Justice BV Nagarathna wrote a separate judgment, agreeing on certain conclusions of the majority verdict and differing on others. While agreeing to reject fresh curbs on free speech, she said, “Article 19 (1)(a) (right to free speech) serv es as a vehicle through which dissent can be expressed. The right to dissent, disagree and a dopt varying and individualistic points of view inheres in every citizen of this country. ”


“In f act, the right to dissent is the essence of a vibrant democracy, for it is only when there is dissent that different ideas would emerge which may be of help or assist the governme nt to improve or innovate upon its policies so that its governance would have a positive effect on the people of the country which would ultimately lead to stability, peace and development which ar e concomitants of good governance,” shesaid.


The Justice Ramasubramanian-authored judgment comprehensively dealt with the Article 19(2) restrictions in the original Constitution adopted on Novem ber 26,1949, and the additions made through the first constitutional amendment in 1951. It said, “ The r estrictions under Article 19(2) are comprehensive enough to cover all possible attacks on the individual, groups/classes of p eople, the society, the court, the country, and the State. This is why this Court repeatedly held that any restriction which does not fall within the four corners of Article 19(2) will be unconstitutional. ”


The Constitution allows for “reasonable restrictions” on free speech on grounds of sovereignty and integrity of India, national security, frien dly ties with foreign countries, public order, decency, morality, contempt of court, defamation and incitement to a criminal offence.


After examining the restrictions on free speech in the US, UK, Australia and European Union countries, Justice Ramasubramanian said, “That the eight heads of restrictions contained in Article 19(2) are exhaustive, can be established from another perspective also. The nature of the restrictions on free speech imposed by law/ judicial pronouncements even in countries where a higher threshold is maintained, are al most similar. ” The SC said that exercise of all fundamental rights by all citizens would be possible only when everyone respected the rights of others. However, it saidco mpeting rights of individuals cannot become afertile ground for growing additional restrictions on the right of freespeech.

Malicious lies cannot be freedom of speech: HC

February 20, 2022: The Times of India

Malicious lies cannot be freedom of speech, says HC; orders tweak in video

New Delhi: Malicious falsehood cannot be treated as freedom of speech, Delhi High Court has said, asking the competitor of a coaching institute to take down a few sentences of its YouTube video alleging falsities against its rival.


Justice Asha Menon, who was dealing with a lawsuit by FIITJEE against the defendant Vidya Mandir Classes and others, said that while some latitude is to be given for hyperbole and commendatory expression, there can be no license to anyone to denigrate the competitor.


The court noted in its recent order that care is to be exercised to avoid disparagement of another’s products or denigration of their goodwill and reputation built by a competitor. In the plea, the institute sought a direction to the defendants to immediately take down the YouTube videos against it. Justice Menon noted that in the video in question, the defendant has used some offensive words against the plaintiff, such as kidnapping, which are inappropriate, untrue on the face of it, and cannot be allowed to remain.


The court found nothing amiss in criticism of the plaintiff’s refund policy based on the decisions of the Consumer Disputes Redressal Forum or criticism of their various programmes since these are only in the nature of competitive advertisements. However, it said that to accuse someone of kidnapping, extortion, and so on, is different.

“It directly impacts the parent who would be discouraged with such a negative description of the plaintiff. These words cannot be allowed to remain,” the court said. While some latitude is to be given for hyperbole to show down the competitor, there can be no license to anyone to denigrate them, it added.

2017: WhatsApp message can get you arrested

How a WhatsApp message can get you arrested, November 20, 2017: The Times of India

Eighteen-year-old Zakir Ali Tyagi was just kidding when he asked, on Facebook, exactly how the river Ganga was a “living entity”. He also went on to discuss the BJP’s Ram Mandir plans. For these random comments on Facebook, the Muzaffarnagar teen was made to spend 42 days in jail, paying bribes even to use the toilet. He was picked up by the police in April 2017, and booked under Section 420 (cheating) of the IPC and Section 66 of the IT Act. He was brutally beaten, and called a terrorist. By the time he emerged from jail, he had lost his job at a nearby steel plant.

Across Indian states, citizens like Tyagi are being picked up by the police for unguardedcommentson social media, and the arbitrariness of these arrests has created a climate of anxiety. In most cases to hit the news, those charged have been ordinary people, without the clout to incite mass violence. On November 2 this year, Meerut-based journalist Afghan Soni was charged with defamation and “computerrelated offences” (Section 66 of the IT Act) for posting a derogatory video of Narendra Modi. What was the “offensive” video? Modi asking a rally about “achhe din”, and getting his response not from a crowd of people, but a herd of goats.

Social media arrests are not new, and nor are they a uniquely Indian form of repression. The UPA-era Section 66A of the IT Act, scrapped by the Supreme Court in 2015, was broadly wordedenough to book you if you caused annoyance, inconvenience, insult or injury online. In 2012 and 2013, a girl from Palghar, Maharashtra was arrested for criticising Bal Thackeray’s state funeral on Facebook, another girl for merely “liking” that comment; a professor from Kolkata was arrested for forwarding a cartoon about Mamata Banerjee; as was a man who tweeted about Karthi Chidambaram’s disproportionate wealth. But now, even though Section 66A is gone, the muzzling of speech continues unabated. And perhaps more than political dispensation, this is about the misplaced zeal of the criminal justice system, its general disregard for free speech, and its hypersensitivity to speech that irritates the political establishment.

India, like every other country in the world, places reasonable fetters on free expression. Theseinclude a threat to public order, dangerously stirring up religious sensitivities, caste slurs, defamation, child pornography, and so on. “But the real problem is the misuse of these legal provisions by police officials going overboard,” says N Ramachandran, a former DGP and president of the Indian Police Foundation. “Rather than rushing to arrest, the police should weigh the culpability and potential impact impartially, with utmost caution,” he says.

Other sections of theITAct, including clauses on obscenity and morphing, are being used to arrest people, says lawyer and internet freedom advocate Apar Gupta. The morphing of images may be a concern when women are misrepresented, but “by itself, a morphed image in a political caricature or piece of satire is not an illegal or criminal act”, he says. Similarly, lying and cussing are human activities that also exist online; they do notinherently deserve criminal sanction. Even rumours are not illegal by themselves, the CrPC should kick in only in instances where they might incite violenceor have other criminal implications.

WhatsApp is where these tensions are strongest. Given that the technology can be used to make trouble on a wide scale, the police has good reason to keep an eye on the platform. But increasingly, WhatsApp administrators have been booked even for harmless remarks. “There’s a trend of using Section 144 of the CrPC, which applies to unlawful assemblies, to WhatsApp discussions,” says Gupta. Recall the Indore collector who invoked it to deter any conversation about demonetisation, or theVaranasiDMwho saidthat any false content on a WhatsApp group was grounds for arrest. “This is a threat, rather than a fair legal warning,” says Gupta.

“Of course, thesechargeswill nothold in a court of law. But the person booked has to endure the system for a while, and deal with the harassment,” says lawyer Akhil Sibal. In his view, the internet is a uniquely liberating space, one that is harder to regulate, but it cannot be exempt from thelawsthat governtheoffline world. “This is the crossroads that the world is at, different jurisdictions are grappling with these questions,” he says.

These social media arrests are just symptomatic of a larger invasion of free speech, in Sibal’s view. “Look at the way everyone is outraging about the movie Padmavati without anyone having seen it. It’s the same with the trigger-happy criminal justice system,” he says.

Still, these arrests create a chilling effecton speech, says Gupta. The likelihood of someone, somewhere, taking legal action constrains you to watch your words more than necessary. Rather than a lively, democratic public sphere, we could end up with the hushed, wary conversations of a police state.

Nudity, obscenity

Kerala High Court, 2023

TNN, June 6, 2023: The Times of India

KOCHI: The Kerala high court said that “nudity and obscenity are not always synonymous”, as it discharged a suit against women’s rights activist Rehana Fathima, who’s facing multiple charges for uploading a video in 2020 of her young son and daughter painting on her bare torso.

Justice Kauser Edappagath said painting on a mother’s upper body by her own children as an art project “cannot be characterised as a real or simulated sexual act…” It was “harsh” to label the “innocent artistic expression” an act of using a child for sexual gratification, the judge said.

33-year-old Fathima was facing charges under various provisions of Protection of Children Against Sexual Offences Act (Pocso) as well as Juvenile Justice and Information Technology (IT) laws for uploading the video on social media. The prosecution had called Fathima’s act obscene and indecent.

The court said the right of autonomy over one’s body is often denied to women and they are bullied, discriminated against, isolated and persecuted for making choices about their body and life.

“The right of a woman to make autonomous decisions about her body is at the very core of her fundamental right to equality and privacy. It also falls within the realm of personal liberty guaranteed by Article 21 of the Constitution,” the judge said.

A trial court had earlier dismissed Fathima’s appeal against the case. She told the HC that the body painting was a statement against society’s default view that the naked torso of a female is sexualised in all contexts, but men can walk bare-chested.

The HC agreed with her contention and said: “It is wrong to classify nudity as essentially obscene or even indecent or immoral. ”

Obscene acts

No offence if in a private place: Bombay HC

The Times of India, Mar 20, 2016

Rosy Sequeira

Any obscene act in a private place causing no annoyance to others does not constitute offence, ruled the Bombay high court while recently quashing a complaint against 13 men who were arrested from a private party in a flat at Andheri (west).

A bench of Justice Naresh Patil and Justice A M Badar heard their plea to quash the FIR registered by Amboli police station under Indian Penal Code sections 294 (obscene acts and songs) and 34 (acts done by several persons in furtherance of common intention)

On December 12 2015, a journalist complained to the local ACP that a private party was going on in a flat where scantily-dressed women were dancing and making obscene gestures at customers and that the latter were showering money on them. A team from Amboli and Oshiwara police stations raided the place. Six women and the flat's owner were asked to visit the police station the next day while the rest were marched to the police station. The FIR was registered against the petitioners as well as others.

The petitioners' advocate Rajendra Shirodkar argued that the flat was not a public place where anyone could have accessed it, so it cannot attract the obscenity charge. The judges were told that except obscenity, no other offence was committed by the petitioners.

In its March 10 order, the bench said section 294 is meant for punishing persons indulging in an obscene act in any public place causing annoyance to others.

The judges said it must be shown that public has a right to have free ingress to such a place. "Viewed from this angle, the flat/apartment in a building owned by some private person meant for private use of such owner cannot be said to be a public place," they added.

The judges said the FIR, even prima facie, does not disclose any offence. They concluded that obscene act alleged in the FIR was not being conducted at a public place and that too to the annoyance of others.

Uttering abusive words

Oct 15, 2022: The Times of India

Mere uttering of abusive words doesn’t amount to obscenity: Supreme Court

NEW DELHI: Mere utterance of abusive, humiliating or defamatory words by itself do not amount to an offence of obscene act under Section 294(b) IPC and it has to be proved that it was done to cause annoyance to others, the SC held while quashing criminal proceedings against some people under the provision for using unparliamentary language in a public place.

A bench of Justices S Abdul Nazeer and J B Pardiwala said, “To prove the offence. . . there must be further proof to establish that it was to the annoyance of others, which is lacking in the case. No one has spoken about the obscene words, that they felt annoyed and in the absence of legal evidence to show that the words uttered by the appellants accused annoyed others, it cannot be said that the ingredients of the offence under Section 294 (b) of IPC is made out. ”

The bench examined the complaint filed by a lady and said that the test of obscenity under Section 294(b) of the IPC is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.

It also said courts should adopt a judicious approach while taking cognisance as a person against whom no offence is disclosed cannot be put to any harassment by the issue of process. “Issuance of process must be preceded by an application of judicial mind to the material before the court to determine if there is ground for proceedings. ”

Political support for freedom of speech

BJP supports Salman Rushdie/ The Satanic Verses

1988

Swapan Dasgupta | COMPETITIVE HURT, - Progress and regression go hand in hand in the Rushdie affair | Friday , February 3 , 2012 |The Telegraph, India

Mr Dasgupta later became a BJP MP.

In 1988, when the BJP protested against the peremptory ban on Satanic Verses, it was part of a larger critique of secularism, or ‘pseudo- secularism’, as L.K. Advani called it. Implicit in that engagement was the contention that the political establishment was guilty of ‘double standards’ by pandering to Muslim vote banks. A greater degree of even-handedness, it was implied, could be injected into the system if organized Muslim lobbies could be neutralized by the emergence of Hindu voting clout. In other words, secularism could be restored to its pristine purity when the majority community could rise up and say, “Enough is enough.”

1999

Rushdie effigies burned in India | Friday, February 12, 1999 | BBC

Muslim activists burned effigies of Salman Rushdie to protest at the controversial British author being granted a visa by the Indian Government.

It is not known when Mr Rushdie plans to visit the land of his birth but the government, dominated by the Hindu nationalist Bharatiya Janata Party (BJP), has offered him protection.

Sunday marks the 10th anniversary of the fatwa - or edict - issued by Iran's late leader, Ayatollah Ruhollah Khomeini following the publication of Mr Rushdie's book, The Satanic Verses, which allegedly insulted the Prophet Mohammed.

Salman Rushdie has been promised protection by the Indian Government

India was the first country to ban The Satanic Verses - a ban which has yet to be lifted - but India's Home Minister Lal Krishna Advani last year described Mr Rushdie as an "outstanding writer" and said he would be welcome.

Earlier this month one of India's most senior Muslim clerics, Syed Ahmad Bukhari, described the decision to grant Mr Rushdie a visa as a ploy by Prime Minister Atal Behari Vajpayee to inflame religious passions.

Mr Bukhari said: "Here is a man who is hated and reviled by Muslims the world over for his book 'The Satanic Verses.' Why is the government giving him so much importance? Why is it letting him come?

"Hindus and Muslims are already divided over the issue. It could lead to very serious trouble. That is what Hindu fundamentalists want," he said.

The BJP has denied it has any ulterior motive and said Mr Rushdie, as a person born in India, had as much right to visit as anyone else.

Mr Rushdie picked up his visa in London last month and his lawyer, Vijay Shankardas, says he intends to visit India in the next few weeks.

His family owns a villa in the hill resort of Solan in Himachal Pradesh.

Press freedom

Rights of press not higher than common man’s

Rights of press not above common man's: Court, August 7, 2017: The Times of India

The rights of press are not higher than that of the common man, a Delhi court has said. Further, the court said it is settled law that journalists do not enjoy any special privilege and have no greater freedom to make any imputations or allegations that can ruin a citizen's reputation.

The order was in connection with a defamation suit filed against the managing editor of a magazine by a man seeking restraint on further publication and damages alleging that defamatory articles were written about him.

“The press does not enjoy any exclusive rights under our Constitution apart from those enjoyed by a citizen as a concomitant of the freedom of speech and rights against unlawful deprivation of life and liberty guaranteed under Articles 19 and 21,“ said Additional District Judge Raj Kapoor.

The complainant, a share broker and member of a housing society , had alleged that an article was published in the magazine in December 2007 to tarnish his image by using defamatory words. He claimed that when he issued a legal notice to the defendants -living in the same housing society -instead of apologising, defamed him by writing defamatory words against him to government agencies.

On the contrary , the first defendant who is the managing editor of the magazine claimed before the court that there was no defamatory article naming the man and that the magazine was not distributed among the business circle of the man.

The second defendant, the then president of the same housing society , alleged that the man was indulging in unlawful activities in the society and he had filed a civil suit for removal of unauthorised encroachment there.

The court, however, held the two defendants liable for publishing defamatory articles and harming the reputation of the man. It also directed them to pay Rs 30,000 and Rs 20,000, respectively , to the complainant as “symbolic damages“. The court also passed a permanent injunction on publishing of such articles besides restraining the second defendant to write “defamatory“ letters to government authorities.

The press enjoys no special privileges to comment, criticize or even to investigate the facts of any case, it was noted. “The rights of press are not higher than the common man. In fact the responsibilities of a journalist are higher. The common man has limited means and reach,“ said the court.

It was observed that a journalist, on the other hand, had a wider reach and power to disseminate information and such power had the potential to cause irreparable damage to a matter under inquiry in a court of law. “Or in a given case, has greater propensity to scandalise or diminute the dignity , majesty or reputation of an individual or an institution,“ said the court.

SC on licence fee, Wage Board, Sakal, Yellow Pages, newspaper price

Arun Jaitley, August 26, 2019: The Times of India

The Constitution gave a pre-eminent position to the Right to Free Speech. Whereas, the other fundamental rights could be restricted through reasonable restrictions, the Right to Free Speech could only be restricted if the restriction had nexus with any of the circumstances mentioned in Article 19 (2) of the Constitution.

India’s post-Constitution history is an evidence of the fact that many fundamental rights have seen their weakening in the past 65 years. The Right to Life and Liberty was literally extinguished during the Emergency. The Right to Trade has been adversely affected in the days of the regulated economy. The Right to Property was repealed during the Emergency.

However, the Fundamental Right of Free Speech and Expression has been consistently strengthened and never narrowed down. So a national policy of expanding and strengthening the right has continuously existed over a period of time.

In the initial years of the Constitution, the Supreme Court held that the excessive licence fee for starting a newspaper was constitutionally invalid. Subsequently, in the very first decade, it was held that the Wage Board imposing an unbearable burden on a media organisation, would offend Free Speech.

Can the business or commercial interest of a newspaper be segregated from the Right of Free Speech? Would the business of a newspaper fall within the domain of the Right to Free Trade or would it impact on the Right to Free Speech?

In the Sakal newspaper’s case, the Supreme Court was concerned with the policy imposed in 1960, wherein the government decided to regulate the selling price of a newspaper. The sale price would depend on the number of pages. The government contended that it was only restricting the Right to Trade by a reasonable restriction in consumer interest.

The Supreme Court held that, if a newspaper was compelled to raise its price on account of the thickness of the newspaper it would have two consequences, either the thickness, ie, the content would be reduced or alternatively, a newspaper would be compelled to raise its price, and, there was empirical evidence to suggest that an increase in price leads to loss in circulation. Thereby, the Right to Circulate is also a part of Free Speech.

Similarly, when the government restricted the size of a newspaper on the ground that newsprint was scarce on account of paucity of foreign exchange and excessive imports would lead to an outgo of foreign exchange, the Supreme Court held that curtailing the number of advertisements in a newspaper would impact Free Speech, since advertisements themselves supplement the cost of content.

In a landmark judgment in the newsprint customs duty case, the court was confronted with the question whether imposition of customs duty on newsprint can be challenged on the ground of it being ‘Tax of knowledge’. The court held that the business of a newspaper could never be segregated from its content.

In the Constituent Assembly, Ramnath Goenka had raised the issue that future governments would not resort to crude methods like censorship but would pinch the pockets of the newspapers. Agreeing with this view, the court held that newspapers shape the human mind, excessive tax on a newspaper itself could impact Free Speech if the purpose of the tax was not merely to raise revenue but to excessively burden the economy of the newspaper.

In the case of any trade, business or profession, taxation would be struck down only if it is confiscatory in nature, that is, if it makes the business impossible. But in the case of a media organisation, if it adversely impacts the Right to Free Speech, that is, makes it excessively costly and prohibitive, then the tax itself can be challenged as an invasion of Free Speech.

Most other democracies have not accepted the American precedent, but we in India went ahead and accepted this particular right. I think in its entire evolution, the customs duty case – in its exposition of law and expanding the right – became a landmark, in that the distinction between the business of Free Speech and the right of actual content of Free Speech itself, was obliterated.

Carrying this logic further, the Supreme Court, in the Tata Yellow Pages case, included commercial Free Speech, ie, advertising, to be a part of Free Speech. This proposition is still doubtful, since it could enable ‘paid’ news to take the benefit of commercial speech being a part of Free Speech. Paid news is a reality, and therefore if you follow the dicta of the American judgments which Tata Press has followed in India, will Free Speech also provide a right which extends to paid news? Obviously it does not sound logical, and therefore this issue has not come up before the courts. However, if there was to be a penal provision against paid news, it would have to be tested on the touchstone of whether it violates Free Speech or not.

Social media

SC:Can't ban social media over sleaze

Sources: The Times of India

1. The Times of India, Dec 05 2015, AmitAnand Choudhary

2. The Times of India

Can't ban social media over offensive content: SC to NGO

Dec 05 2015 : The Times of India (Delhi) SC: Can't ban social media over sleaze

Turning down an NGO's plea to ban social networking sites like Facebook and WhatsApp for use of their platforms to circulate offensive and vulgar material, the Supreme Court on Friday asked the government to examine if the sites could be prosecuted, reports Amit Anand Choudhary. The SC told the NGO, “You are now asking blocking of sites. You may later ask for banning mobile phones.It's not a solution and it cannot be done,“ the SC said.

The Centre earlier told the court it was tough to identify people who upload and share sex videos and also expressed its inability to keep a check on such material.

But Apex Court Asks Centre Whether Sites Can Be Prosecuted

The Supreme Court asked the Centre to examine if social networking sites like Facebook and WhatsApp can be prosecuted for use of their platforms to circulate offensive and vulgar material but turned down a plea to block the sites. A social justice bench of justices Madan B Lokur and U U Lalit asked the Centre to look into the issue after two cases were brought to its notice in which people were booked for circulating rape videos through WhatsApp in Mumbai and running a sex racket for paedophiles through a Facebook account but no action was taken against the social networking sites. The Centre had earlier told the court that it was difficult to identify people who upload ed sex videos through mobile phones and shared through WhatsApp. It said culprits could be easily caught if such activities were done through a computer but it was difficult to find the source when the crime was commit ted through phones.

With the government ex pressing its inability to keep a check on material shared through WhatsApp, a Hyderabad-based NGO, Prajwala, told the bench that action should also be taken against the networking sites and they should be blocked. Head of the NGO, Sunitha Krishnan, asked the court to direct the government to put in place a mechanism to regulate sites and keep a check on the content being circulated through WhatsApp.

The bench, however, said blocking is not a feasible solution and turned down the plea.“You are now asking for blocking of sites. You may later ask for banning mobile phones. It is not a solution and it cannot be done,“ the bench said.

“Let the government first respond to the issue and then we will consider,“ the bench said asking additional solicitor general Maninder Singh to look into why networking sites were not booked by Kerala and Maharashtra police.

Taking suo motu cognizance on Prajwala's letter written to the Chief Justice of India pointing out nine rape videos being circulated through WhatsApp, the bench had directed a CBI probe into all those cases.

Curbs on hate speech on Facebook

The Times of India, Nov 13 2015

Pankaj Doval

India tops in curbs on FB content in 2015

15,155 pleas granted: 3 fold rise from 2014

The Indian government sought the maximum number of content restrictions from various platforms of social networking behemoth Facebook in the first six months of this year than any other country globally.

The world's biggest social networking platform said it granted requests from authorities in India for some 15,155 pieces of content to be blocked on its platform, its WhatsApp and Messenger apps and its photo-sharing app, Instagram.

This was revealed by Facebook in its latest report on government data requests for the period between January and June 2015.

The Indian government's requests more than tripled rom the 4,960 items where it sought restrictions during he same period in 2014 Facebook said.

India accounted for some nearly 74% of the more than 20,000 pieces of content re stricted worldwide at the beh est of 92 countries.

Facebook said that the re quests to block the material n India were made “under lo cal laws prohibiting criti cism of a religion or the state.“ “Facebook does not provide any government with `back doors' or direct ac cess to people's data,“ the US headquartered company .

Meanwhile, Facebook said the US topped the list of nations requesting user data.It logged 17,577 requests in the first half of 2015, up from 15,433 a year earlier. India was second with 5,115, up from 4,559 last year.

India is home to the second largest user base of Facebook with over 125 million users. “We restricted access in India to content reported primarily by law enforcement agencies and the India computer emergency response team within the ministry of communications and information technology because it was anti-religious and hate speech that could cause unrest and disharmony within India,“ it added.

The hurt caused by free expression on social media

Dhananjay Mahapatra, Is social media the right platform to exercise right to freedom of expression?, November 12, 2018: The Times of India

When Australian great Greg Chappell-coached Indian cricket team embarrassingly exited from the 2007 Cricket World Cup, fortunately there was no social media to singe great cricketers including Sachin Tendulkar, Sourav Ganguly, Rahul Dravid and Virender Sehwag. But media lost no time in questioning Tendulkar’s ability by speculating on ‘Endulkar’.

Tendulkar responded to the ‘Endulkar’ jibe more than five years later in his book ‘Playing It My Way’. He said: “Headlines like ‘Endulkar’ hurt deeply. After 18 years in international cricket, it was tough to see things come to this and retirement crossed my mind.”

That is what a carelessly exercised right to free speech can do even to the greatest of players. Mercifully, Tendulkar did not retire because of the jibe from a journalist who probably had never faced pacers even in ‘gali’ cricket. In the next five years (2007 to 2012), Tendulkar scored eight centuries in ODIs, that included his career best 200 not out.

Last week, another careless remark was thrown at Virat Kohli who, if he continues the way he is at present, may emerge as one of the greatest cricketers. A twitter user dismissed Kohli as an ‘overrated batsman’ and went on to make a blind-folded remark - “I have seen nothing special in his batting. I enjoy watching English and Australian batsmen more than this Indian.”

Well, it is not expected from an irrepressible Kohli to wait, like Tendulkar, to write an autobiography years later to gentlemanly respond to this jibe. He responded with a waspish ‘leave India’ comment and disturbed a hornet’s nest on twitter. To put the records straight, Kohli fares as good as Steven Smith and Joe Root when their home and away performances are compared. But, the batsman must have learnt a lesson - in unforgiving social media, it’s a victory if your comment hurt someone somewhere. Bland and matter of fact views have no takers.

Right to free speech, guaranteed under Article 19 of the Constitution, is never meant to be a licence to vilify or cause pain and hurt to others. Right to free speech is meant to guarantee right to air a fair comment and definitely not a protection for expressing whatever that crossed one’s mind.

Gurudev Rabindranath Tagore was awarded Nobel Prize for Literature in 1913 for his immortal and best known work ‘Gitanjali’, a spiritual prose-verse epitomising his unshaken faith in God and composed when he was struck with unfathomable personal grief in the quick passing away of his father, wife, daughter and a son.

Gurudev would have surely ignored or pardoned, but how would his followers react if one tweets – “He is a much overrated author; I have seen nothing special in his writings. I enjoy reading English and Australian authors more than this Indian”. The person making this comment, if not physically assaulted, would have found fiery comments roasting his free speech.

That fate would also await anyone if s/he took a similar ‘overrated’ jibe at motormouthed social activists who regularly fill social media with their views and show intolerance towards anyone criticisng them. The trend is repeated if anyone dared to criticis the right or left wing activists. Absolute adherence to being politically correct is the theme that governs social media.

Be they from left, right or centrist alignments, users of social media, which provides a great platform for free speech, camouflage as champions of free speech but verbally lynch anyone who does not fall in line with a particular line of discourse articulated by them.

Recently, there has been a campaign on twitter questioning CJI Ranjan Gogoi and the Supreme Court for rejecting bail plea of a certain someone, accused of making disparaging comments against Konark Sun temple architecture which is considered a place of pride by Odias, and telling him that ‘jail is the safest place’ if he was apprehending threat to his life in Odisha during trial.

Those eager to secure right to free speech of the one arrested, did not utter a word in sympathy for the cold-looded murder of TV journalist Achyutananda Sahu at Dantewada by Maoists. No one raised the issue of his right to life and right to profession, the inter-connected fundamental rights which are more important than freedom of speech and expression. No one questioned the Maoists!

Right to free speech has another limitation - right to reputation and dignity of others, which is part of right to life. That is the reason right to free speech is circumscribed by civil and criminal defamation. The fear of defamation, especially the criminal course, was meant to make persons to be sure of their facts before making an allegation, comment or jibe in public against another.

More than two years ago, the SC had dismissed challenge to Section 499 and 500 of IPC from a host of personalities, including Subramanian Swamy, Arvind Kejriwal, Rahul Gandhi, Rajdeep Sardesai and actor-turnedpolitician Vijaykanth, saying there are inbuilt safeguards against misuse of criminal defamation to suppress free speech. Importantly, it had said: “Citicism is different than defamation. One is bound to tolerate criticism, dissent and discordance but not expected to tolerate defamatory attack.”

This SC judgement is yet to find acceptance among the members of the civil society, the vocal lot on social media. But the same lot is vociferous in social media for acceptance of SC’s Sabarimala judgement and portray protesters as hooligans in contempt of court. Double standards, which had been intrinsic to so-called preachers in a society, has become a daily commodity available freely on social media.

2020: SC slams police for harassing people

Dhananjay Mahapatra, October 29, 2020: The Times of India

SC slams police for harassing people over social media posts

Bengal Cops Had Summoned City-Based Woman To Kol

New Delhi:

Concerned by the growing trend of police in different states summoning individuals from far corners for social media posts allegedly defaming political dispensations, the Supreme Court on Wednesday sent out a loud message to state governments: “We cannot have citizens hauled from one corner of the country to another for a social media post criticising the government.”

The stern warning was prompted by Bengal Police issuing summons to a Delhi resident who had criticised the state government for non-enforcement of lockdown norms.

Underlining the sanctity of free speech guaranteed to citizens under Article 19(1)(a) of the Constitution and vowing to protect it at all costs, a bench of Justices D Y Chandrachud and Indira Banerjee said, “Do not cross the line. Let India remain a free country. We, as the Supreme Court, are here to protect free speech. The reason why the SC was created by the Constitution is to ensure that ordinary citizens are not harassed by the state.”

ROW OVER FB POST

Cops summoning from Delhi to Kol a harassment: SC

A 29-year-old woman, Roshni Biswas, through advocate Mahesh Jethmalani challenged the issuance of summons to her by police and the Calcutta HC asking her to appear before police for questioning on her Facebook post complaining about large congregations at Raja Bazar area of Kolkata in violation of lockdown norms. Police registered an FIR accusing her of inciting hatred against a particular community. The bench suggested that police could send her questions on email or interrogate her through video-conferencing. When West Bengal counsel R Basant said she would be questioned and not arrested, the bench said, “This is browbeating a citizen for exercising right to free speech. One can’t be prosecuted for saying the pandemic is not dealt with properly.” He said protecting her from answering summons of police would set a dangerous precedent. But Jethmalani said the intention of Kolkata police was to summon her before them and intimidate her.

The state government counsel’s insistence that she must appear before police invited more caustic comments from the court. “It is like saying how dare a citizen write something against the government, we will haul her up by summoning her from any part of the country. The part of the post attributed to her said thousands of people came out in Raja Bazar area in violation of lockdown norms,” it said.

“Summoning her from Delhi to Kolkata is sheer harassment. Tomorrow, police from Kolkata, Mumbai, Manipur and Chennai will summon people from all parts of India to send a chilling message — you want freedom of speech, we will teach you a lesson,” it said.

The bench agreed to Basant’s middle path approach that the investigating officer from Kolkata would travel to Delhi to question her. It asked her to cooperate in the probe.

State laws

Kerala/ 2015: Section 118(d) of Kerala Police Act

Dhananjay.Mahapatra@timesgroup.com New Kerala law may not pass muster as SC struck down a similar one in ’15

Section 118(d) of the Kerala Police Act which the Supreme Court had struck down in 2015 in the Shreya Singhal case, terming it to be in breach of right to free speech.

The introduction of Section 118A in the Kerala Police Act and its inclusion in the existing Section 125 of the Act makes offences under the new provision cognisable, though bailable. However, it gives the police unlimited power to arrest anyone whom it suspects would continue to make statements in all kinds of media “threatening, abusing, humiliating or defaming” any person or a class of people.

Anyone found guilty under Section 118A will be punished with imprisonment up to three years or a fine up to Rs 10,000 or both.

Milder Sec 118(d) had evoked strong criticism from SC

It provided that police could arrest any person “who causes annoyance to any person in an indecent manner by statements or verbal comments or telephone calls or calls of any type or by chasing or sending messages or mails by any means”.

The milder Section 118(d) had evoked strong critique from the SC in the Singhal case. Striking it down, it had said, “Information that may be grossly offensive or which causes annoyance or inconvenience are undefined terms which take into the net a very large amount of protected and innocent speech. A person may discuss or even advocate, by means of writing disseminated over the internet, information that may be a view or point of view pertaining to governmental, literary, scientific or other matters which may be unpalatable to certain sections of society.

“It is obvious that an expression of a view on any matter may cause annoyance, inconvenience or may be grossly offensive to some. A certain section of a particular community may be grossly offended or annoyed by communications over the internet by ‘liberal views’,” the SC had said..

Providing an additional reason for quashing Section 118(d), it had said, “We, therefore, hold that the section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature.”

Kerala/ 2020: Section 118(a) of Kerala Police Act

KP.Saikiran@timesgroup.com Pinarayi Govt Notifies Controversial Legislation Kerala law makes police judge & jury on speech

Thiruvananthapuram:

A controversial amendment to the Kerala Police Act came into force on Sunday, granting police the authority to slap criminal charges through “subjective interpretation” of communication through any medium as being defamatory even as CM Pinarayi Vijayan sought to allay fears of the new law being a threat to “free speech” or “impartial journalism”.

Amendment 118A cites even “injury to the mind” as a valid reason to slap charges that stipulate a maximum jail term of three years, a fine of up to Rs 10,000, or both.

Depending on their interpretation of what constitutes an offence under this provision, the police can act without a complaint from the alleged victim.

The amendment to the 2011 legislation has triggered widespread

“This is grossly unconstitutional and against several verdicts of the Supreme Court. In the director of public prosecutions versus Collins case in the UK, the Queen’s bench and House of Lords differed over the definition of the phrase ‘grossly offensive’. When even the eminent jurists took diametrically opposite positions in such matters, the new insertion in the Kerala Police Act has left it to the wisdom of a police officer or anyone to gauge whether a communication or publication has caused injury to the mind of a person,” former law secretary B G Hareendranath said.

The amendment follows alleged attempts by the state government to wrest control of the political narrative, especially on social media, amid investigations by central agencies into the Life Mission welfare housing and gold smuggling scam cases. The CPM has boycotted news channels and refused to participate in debates that include panellists critical of the government. Many see the move as an attempt to control free speech ahead of municipal and assembly elections.

Even in the absence of such a law, the LDF government had been slapping cases on those criticising chief minister Vijayan. The police had registered cases against 119 individuals, including 12 government employees, till June 2019 for allegedly abusing the CM on social media. They were booked for offences ranging from criminal intimidation to use of obscene language.

The very Kerala high court judgment cited by the government while framing the amendment was, ironically, one that criticised the police for not acting promptly on cyber crime complaints filed by women. “It is the duty of the state to maintain public order. Moreover, as per the existing penal law itself, such culprits can be booked, for which the state police should be vigilant,” the high court had observed in the Sreeja Prasad vs state of Kerala case this year. Besides the content of the ordinance that governor Arif Mohammed Khan gave his assent to on Saturday, the government is being criticised for hurriedly drafting an amendment on a sensitive subject without a proper debate in the assembly or in the public sphere.

Section 118A does not make any specific reference to rising crimes against women or children, a ruse given by the LDF government for bringing the new law through an ordinance. It also does not talk of inadequacy in existing provisions under IPC or Information and Technology Act to deal with such crimes.

The overarching ambit of Section 118A, when it says “whoever makes, expresses, publishes or disseminates through any kind of mode of communication” will bring under its purview speeches made on the roadside or public platforms, a telephone call or a social media post, an article in a newspaper or a web portal, and programmes on TV channels.

Compared to Section 118A, its earlier avatar, Section 118(d), appeared milder.

See also

Censorship of the arts and media: India

Censorship of cinema: India

Censorship and the law:India

Contempt of court: India

Information Technology Act: India

Freedom to criticize, deny religions: India

Freedom of the press/ media, safety of journalists: India

Sedition, offences against the state: India

Hate speech: India