Freedom of Speech – Defamation, Sedition, etc.
The top court as custodian of liberties
From UPSC perspective, the following things are important :
Prelims level: Judiciary; Preventive detention; Civil liberties; Article 21;
Mains level: Judiciary; Guarantee of Civil Liberties;
Why in the News?
- Delhi Deputy Chief Minister Manish Sisodia was arrested in early 2023 by the CBI and ED in the Delhi liquor policy case. After nearly a year and a half in prison, the Supreme Court of India granted him bail, underscoring that bail should not be used as a form of punishment.
Previous judgments on the ‘Right to Speedy Trial’:
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What are the present limitations?
- Prolonged Incarceration: The ruling pointed out that the legal system often leads to excessive delays, which can result in individuals being punished without trial.
- Dependence on Prosecutorial Statements: A concern was raised about the reliance on the prosecution’s assurances regarding the timeline for trial completion.
‘Guarantee of Civil Liberties’:
- Constitutional Foundation: The Supreme Court emphasized that individual liberties should not be contingent on the discretion of the prosecution.
- In judgments like Maneka Gandhi v. Union of India (1978), the Court expanded the understanding of due process, emphasising that any deprivation of liberty must follow fair, just, and reasonable procedures.
- Judicial Responsibility: The judgment aims to prevent the misuse of stringent laws like the Prevention of Money Laundering Act (PMLA) and to uphold the dignity and rights of individuals.
- In Rana Ayyub v. Directorate of Enforcement (2023), the Supreme Court emphasized judicial oversight in PMLA enforcement while ensuring trials follow underlying offenses.
- Public’s trust on Judiciary: Presently, the Apex Court pointed out the flawed tendency of some judges to deny bail unnecessarily, ignoring the principle of timely trials. This may lead to loss of public trust in the judiciary.
- Call for Systemic Change: The ruling urges a reevaluation of the political and legal systems to prioritize justice and individual rights over personal vendettas.
- State of Maharashtra v. Rani Kusum (2005) underscores the necessity for reforms to address delays in the judicial process.
- Bail is the Rule, Not the Exception: The Supreme Court’s decision in granting bail to Manish Sisodia reinforces the principle that bail is the rule, not the exception.
Way forward:
- Adherence to procedural deadlines: In this situation, courts should enforce stricter adherence to procedural deadlines and prioritize cases involving prolonged incarceration to safeguard the right to a speedy trial.
- Independent oversight committees: Need to establish independent oversight committees to regularly review cases of prolonged incarceration without trial, ensuring accountability and reducing reliance on prosecutorial assurances alone.
Mains PYQ:
Q What was held in the Coelho case? In this context, can you say that judicial review is of key importance amongst the basic features of the Constitution? (UPSC IAS/2016)
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Freedom of Speech – Defamation, Sedition, etc.
India press freedom score falls, says Reporters sans Frontieres
From UPSC perspective, the following things are important :
Prelims level: Freedom of Expression; Freedom of Press; World Press Freedom Index
Mains level: Issues with Freedom of Expression in India;
Why in the news?
India’s score in the World Press Freedom Index fell over the last year, from 36.62 to 31.28, according to Reporters Without Borders. In South Asia, India finds itself ranked at 159th, while its neighbor Pakistan stands marginally higher at 152.
Key Highlights of the Report:
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India’s Initiative of “Index Monitoring Cell”:
- Purpose of the Cell: The Index Monitoring Cell has been set up to work on improving India’s press freedom ranking. It will consist of representatives from various government agencies and credible journalists suggested by the Press Council of India.
- Ranking Parameters: The cell will engage with agencies publishing the World Press Freedom Index, like Reporters Without Borders, for a better understanding of the parameters and methodology used for the rankings. This will help formulate an action plan to address the issues identified.
- Coordination with State Governments: The cell will coordinate with state governments to appoint nodal officers who can provide regular updates on the state of press freedom and any issues faced by journalists at the local level.
- Engagement with Stakeholders: This aims to improve communication and visibility of steps taken to support press freedom and address concerns raised by global media watchdogs.
- Reporting Mechanisms: Setting up proper reporting mechanisms is crucial to ensure that the data and information provided to ranking agencies are up-to-date and accurate. This will help in portraying a clearer picture of the press freedom landscape in India.
Conclusion: India needs to enact and strengthen laws to protect the freedom of the Press and ensure journalists’ safety. This includes legislation to prevent harassment, attacks, and threats against journalists, as well as provisions for swift and effective legal recourse in cases of censorship or intimidation.
Mains PYQ
Q What do understand by the concept “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss. (UPSC IAS/2014)
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Freedom of Speech – Defamation, Sedition, etc.
Hate Speech: Interpreting Section 153A IPC
From UPSC perspective, the following things are important :
Prelims level: Section 153A , IPC, Freedom of Speech and Reasonable Restrictions
Mains level: NA
What is the news?
- The Supreme Court reiterated that to constitute an offence under Section 153A of the Indian Penal Code (IPC), the essential ingredient is to create a sense of enmity and disharmony amongst two or more groups or communities.
- Quite often, politicians are arrested under section 153 A of IPC for alleged hate speech.
Section 153A of the Indian Penal Code (IPC)
- Section 153A of the IPC deals with the offence of promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.
- The primary is to prevent the promotion of disharmony or feelings of enmity, hatred, or ill-will between different groups in society.
- It was enacted in 1898 and was not in the original penal code.
Prohibited Acts:
The section prohibits several acts:
- Engaging in activities that promote or attempt to promote feelings of enmity or hatred between different religious, racial, linguistic, or regional groups.
- Committing acts prejudicial to the maintenance of harmony between different groups or communities.
- Doing anything that disturbs or disrupts public tranquillity or creates unrest among various groups.
Essential Elements:
To constitute an offence under Section 153A, the following essential elements must be established:
- Promotion of enmity or hatred between different groups.
- Such promotion must be based on religion, race, place of birth, residence, language, etc.
- The intention behind the act must be to disrupt public tranquillity or to create disharmony among groups.
Punishment:
- Jail Term: Any individual found guilty of committing an offence under Section 153A may be punished with imprisonment for a term which may extend to 3 years, or with a fine, or with both.
- Cognizable and Non-Bailable: The offence is a cognizable offence and the punishment for the same may extend to three years, or with fine, or with both. Further, the offence is non-bailable in nature, wherein the accused is tried by the magistrate of the first class.
- Burden of Proof: It lies with the prosecution to demonstrate that the accused’s words, actions, or conduct were aimed at promoting enmity or hatred between different groups based on the specified grounds.
PYQ:
2014: What do understand by the concept “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss.
2022: With reference to India, consider the following statements:
- When a prisoner makes out a sufficient case, parole cannot be denied to such prisoner because it becomes a matter of his/her right.
- State Governments have their own Prisoners Release on Parole Rules.
Which of the statements given above is/are correct?
- 1 only
- 2 only
- Both 1 and 2
- Neither 1 nor 2
Practice MCQ:
Q.The Section 153A of the Indian Penal Code (IPC) essentially deals with:
- Fake News
- Hate Speech
- Protest without permission
- Encroachment
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Freedom of Speech – Defamation, Sedition, etc.
PIB’s Fact Check Unit: Combating Misinformation in India
From UPSC perspective, the following things are important :
Prelims level: Fact Check Unit (FCU) and its Functions
Mains level: Not Much
Why in the news-
- Weeks ahead of the election, the Ministry of Electronics and Information Technology on Wednesday notified the Press Information Bureau’s Fact Check Unit (FCU) as the designated body to flag misinformation about Central government departments to social media platforms.
Why PIB?
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What is Fact Check Unit (FCU)?
- The Fact Check Unit’s mandate arises from the IT Rules, 2021, which stipulate that social media platforms risk losing legal liability protections if they fail to address notified misinformation promptly.
- The unit verifies claims about government policies, regulations, announcements and measures.
- Through an established rigorous fact-checking procedure, the PIB Fact Check Unit helps in dispelling myths, rumours and false claims, and provides accurate and reliable information to the public.
Operational Framework
- The FCU, led by senior DG/ADG level officer of the Indian Information Service (IIS), operates under the supervision of the Principal Director General of PIB.
- Its mandate includes verifying claims related to government policies, regulations, and announcements through a rigorous fact-checking process.
- The Unit reports to the Principal Director General, PIB who functions as the Principal Spokesperson of the Government of India.
Fact-Check Mechanism
- Query Handling: Users submit requests via WhatsApp, email, or a web portal, which are processed as ‘Queries’ by the Unit.
- Verification Process: Actionable Queries relevant to the Government of India undergo thorough verification using official sources and technological tools.
- Publication of Fact Checks: Verified information is categorized as Fake, Misleading, or True, and published on the Unit’s social media platforms for public awareness.
Categories of Fact-Checked Content
- Fake: Factually incorrect information intentionally or unintentionally disseminated to deceive or manipulate the audience.
- Misleading: Information presented with partial truths, selective facts, or distortion to mislead recipients.
- True: Information verified to be factually accurate after rigorous investigation.
PYQ:
2017: Democracy’s superior virtue lies in the fact that it calls into activity-
- The intelligence and character of ordinary men and women.
- The methods for strengthening executive leadership.
- A superior individual with dynamism and vision.
- A band of dedicated party workers.
Practice MCQ:
The centre has recently established the Fact Check Unit (FCU) as a designated body to flag misinformation in India. In this regard, consider the following statements:
- Establishment of FCU is mandated under the Right to Information (RTI) Act, 2005.
- The FCU is led by an officer of the Indian Audit and Accounts Service (IAAS).
Which of the given statements is/are correct?
- Only 1
- Only 2
- Both 1 and 2
- Neither 1 nor 2
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Freedom of Speech – Defamation, Sedition, etc.
India ‘one of the Worst Autocratisers’: V-Dem Democracy Report
From UPSC perspective, the following things are important :
Prelims level: Liberal Democratic Index (LDI)
Mains level: Propaganda reports against India
In the news
- India, previously categorized as an “electoral autocracy” in 2018, has further declined to become one of the “worst autocratizers,” according to the ‘Democracy Report 2024’ by the Gothenburg-based V-Dem (or Varieties of Democracy) Institute.
Key highlights on India
- Deteriorating Status: India, previously downgraded to an electoral autocracy in 2018, has further declined to become “one of the worst autocratizers.”
- Historical Comparison: India’s level of “liberal democracy” has regressed significantly, reaching levels last seen in 1975 during the state of emergency declared by Indira Gandhi.
- Regime Classification: India falls into the category of electoral autocracy, characterized by multiparty elections alongside insufficient levels of freedom of expression and fair elections.
- Erosion of Democratic Freedoms: The report highlights the gradual deterioration of freedom of expression, media independence, and attacks on civil society under the current government.
About the V-Dem Democracy Report
- Publication: The V-Dem Institute releases the Democracy Report annually, offering insights into the state of democracy worldwide, focusing on democratization and autocratization.
- Regime Classification: Countries are categorized into four regime types based on their scores in the Liberal Democratic Index (LDI), encompassing a spectrum from liberal democracy to closed autocracy.
What is Liberal Democratic Index (LDI)?
- Comprehensive Assessment: The LDI evaluates both liberal (individual and minority rights) and electoral aspects (free and fair elections) of democracy.
- Indicators: It comprises 71 indicators, encompassing the Liberal Component Index (LCI) and the Electoral Democracy Index (EDI), capturing various dimensions of democratic governance.
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- LCI: Measures aspects like protection of individual liberties and legislative constraints on the executive.
- EDI: Considers indicators ensuring free and fair elections such as freedom of expression and association.
- Components of the LDI include:
- Egalitarian Component Index: Assesses the extent of equality among different social groups within a democracy.
- Participatory Component Index: Evaluates the health of citizen groups and civil society organizations, indicating the degree of citizen engagement.
- Deliberative Component Index: Gauges whether political decisions are driven by public reasoning focused on the common good or influenced by emotional appeals, solidarity attachments, or coercion.
- Publication Schedule: The Democracy Report is typically published annually in March, presenting a comprehensive analysis of global democratic trends.
Key Findings from the Democracy Report 2024:
- Collaborative Effort: The report is a collaborative endeavour involving 4,200 scholars from 180 countries, leveraging 31 million datasets spanning from 1789 to 2023 to assess the democratic status of 202 countries.
- Global Trends:
- Autocratization: In 2023, 42 countries, representing 35% of the world’s population, were undergoing autocratization.
- Population in Autocracies: Currently, 71% of the world’s population, amounting to 5.7 billion people, resides in autocracies, marking a significant increase from 48% a decade ago.
- Decline in Democracy: The level of democracy experienced by the average individual globally has regressed to 1985 levels, with Eastern Europe, South, and Central Asia experiencing the sharpest declines.
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Freedom of Speech – Defamation, Sedition, etc.
Defamation in the Digital Age: The Case of Arvind Kejriwal
From UPSC perspective, the following things are important :
Prelims level: Criminal Defamation, Free Speech
Mains level: Defamation in the Digital Realm, Tweets, Videos
In the news
- In a recent legal development, the Supreme Court of India intervened in a defamation case involving Delhi Chief Minister Arvind Kejriwal.
- This case highlights the intricate intersection of online communication, legal frameworks, and freedom of expression in the digital era.
Try this question from CS Mains 2014:What do understand by the concept of “freedom of speech and expression”? Does it cover hate speech also? Why do films in India stand on a slightly different plane from other forms of expression? Discuss. |
What is the Right to Free Speech?
- Freedom: Article 19(1) (a) guarantees the freedom of speech and expression to all citizens. It is the first condition of liberty and plays an important role in forming public opinion.
- Restrictions: As per Article 19(2), restrictions can be imposed upon the freedom of speech and expression in the interests of:
- Sovereignty and integrity of India,
- Security of the state,
- Friendly relations with foreign states,
- Public order, decency or morality, or
- In relation to contempt of court,
- Defamation, or
- Incitement to an offense
- Online Discourse: The proliferation of social media platforms necessitates a nuanced understanding of free speech rights in the digital realm, balancing individual liberties with societal interests.
- Immunity for Politicians: For politicians, while they enjoy the right to free speech, they are also subject to certain limitations. Criticism of the government or its policies is generally allowed as long as it does not incite violence or hatred.
Legal Conundrum over Digital Defamation
- Background: Kejriwal faced defamation charges for retweeting a video by a YouTuber Dhruv Rathee, alleging defamatory statements against the BJP’s IT cell.
- Legal Proceedings: The Delhi High Court upheld the summons issued to Kejriwal, citing the widespread impact of retweets by public figures.
- Constitutional Considerations: The right to free speech, protected under Article 19(1)(a) of the Indian Constitution, is subject to reasonable restrictions, including defamation laws under Article 19(2).
- Retweeting vs. Endorsement: The court’s intervention underscores the distinction between retweeting and endorsing content. While retweeting may not always signify endorsement, public figures are held to a higher standard of responsibility for their online actions.
- Defamation Laws: Indian law, as delineated in Section 499 of the Indian Penal Code, criminalizes statements intended to harm an individual’s reputation. However, applying these laws to online communication poses unique challenges.
Legal Precedents and Interpretations
- Shreya Singhal vs. Union of India (2015): Section 66A of The IT Act, 2000, had criminalised sending “offensive messages” utilizing “a computer resource or a communication device”. This provision was quashed by the SC given the ambiguity in the definition of the term “offensive”.
- Subramanian Swamy vs. Union of India (2016): The Supreme Court affirmed the constitutionality of criminal defamation laws, balancing the right to reputation with freedom of expression.
- Kaushal Kishore vs. Union of India (2017): The Court clarified that additional restrictions on free speech must align with Article 19(2) and cannot be arbitrarily imposed.
Implications for Online Discourse
- Scope of Defamation: Online retweets amplify the dissemination of allegedly defamatory content, raising questions about liability and accountability.
- Responsibility of Public Figures: Public figures like Kejriwal face heightened scrutiny for their online activities, given their influence and reach on social media platforms.
Conclusion
- This defamation case underscores the evolving dynamics of communication in the digital age.
- As online discourse continues to shape public opinion, striking a balance between freedom of expression and legal safeguards against defamation remains a pressing challenge.
- The Supreme Court’s intervention provides an opportunity to reassess existing laws and norms governing online speech, ensuring that rights and responsibilities are harmonized in the digital realm.
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Freedom of Speech – Defamation, Sedition, etc.
British-era Act invoked to Block Internet in Punjab
From UPSC perspective, the following things are important :
Prelims level: Various laws, judgments mentioned
Mains level: Internet Shut-downs
Introduction
- The Union government invoked its authority under a colonial-era Temporary Suspension of Telecom Services Rules, 2017 to suspend mobile Internet in select districts of Punjab during Farm Protests 2.0.
Mechanisms allowing Internet Shut-downs
Authorities | Purpose | |
Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017 | Home Departments in the states, state government review committee, central government (under this law, but rarely used) | Enforces shutdowns for public emergency or safety reasons. |
Section 144 of the CrPC | Local law enforcement authorities | Enables shutdowns, particularly before 2017, to maintain public order and safety. |
The Indian Telegraph Act, 1885, Section 5(2) | Home Secretary of the Union or state governments | Allows blocking of messaging during a public emergency, safeguarding public safety, or protecting sovereignty and integrity. |
Constitutional Provisions for Right to Internet
Constitutional Provision | Explanation | |
Anuradha Bhasin vs. Union of India and Ors. (2020) | Right to Freedom of Speech and Expression under Article 19(1)(a) | Grants the right to freedom of speech and expression, which encompasses access to information and the Internet. |
Faheema Shirin RK vs. State of Kerala and others (2019) | Right to Education under Article 21A | Guarantees the right to education for children aged 6 to 14;
Internet access is crucial for modern education. |
K.S. Puttaswamy (Privacy) vs. Union of India (2017) | Right to Privacy under Article 21 | Protects the fundamental right to privacy, and Internet access is often used for secure communication. |
Anuradha Bhasin vs. Union of India and Ors. | Freedom to Practice Any Profession or Carry on Any Trade, Business, or Occupation under Article 19(1)(g) | Ensures the freedom to conduct various trades, businesses, and professions, often requiring Internet access. |
Landmark Precedence: Anuradha Bhasin Judgment (2020)
- Supreme Court’s Ruling: In January 2020, the Supreme Court of India recognized access to the Internet as a fundamental right under the Indian Constitution.
- Restrictions Guidelines: The Court mandated that any government-imposed Internet restrictions must be temporary, limited, lawful, necessary, and proportionate. It also emphasized judicial review.
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Freedom of Speech – Defamation, Sedition, etc.
22nd Law Commission recommends retaining Criminal Defamation
From UPSC perspective, the following things are important :
Prelims level: Criminal Defamation, Law Commission
Mains level: Read the attached story
Introduction
- The 22nd Law Commission has recommended retaining criminal defamation as an offence in the new legal framework of Bharatiya Nyaya Sanhita.
- The Law Commission’s report highlights the importance of protecting an individual’s reputation, grounded in Article 21 of the Constitution, which safeguards the right to life and personal liberty.
Key Recommendations: Upholding Reputation
- Invisible Asset: Reputation, a valuable asset, cannot be seen but is diligently built over a lifetime and can be tarnished in an instant.
- Essence of Protection: The jurisprudence around criminal defamation laws is rooted in the essence of safeguarding one’s reputation.
- Balancing Act: While acknowledging that criminal defamation might seem contradictory to freedom of speech and expression, the Law Commission suggests treading carefully.
- Harmful Speech: The Commission advises that speech should only be deemed illegal when it intends substantial harm, and when such harm becomes a reality.
What is Criminal Defamation?
- Defamation: Defamation entails the act of publishing damaging content that diminishes an individual’s or entity’s reputation, from the viewpoint of an ordinary person. In India, defamation is both a civil and criminal offense.
- Sections 499 and 500: These sections in the Indian Penal Code address criminal defamation. Section 499 defines the offense, while Section 500 outlines the associated punishment.
Arguments in Favor of Retaining Criminal Defamation
- Protection of Reputation: An individual’s reputation, an integral part of Article 21, is as vital as free speech.
- Balancing Act: The right to free speech (Article 19(1)(a)) must be balanced against the right to reputation (Article 21).
- Inadequate Compensation: Monetary compensation in civil defamation may not proportionately compensate for reputation harm.
- Editorial Responsibility: Editors bear the responsibility for published content, with significant consequences for individuals and the nation.
- Counteracting Online Defamation: In the absence of an effective internet censorship mechanism, criminalizing defamation is a necessary safeguard.
- State’s Interest: Criminalizing defamation is part of the state’s compelling interest to protect citizens’ dignity and reputation.
Arguments against Retaining
- Chilling Effect: Criminal defamation may have a chilling effect on free speech, with a lower threshold for prosecution than civil damages.
- Media Freedom: Freedom of speech and media expression is crucial for vibrant democracies, and the threat of prosecution can stifle truth.
- Misinterpretation of Dissent: Dissent may be misconstrued as unpalatable criticism, leading to imprisonment under Sections 499 and 500 of IPC.
- Collective Reputation: The right to reputation cannot extend to collectives like the government, which can rectify reputational damage.
- Redundancy: Since civil defamation remedies exist, retaining criminal defamation may serve little purpose except coercion and harassment.
- Global Trend: Many nations, including neighbouring Sri Lanka and the UK, have decriminalized defamation.
- International Perspective: The International Covenant on Civil and Political Rights urges states to abolish criminal defamation as it intimidates citizens and deters exposing wrongdoing.
Conclusion
- Criminal defamation cases have been used to suppress investigative journalism, hindering democratic accountability.
- Criminal defamation should not be misused by the state, especially as the Code of Criminal Procedure gives public servants an advantage.
- Interim measures can ensure fair proceedings and prevent excessive penalties.
Back2Basics: Law Commission of India
Details | |
Establishment | An executive body established by the Government of India, with the first commission established in 1955. |
Tenure | Each Law Commission serves a term of three years. |
Function | Acts as an advisory body to the Ministry of Law and Justice for legal reforms in India. |
Recommendations | The recommendations made by the Law Commission are not binding. |
Historical Background | The first Law Commission was established during the British Raj in 1834 by the Charter Act of 1833. |
First Chairman | The first Chairman of the Law Commission was Macaulay, who recommended the codification of laws. |
Composition | Typically consists of a full-time Chairperson, full-time Members, ex-officio Members, and part-time Members. |
Terms of Reference | Undertakes research and reviews of existing laws, recommends reforms, and studies justice delivery systems. |
Major Reforms | The Law Commission played a pivotal role in suggesting key enactments like the Indian Penal Code and Criminal Procedure Code. |
Role in Legal Reforms | Serves as both an advisory and critical body, with its recommendations often influencing legal reforms in India. |
Supreme Court References | The Supreme Court has referred to the work of the Law Commission and followed its recommendations in various cases. |
Promotion of Accountability | Aims to promote an accountable and citizen-friendly government, transparency, and the right to information. |
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Freedom of Speech – Defamation, Sedition, etc.
Split Verdict in Kunal Kamra’s Petition: Implications of IT Rules Amendment
From UPSC perspective, the following things are important :
Prelims level: Fact-Checking Unit (FCU)
Mains level: Amended IT Rules
Introduction
- A two-judge Bench of the Bombay High Court recently delivered a split verdict on a comedian’s petition challenging the IT (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023.
- These rules grant the government the authority to establish a fact-checking unit (FCU) to identify fake, false, and misleading information about the government on social media platforms.
- The case will now be referred to a third judge by the Chief Justice of the Bombay High Court due to the disagreement between the two justices.
Provisions of IT Rules (2023)
- Fact-Checking Unit (FCU): Amended IT rules empower the government to establish an FCU to identify and remove fake, false, or misleading information related to the Central government’s business on social media platforms.
- Consequences for Non-compliance: Failure to comply with FCU directives may result in intermediaries losing their safe harbour protection under Section 79 of the IT Act, 2000.
Court’s Concerns and Observations
- Unfettered Power: The Court expressed concerns about the government’s unfettered power in the absence of clear guidelines and guardrails, emphasizing the need for necessary safeguards.
- Ambiguity in Terms: The Court noted ambiguity in terms like “fake, false, and misleading” which are subjective and open to interpretation, posing challenges in distinguishing between them.
- Selective Application: The Court questioned why the IT Rules exclusively targeted digital media, leaving print media unaffected, especially when the same content appears in both forms.
- FCU’s Role: Concerns were raised about the FCU’s role and the absence of recourse for users whose content is removed after being flagged by the FCU. The Court expressed worries about the user’s lack of remedy in such cases.
- Overreach: The Court raised concerns about the potential overreach of the Rules, emphasizing that even well-intentioned regulations must have limits to avoid excessive use of power.
- Lack of Opportunity for Defense: The Court found it remarkable that there was no provision in the Rules allowing an intermediary to defend or justify flagged content, violating principles of natural justice.
Legal Arguments
- Petitioners’ Stand: The petitioners argued that the amendment violated freedom of speech and expression under Article 19(1)(a) and did not satisfy reasonable restrictions under Article 19(2). They contended that the government’s power to decide the truth of content was excessive.
- Government’s Stand: The government defended the FCU, stating that it would only notify intermediaries about flagged content, and the intermediaries could choose to remove it or add a disclaimer. Users aggrieved by intermediary decisions could seek legal remedies in court.
Conclusion
- The split verdict highlights the complexity and significance of the IT Rules (2023) and their potential impact on freedom of speech and expression.
- The Court’s concerns about ambiguous terms, selective application, and lack of safeguards underscore the need for a balanced approach to regulate online content while protecting fundamental rights.
- The case’s referral to a third judge will determine its outcome and implications for digital media regulation in India.
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Freedom of Speech – Defamation, Sedition, etc.
Press and Registration of Periodicals Bill, 2023: Key Features and Changes
From UPSC perspective, the following things are important :
Prelims level: Press and Registration of Periodicals Bill, 2023
Mains level: Not Much
Central Idea
- The Press and Registration of Periodicals Bill, 2023, faced opposition uproar but was passed in the Rajya Sabha on August 3. Subsequently, it was approved in the Lok Sabha on December 21, marking its legislative passage.
Press and Registration of Periodicals Bill: Purpose and Objectives
- Repealing the 1867 Act: The Bill aims to repeal the Press and Registration of Books Act, 1867, modernizing the regulatory framework for periodicals.
- Key Provisions: It includes a notable clause preventing individuals convicted of terrorism or acting against state security from publishing periodicals.
- Rationale for Introduction: The Bill focuses on easing business processes for publishers, removing procedural hurdles, and reducing the administrative burden of declarations and filings.
Comparison with the 1867 Act
- Exclusion of Books: Unlike the 1867 Act, the 2023 Bill excludes books from its purview, as they fall under the HRD Ministry’s jurisdiction.
- Penalty Structure: The new Bill replaces imprisonment with fines for certain violations and introduces an appellate mechanism led by the Press Council of India Chairman.
- Shift in Administrative Power: Power is transferred from the District Magistrate to the newly established Press Registrar General, centralizing the registration and regulation process.
Declaration and Registration Process
- Simplification of Procedures: The Bill simplifies the declaration process, eliminating the need for DM involvement and allowing online intimations for printing presses.
- Simultaneous Processing: It enables concurrent processing of title allotment and registration applications, streamlining the procedure.
- Time-Bound Responses: The specified authority must provide feedback within 60 days, expediting the registration process.
UAPA Provision in the Bill
- Restriction on Convicted Individuals: The Bill bars individuals convicted of terrorist acts or unlawful activities, as defined under the Unlawful Activities (Prevention) Act, 1967, from publishing periodicals.
- Security Concerns: This provision addresses concerns about the misuse of periodicals for activities threatening national security or sovereignty.
Conclusion
- Modernizing Media Regulation: The Press and Registration of Periodicals Bill, 2023, represents a significant overhaul of India’s media regulatory framework, aligning it with contemporary needs.
- Balancing Ease of Business and Security: While the Bill aims to facilitate easier operations for publishers, it also incorporates measures to safeguard against security threats.
- Potential for Debate and Discussion: The Bill’s passage, amidst opposition concerns, suggests ongoing debates about media freedom, security, and regulatory oversight in India’s evolving democratic landscape.
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Freedom of Speech – Defamation, Sedition, etc.
Global Internet Freedom Decline in 2023
From UPSC perspective, the following things are important :
Prelims level: 'Freedom on the Net 2023' Report
Mains level: Read the attached story
Central Idea
- Freedom House’s latest report highlights the 13th consecutive year of declining global Internet freedom.
- This decline has seen deteriorations in the human rights online situation in 29 countries, with only 20 countries registering improvements.
Report: ‘Freedom on the Net 2023: The Repressive Power of Artificial Intelligence’
- Key Concerns: The report underscores the escalating use of artificial intelligence (AI) by governments worldwide, emphasizing its role in censorship and the dissemination of disinformation.
- Scope: Covering events from June 2022 to May 2023, the 13th edition evaluates Internet freedom in 70 countries, collectively accounting for 88% of global Internet users.
Regional Findings
- Iran’s Sharp Rise in Digital Repression: Iran witnessed the sharpest escalation in digital repression. Authorities resorted to Internet shutdowns, blocked WhatsApp and Instagram, and intensified surveillance to quell anti-government protests.
- China’s Perennial Status: For the ninth consecutive year, China retained its position as the world’s worst environment for Internet freedom, followed by Myanmar, the second most repressive nation concerning online freedoms.
Legal Repercussions and Arrests
- Global Crackdown on Expression: The report highlights that individuals faced legal consequences for online expression in a record 55 countries this year.
- Widespread Arrests: The number of countries conducting widespread arrests and imposing multi-year prison terms for online activities has surged, growing from 18 in 2014 to 31 in 2023.
- Elections as Triggers: Elections emerged as triggers for digital repression. Ahead of elections, incumbent leaders in various countries criminalized speech, restricted access to independent news sites, and imposed information controls to influence the electoral outcome in their favor.
AI-Enabled Repression in India
- Censorship in Legal Framework: The report spotlights India’s inclusion of censorship, including AI-based systems, within its legal framework. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules mandate large social media platforms to employ AI-based moderation tools for diverse types of content.
- Example – BBC Documentary: The report cites the Indian government’s directive to YouTube and Twitter to restrict access to a BBC documentary on communal violence. The IT Rules compel these platforms to use automated scanning tools to remove related content.
Censorship Methods in India
- 5 Censorship Methods: The report evaluates countries on five censorship methods:
- Internet connectivity restrictions,
- Blocks on social media platforms,
- Blocks on websites,
- Blocks on VPNs, and
- Forced content removal.
- Further Censorship Actions: India has also been involved in blocking websites featuring political, social, or religious content, disrupting ICT networks, deploying pro-government commentators to manipulate online discussions, and conducting technical attacks against government critics and human rights organizations.
- Digital Freedom Index: On a scale of 1 to 100, where ‘100’ represents the highest digital freedom and ‘1’ signifies the worst repression, India received a score of 50. In contrast, Iceland emerged as the leader with a score of 94, boasting the best climate for Internet freedom.
Implications for India
- Uneven Playing Field: As India prepares for general elections in 2024, the government’s expanding censorship regime is highlighted as a threat to Indian democracy.
- Curb on free speech: It suppresses criticism and independent reporting on the ruling party.
Conclusion
- The report’s findings underscore the global decline in Internet freedom, driven partly by the increasing use of AI for censorship and disinformation campaigns.
- The implications of this trend on freedom of expression, privacy, and democracy necessitate vigilant monitoring and international action to protect digital rights in an increasingly interconnected world.
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Freedom of Speech – Defamation, Sedition, etc.
Press Freedom and Free Speech in Southeast Asia
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Press Freedom Rankings in SE Asia
Central Idea
- Southeast Asian nations consistently rank among the worst globally for press freedom and media rights.
- Autocratic governments in the region have increasingly resorted to closing independent newspapers and imprisoning activists who criticize the authorities.
Press Freedom Rankings
- Pew Research Findings: According to the Pew Research Center’s report on religion and politics in South and Southeast Asia, the embrace of free speech and democracy is not widespread in the region.
- Global Press Freedom Rankings: Organizations like “Reporters without Borders” annually rank nations in terms of press freedom. In the latest World Press Freedom Index, Vietnam and Myanmar were among the worst-ranked countries, with Malaysia being the exception.
- Deteriorating Standards: Declining press freedom worldwide is attributed to increasing aggressiveness by authorities, growing animosity towards journalists on social media, and the proliferation of fake content.
Freedom on the Net Rankings
- Online Free Speech Monitoring: Freedom House’s Freedom On The Net index evaluates online free-speech conditions. Myanmar, China, Vietnam, and Thailand ranked poorly, highlighting online restrictions and censorship.
Public Perspectives on Free Speech
- Notion of National Harmony: Governments in Southeast Asia, which encompass a diverse range of political systems, generally concur on the need to limit free speech to safeguard national “harmony.”
- Pew Research Focus: Unlike traditional press freedom rankings, the Pew study delves into the views of ordinary people on free speech issues.
- Key Findings: The report revealed that the majority of respondents in three out of four Southeast Asian states prioritize national “harmony” over free speech. However, a notable minority in Malaysia and Singapore held a contrasting view.
Various impacts on Free speech
- Age and Education Impact: Younger and more educated respondents were more likely to advocate for the right to criticize the government and prioritize free speech over social harmony.
- Religious Influence: The report also noted differences in attitudes based on religion. For instance, Thai Muslims were more inclined to prioritize social harmony over free speech compared to Thai Buddhists.
Government Justifications
- Lese-Majeste Laws: Thai authorities argue that strict lese-majeste laws are necessary to protect “Thainess” and the monarchy.
- Cambodian Government: Cambodia’s government defends stringent restrictions by portraying opposition politicians and independent media as threats to the nation’s hard-won peace.
- Communist Governments: Vietnam and Laos assert that collective interests take precedence over individual rights.
- Singapore’s Approach: Singapore, a multi-ethnic state, expanded “hate speech” laws, emphasizing the importance of not allowing any race or religion to be attacked or insulted.
Critique of Laws
- Effectiveness Questioned: Critics argue that harsh “hate speech” and other laws in the region may not genuinely preserve social harmony and can restrict freedoms.
- Asia Centre Report: A 2021 report from the Asia Centre contends that such laws reinforce the dominance of the ethno-religious majority, limit freedom of religion or belief, and muzzle grievances from minority communities.
- Political Exploitation: Ethno-religious dominant governments are accused of exploiting societal divisions for political gain.
Conclusion
- Balancing the preservation of national “harmony” with the protection of individual liberties remains a contentious issue.
- As younger, more educated individuals express stronger support for free speech, it suggests the potential for evolving perspectives in the future.
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Freedom of Speech – Defamation, Sedition, etc.
Criminal Defamation in India
From UPSC perspective, the following things are important :
Prelims level: Criminal Defamation
Mains level: Not Much
Central Idea
- The Supreme Court’s recent decision to stay the conviction in a criminal defamation case has significant implications for the parliamentary representation of a prominent political leader.
- The court highlighted the absence of valid reasons for awarding the maximum sentence and emphasized the need for mutual respect and caution in public speeches.
Disqualification of Lawmakers
- This is an important aspect of maintaining the integrity of the legislative bodies.
- In India, disqualification can occur under constitutional provisions and the Representation of The People Act (RPA), 1951.
- Additionally, the Tenth Schedule deals with defection-related disqualifications.
Grounds for Disqualification
- Constitutional Provisions: Disqualification under Articles 102(1) and 191(1) applies to members of Parliament and Legislative Assemblies. Grounds include holding an office of profit, being of unsound mind, insolvent, or lacking valid citizenship.
- Defection: The Tenth Schedule of the Constitution provides for disqualification on the grounds of defection.
- RPA, 1951: This Act mandates disqualification for conviction in criminal cases.
Disqualification under RPA, 1951
- Section 8: Section 8 of the RPA deals with disqualification for conviction of offences.
- Objective: The provision aims to prevent the criminalization of politics and bar ‘tainted’ lawmakers from contesting elections.
- Disqualification Period: Section 8(3) specifies that a person convicted of an offence and sentenced to imprisonment for at least two years will be disqualified from the date of conviction and for an additional six years after release.
Appeal and Stay of Disqualification
- Reversal: Disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favor of the convicted lawmaker.
- Lok Prahari v Union of India: In a 2018 decision, the Supreme Court clarified that the disqualification will not take effect if the appellate court stays the conviction.
- Appeals Process: For example, if a convicted lawmaker appeals, it would first go to the Surat Sessions Court and then to the Gujarat High Court.
Changes in the Law
- Section 8(4) of RPA: Previously, Section 8(4) stated that disqualification takes effect after three months from the date of conviction.
- Lily Thomas v Union of India: In the landmark 2013 ruling, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional.
- Significance: The verdict aimed to prevent convicted politicians from continuing to hold public office while their appeals were pending, contributing to the purification of Indian politics.
Supreme Court’s recent observations
- Lack of Reasoning: The court noted that the trial judge failed to provide any reasons for awarding the maximum sentence, considering the penal code allowed various options for punishment.
- High Court’s Omission: The Supreme Court observed that the High Court, in its judgment, overlooked the crucial aspect of the lack of reasoning behind the severe punishment.
- Impact on Representation: The court highlighted that disqualification from Parliament affects not only the individual but also the electorate represented by the person in question, raising concerns about unrepresented constituencies.
- Exercise of Caution by Public Figures: While accepting the apology for his previous “thief” remarks during the general elections, the Court reminded him of the need for caution in public speeches due to his position in public life.
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Freedom of Speech – Defamation, Sedition, etc.
Should Internet shutdowns be used to maintain public order?
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Frequent Internet shutdowns, need and consequences, Need for an balanced approach
Central Idea
- In recent years, the Indian government has increasingly resorted to internet shutdowns as a means to control law and order in various regions, such as Jammu and Kashmir (J&K), Manipur, and Punjab. India has witnessed a staggering 60% of internet shutdowns worldwide between 2016 and 2022.
Relevance of the topic
India emerged as the single biggest offender for a fifth consecutive year, with at least 84 internet blackouts in 2022
Shutdowns could have devastating impact on human lives such as , it may deepen the gender digital divide, disrupting the ability of women to conduct business or access information on reproductive healthcare
Reasons behind internet shutdowns in India
- Communal tensions: Approximately 40-50% of internet shutdowns in India are officially attributed to communal tensions. Shutdowns are imposed to prevent the spread of rumors, hate speech, and incitement to violence during periods of heightened communal tensions.
- Protests and demonstrations: Shutdowns are frequently imposed during protests and situations of civil unrest to control the spread of information, coordinate activities, and prevent further mobilization of protesters.
- Preventing cheating in exams: Internet shutdowns have been imposed during exams to curb cheating and prevent the use of online resources that may aid in dishonest practices.
- Religious processions: Shutdowns have also been observed during religious processions, particularly in regions with religious sensitivities, to prevent the circulation of inflammatory content and maintain public order.
Case study: Reviewing shutdowns in Jammu and Kashmir (J&K) and Manipur
- Jammu and Kashmir (J&K):
- Prolonged Shutdown: The shutdown in J&K has been characterized by its extended duration, causing significant disruptions to the daily lives of residents. Internet access was severely restricted for an extended period, impacting essential services such as healthcare, education, and livelihoods.
- Lack of Due Process: Concerns have been raised regarding the decision-making process, with instances of shutdowns imposed by district magistrates without higher-level involvement. This raises questions about procedural fairness and the adherence to due process.
- Transparency and Justification: The lack of public information regarding shutdowns in J&K is a cause for concern. The transparency and clarity of justifications for imposing shutdowns are essential for accountability and safeguarding constitutional rights.
- Manipur:
- Ongoing Shutdown and VPN Blocking: The Manipur High Court has formed a committee to explore blocking VPN servers while maintaining restrictions on social media websites. However, the feasibility of this solution is questioned as VPNs also play a role in the exercise of freedom of speech and expression.
- Impact on Livelihoods and Services: The need to protect people’s livelihoods is emphasized, given the reliance on the internet for businesses and livelihoods. Ensuring access to critical services like healthcare and education during shutdowns becomes crucial.
Impact of internet shutdowns
- Restriction of Fundamental Rights: Internet shutdowns curtail the exercise of fundamental rights, such as freedom of expression, access to information, and the right to privacy. These shutdowns limit people’s ability to communicate, express themselves, and access essential information.
- Economic Consequences: Internet shutdowns have adverse effects on businesses, particularly those that rely on the internet for their operations. E-commerce, online services, and digital platforms suffer financial losses during shutdowns.
- Disruption of Essential Services: Internet shutdowns disrupt access to critical services like healthcare, education, and emergency services. Telemedicine, online education, and remote work become inaccessible, impacting people’s well-being, educational opportunities, and productivity
- Human Rights Violations: Prolonged and arbitrary internet shutdowns can be seen as human rights violations. They limit people’s ability to exercise their rights, stifle dissent, and undermine democratic processes.
- Negative Impact on Education: Internet shutdowns disrupt online education, e-learning platforms, and access to educational resources. This hampers educational progress and has long-term consequences for individuals and societies.
- Psychological and Emotional Impact: The inability to connect with others, access information, and engage in online activities can have psychological and emotional implications.
Justifications behind the frequent imposition of shutdowns
- Maintaining Public Order: Internet shutdowns are often imposed as a measure to maintain public order and prevent the escalation of law and order situations.
- Preventing the Spread of Misinformation: During times of crisis or unrest, shutting down the internet is seen as a way to prevent the rapid spread of misinformation and fake news. .
- Curbing Organizational Activities: Shutdowns are also imposed to disrupt the organization and coordination of protests, demonstrations, or other activities perceived as a threat to public order.
- Preserving Exam Integrity: Internet shutdowns may be implemented during examinations to prevent cheating. By restricting access to online resources, authorities aim to ensure the fairness and integrity of the examination process.
The two significant Supreme Court judgments related to internet shutdowns in India
- Anuradha Bhasin v. Union of India (2020): Recognized the right to access the internet as part of the right to freedom of speech and expression. Emphasized that internet shutdowns must be necessary and proportionate, subject to judicial review.
- Faheema Shirin v. State of Kerala (2020): Reaffirmed the importance of internet access for exercising fundamental rights. Stressed that restrictions on internet access should be temporary, proportionate, and justified with reasons
Way forward: Need for balance between maintaining public order and safeguarding the interests of internet-dependent individuals
- Protecting Public Order: Maintaining public order is a legitimate concern for governments to ensure safety, security, and the functioning of society. Internet shutdowns may be employed in exceptional situations where there is a real and imminent threat to public safety or when it is necessary to prevent the spread of violence or unrest.
- Proportionality: Any measure taken to maintain public order, including internet shutdowns, should be proportionate to the threat faced. Shutdowns should be targeted, time-limited, and precisely tailored to address the specific concerns, rather than imposing blanket restrictions that impact the entire population.
- Judicial Oversight: Independent judicial oversight is crucial to ensuring that any restrictions on internet access align with constitutional principles and international human rights standards.
- Transparency and Accountability: Governments should provide clear and transparent justifications for internet shutdowns, including detailing the specific risks or threats that justify such measures. Accountability mechanisms should be in place to address any abuses or violations during shutdowns.
- Targeted Measures: Rather than resorting to complete shutdowns, governments should explore alternative measures that target specific content or platforms that pose risks to public order. Content moderation, selective blocking, or targeted interventions can help address concerns without unduly infringing on individual rights or stifling access to essential services.
Conclusion
- The impact of shutdowns on livelihoods, education, and the economy underscores the urgency to seek alternative solutions. It is imperative that stakeholders reconsider the necessity and consequences of internet shutdowns to ensure a just and balanced approach to maintaining law and order.
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Freedom of Speech – Defamation, Sedition, etc.
Sedition Law in India: The Need for Repeal and Reform
From UPSC perspective, the following things are important :
Prelims level: Section 124A, freedom of speech
Mains level: Sedition laws and concerns over the power orecment agencies
Central Idea
- French author Andre Gide’s statement, “Everything has been said before, but since nobody listens, we have to keep going back and beginning all over again,” aptly reflects the current state of the sedition debate in India. The 279th Law Commission Report, which upholds the sedition law, symbolizes the lack of attention paid to public opinion.
Historical Perspective of Sedition law
- Section 124A of the IPC was introduced during the British Raj in 1870 to suppress dissent and protest against the colonial government.
- The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law. - Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned
What is the ‘Tendency’ Jurisprudence?
- The tendency jurisprudence refers to the legal concept or approach that considers the potential or inclination of an act to incite violence or disturb public order, rather than requiring evidence of actual violence or an imminent threat of violence.
- In the context of sedition laws, it implies that expressions or actions that have a tendency to incite violence or promote hatred, contempt, or disaffection against the government can be penalized, regardless of whether they directly lead to public disorder.
Key points related to the ‘Tendency’ Jurisprudence
- Ambiguity: The ‘tendency’ standard is often criticized for its ambiguity and lack of clarity. It allows for the inclusion of acts or expressions that may not have a direct causal connection with public disorder, making it difficult for judicial and executive bodies to interpret and apply consistently.
- Loose Formulation: The ‘tendency’ standard is a loose formulation that can encompass a wide range of acts or expressions. It opens the possibility of penalizing speech or actions that may not pose an immediate threat but are perceived to have the potential to incite violence or disrupt public order in the future.
- Judicial Challenges: The ‘tendency’ jurisprudence has been subject to legal challenges in various jurisdictions. Critics argue that it can be misused to suppress dissent, curtail freedom of expression, and stifle legitimate criticism of the government, as it broadens the scope of what can be considered seditious.
- Pending Petitions: In the Indian context, there are currently nine petitions pending before the Supreme Court challenging the constitutionality of Section 124A (the sedition law). These petitions raise concerns about the ambiguity and potential misuse of the ‘tendency’ standard, highlighting the need for a clearer and more precise definition of sedition.
- Relevance to Sedition Laws: The ‘tendency’ jurisprudence is significant in the context of sedition laws because it determines whether an act or expression falls within the purview of sedition. By assessing the inclination or potential of an act to incite violence or disrupt public order, authorities can decide whether to initiate sedition charges against individuals.
- Need for Clarity: Critics argue that the ‘tendency’ standard lacks objective criteria and can be subject to interpretation and abuse. There is a demand for a more precise and narrowly defined standard that clearly distinguishes between protected speech and seditious activities to safeguard freedom of expression and prevent misuse of the law.
Concerns over the Power of the police in the enforcement of sedition laws
- Investigation and Enquiry: The Law Commission’s recommendation that a police officer, holding the rank of an Inspector or higher, should conduct a “preliminary enquiry” before registering a First Information Report (FIR) in sedition cases. This suggests that the police are granted the power to determine whether an act or expression has the tendency to incite violence, even without proof of actual violence or imminent threat.
- Ambiguous Standards: The proposed amendment to include the “tendency to incite violence” in sedition laws further adds ambiguity to the assessment of seditious acts. This gives police officers discretionary power to judge whether an act has an inclination towards violence, creating potential room for misuse or subjective interpretations.
- Wide Net and Misuse: The are concerns that the proposed amendment and the broad discretion given to police officers could result in a wide net being cast, potentially encompassing acts that have no real connection to public disorder.
- Political Influence: The police officers, especially when influenced by those with political clout at the local, state, or national level, may exercise their power selectively and target individuals or groups critical of the government. This can lead to a suppression of dissent and the abuse of police power for political purposes.
Disregard for Ground Realities
- Invalidation of Sedition Laws: The Law Commission overlooks developments in other countries where sedition laws have been invalidated or repealed. It suggests that the Commission dismisses these developments by claiming that the “ground realities” in India are different.
- High Number of Cases: India has witnessed a significant number of sedition cases filed against individuals for criticizing the government or engaging in harmless activities. It cites the example of 174 cases of sedition filed against nearly 950 individuals since 2010.
- Confusion caused by Precedent: The confusion caused by the Kedar Nath Singh precedent is another aspect of ground realities that the Commission failed to address. The Supreme Court’s admission of multiple petitions challenging the constitutionality of Section 124A, based on the confusion stemming from the Kedar Nath Singh case, indicates the need for clarity and reform in the interpretation and application of sedition laws.
- Impact on Freedom of Expression: The disregard for ground realities also encompasses the impact of sedition laws on freedom of expression and dissent. The Commission’s recommendation to retain sedition laws fails to consider the stifling effect these laws can have on individuals’ ability to question authority, engage in political criticism, or express dissenting views without fear of criminal repercussions
Way forward
- Narrowing the Definition of Sedition: Refining and narrowing the definition of sedition can help prevent its misuse. The focus should be on acts or speech that directly incite violence or pose a genuine threat to the territorial integrity or sovereignty of the country.
- Safeguarding Freedom of Speech: Safeguards should be put in place to protect individuals’ right to free speech and expression, while allowing for robust public debate and the peaceful expression of dissenting opinions.
- Transparency and Accountability: Establish mechanisms to promote transparency and accountability in the application of sedition laws. This includes clear guidelines for law enforcement agencies, regular review of cases, and strict consequences for misuse of the law.
- Public Awareness and Legal Education: Promote public awareness and legal education about the scope and limitations of the sedition law. This can help individuals understand their rights and responsibilities, empowering them to exercise their freedom of speech responsibly while avoiding unlawful acts.
- Focus on Alternative Measures: Emphasize the use of alternative legal measures, such as laws related to defamation, incitement to violence, or hate speech, to address genuine threats to public order or national security. These laws should be effectively enforced to protect individuals without infringing upon their fundamental rights.
Conclusion
- The Law Commission’s recommendations, which include vague standards and police empowerment, do not address the fundamental issues with the sedition law. Lingual changes and procedural reforms alone cannot rectify the deep-rooted problems associated with Section 124A. It is imperative to promote free speech, protect dissent, and foster accountability in a post-colonial democracy like India.
Also read:
Sedition Law: A Threat to Freedom of Expression in India |
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Freedom of Speech – Defamation, Sedition, etc.
Sedition Law: A Threat to Freedom of Expression in India
From UPSC perspective, the following things are important :
Prelims level: Section 124A IPC, Freedom of Speech
Mains level: Ambiguity around the Sedition law, concerns and recommendations
Central Idea
- In its 279th Report, the Law Commission of India has recommended the retention of Section 124A of the Indian Penal Code, commonly known as the Law of Sedition, along with enhanced punishment for the offense in the name of national security.
What is Sedition?
The Section 124A defines sedition as:
- An offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.
- Disaffection includes disloyalty and all feelings of enmity.
- However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
- Sedition is a non-bailable offense.
- Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine
Historical Perspective
- Section 124A of the IPC was introduced during the British Raj in 1870 to suppress dissent and protest against the colonial government.
- The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
- Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
- Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.
Two notable interpretations which added to the ambiguity surrounding the sedition law
- Queen Empress vs Bal Gangadhar Tilak (1897)
- In this case, Bal Gangadhar Tilak, a prominent freedom fighter, was charged with sedition for writing articles in a Marathi weekly called Kesari that invoked Shivaji and were seen as inciting disaffection towards the British government.
- The court held that sedition encompassed the act of exciting disaffection towards the government, even if it did not incite rebellion or violence.
- This interpretation broadened the scope of the offense to include political hatred of the government.
- Niharendu Dutt Majumdar And Ors. vs Emperor (1942): Federal Court.
- The court acquitted the accused, and Chief Justice Sir Maurice Gwyer explained that the essence of sedition lies in public disorder or the reasonable anticipation thereof.
- According to this interpretation, sedition would be committed only when there is incitement to violence or disorder.
Constitutionality of Sedition
- Violation of Freedom of Speech and Expression: The sedition law, as defined in Section 124A of the Indian Penal Code, infringes upon the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution. It criminalizes acts that bring hatred, contempt, or disaffection towards the government, which curtails the citizens’ ability to express their political dissent and discontent.
- Democratic Principles: Disaffection towards a government, which is subject to change through the electoral process, cannot be treated as a criminal offense. The sedition law restricts the democratic principles of public debate, dissent, and accountability.
- Omission from the Constitution: During the drafting of the Indian Constitution, the Constituent Assembly deliberately excluded sedition as a reasonable restriction on the freedom of speech and expression. This omission signifies the Assembly’s intent to safeguard the citizens’ right to express their opinions, including dissenting views on the government.
- Ambiguity and Misuse: The broad wording and lack of precise definition allow for arbitrary interpretations, leading to the stifling of legitimate dissent and the targeting of individuals or groups critical of the government. This misuse undermines the rule of law and constitutional protections.
- Chilling Effect on Free Speech: The existence of a sedition law creates a chilling effect on free speech and expression. The fear of potential sedition charges discourages individuals from openly expressing their opinions and engaging in robust public discourse, inhibiting the free flow of ideas and opinions necessary for a healthy democracy.
- Conflict with International Standards: International bodies such as the United Nations Human Rights Committee have consistently expressed concerns about the misuse of sedition laws and called for their repeal or amendment to align with international human rights standards.
Inconsistencies regarding the sedition law in India
- Interpretational Inconsistencies: The Tilak case (1897) interpreted sedition as exciting disaffection towards the government, even without inciting violence or rebellion. However, the Majumdar case (1942) acquitted the accused by emphasizing that sedition requires a tendency to incite violence or disorder.
- Varying Judicial Approaches: The Supreme Court’s approach in the Kedarnath case (1962) further adds to the inconsistencies. While the Court upheld the constitutionality of the sedition law, it narrowed its application to only acts that incite violence. The Court’s attempt to retain sedition despite acknowledging its exclusion from the draft Constitution and concerns over its severity creates a contradictory stance.
- Lack of Clarity in Statutory Language: The language of Section 124A of the Indian Penal Code, which defines sedition, lacks precision and clarity. The vague terms such as hatred, contempt, and disaffection make it susceptible to subjective interpretations and misuse by law enforcement authorities. This lack of clarity contributes to the inconsistent application of the sedition law.
- Conflict with Constitutional Principles: The sedition law, as it stands, conflicts with constitutional principles, particularly the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution. The broad interpretation of sedition and its criminalization of political dissent and disaffection towards the government infringe upon citizens’ constitutional rights.
- Disparity with International Standards: International bodies, including the United Nations Human Rights Committee, have expressed concerns about the misuse of sedition laws and recommended their repeal or amendment to align with international human rights norms. This disparity highlights the inconsistencies between the sedition law in India and global standards.
Way ahead: Recommendations to strike a balance
- Repeal or Substantial Reform: Given the inconsistencies, ambiguity, and potential for misuse, there is a strong case for the repeal or substantial reform of the sedition law. This could involve narrowing the scope of the offense, clarifying the language, and aligning it with constitutional principles and international human rights standards.
- Precise Definition: The sedition law should be defined more precisely to avoid ambiguity and subjective interpretations. A clear and specific definition would help establish the boundaries of the offense, ensuring that it is not misused to suppress legitimate dissent or criticism.
- Balancing National Security and Freedom of Expression: Any reform or amendment to the sedition law should strike a balance between protecting national security and safeguarding freedom of expression. This can be achieved by focusing on acts that pose a genuine threat to public order, incite violence, or endanger the integrity of the state while ensuring that peaceful dissent and criticism are not stifled.
- Judicial Clarity: The judiciary should provide consistent and well-defined guidelines for the interpretation and application of the sedition law. Clear guidelines would help prevent arbitrary enforcement and provide greater clarity on the limits of the offense.
- Safeguards and Procedural Reforms: Implementing safeguards and procedural reforms can help prevent the misuse of the sedition law. This may include requiring higher standards of evidence, ensuring transparency and accountability in investigations and prosecutions, and providing avenues for redress in cases of wrongful or frivolous charges.
- Public Awareness and Sensitization: There is a need for public awareness campaigns and sensitization programs to educate citizens, law enforcement authorities, and the judiciary about the nuances of freedom of expression and the potential pitfalls of the sedition law.
- International Dialogue and Learning: Engaging in international dialogue and learning from best practices can provide valuable insights for reforming the sedition law. Studying the experiences of other democratic countries and considering international human rights standards can help shape more effective and rights-respecting legislation.
Conclusion
- The interpretation and application of Section 124A have been inconsistent, leading to misuses and abuses by law enforcement authorities. The Law Commission’s recent recommendations for enhancing punishment and incorporating the tendency to incite disorder fail to address the core issue of the law’s unconstitutionality. It is imperative to reevaluate and repeal the sedition law to protect and uphold the democratic values of free speech and expression in India.
Also read:
Sedition Law in India |
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Freedom of Speech – Defamation, Sedition, etc.
Sedition Law in India
From UPSC perspective, the following things are important :
Prelims level: Section 124A IPC, Freedom of Speech
Mains level: Evolving nature of sedition and concerns
Central Idea
- In a recent development, the Lahore High Court in Pakistan annulled the offence of sedition in their penal code, raising questions about India’s similar provision under Section 124A. While a challenge to this law is pending before the Indian Supreme Court, the underlying logic of sedition persists and has found its way into various provisions that criminalize speech.
What is Sedition?
- The Section 124A defines sedition as, an offence committed when any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India.
- Disaffection includes disloyalty and all feelings of enmity. However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
- Sedition is a non-bailable offense. Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.
- Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
How the offensive speech reinforces existing social hierarchies and inequality?
- Reinforcing Dominant Narratives: Offensive speech often aligns with the dominant narratives propagated by those in power. It reinforces and upholds the existing social order by validating and amplifying the perspectives and ideologies of the privileged groups.
- Perpetuating Stereotypes and Prejudices: Offensive speech often relies on stereotypes and prejudices that are deeply rooted in social hierarchies. By perpetuating these stereotypes, offensive speech reinforces the existing inequalities and discriminates against individuals based on their identities, such as caste, race, gender, religion, or socioeconomic status.
- Suppressing Dissent and Alternative Voices: Offensive speech can be used as a tool to suppress dissent and alternative viewpoints. It creates an environment of fear and intimidation, discouraging individuals from challenging the status quo or speaking out against injustice.
- Creating Emotional and Psychological Harm: Offensive speech reinforces negative self-perceptions, perpetuates feelings of inferiority, and reinforces internalized oppression. This can lead to a lack of confidence, self-censorship, and a reluctance to participate in public discourse, further perpetuating existing social hierarchies.
- Unequal Consequences and Legal Frameworks: Offensive speech often faces unequal consequences based on the social position of the speaker and the target. Marginalized individuals are more likely to face severe repercussions for their speech, while privileged individuals often enjoy greater impunity.
How entrenched Hierarchies manifest in the law in India?
- Caste-Based Discrimination: The deeply rooted caste system in India influences the legal framework. Despite constitutional safeguards and affirmative action policies, lower-caste individuals continue to face discrimination and marginalization.
- Unequal Access to Justice: Marginalized communities, including lower castes, tribal communities, and economically disadvantaged groups, often encounter barriers in accessing justice. Limited legal awareness, inadequate legal aid services, and bias within the judiciary can result in unequal access to justice.
- Discriminatory Laws and Practices: Personal laws based on religious or customary practices can reinforce gender inequality and restrict the rights of women. Similarly, laws related to land ownership, inheritance, and labor rights may disproportionately affect marginalized communities, reinforcing existing social disparities.
- Limited Representation and Diversity: The underrepresentation of individuals from lower castes, tribal backgrounds, and other marginalized groups in positions of power within the legal system can lead to biases and insensitivity towards their concerns and needs. This lack of diversity can perpetuate hierarchical power structures and hinder efforts to address social inequalities.
- Selective Enforcement and Impunity: The enforcement of laws in India can be selective, leading to unequal treatment based on social, economic, or political factors. Marginalized communities may experience higher rates of arrests, police brutality, and arbitrary detention. Meanwhile, individuals with social and economic power may enjoy impunity for their actions, perpetuating social hierarchies within the legal system.
Facts for prelims
Case | Key Points |
Kedar Nath Singh v. State of Bihar, 1962 | – Upheld the constitutionality of Section 124A (sedition) of the IPC. – Clarified that criticism of the government without incitement to violence is not sedition. |
Balwant Singh v. State of Punjab, 1995 | – Stated that sedition requires a clear intention to incite violence or public disorder. – Holding opinions or raising slogans against the government without violent intent is not sedition. |
Shreya Singhal v. Union of India, 2015 | – Struck down Section 66A of the IT Act, which criminalized offensive online speech. – Emphasized the importance of protecting freedom of speech in the digital age. |
Common Cause v. Union of India, 2016 | – Expressed concerns about the misuse of sedition laws. – Called for a narrow and precise interpretation of the offense. |
Maneka Gandhi case, 1978 | – Expanded the interpretation of the right to personal liberty and due process under Article 21 of the Constitution. – Emphasized that laws must be reasonable, fair, and just. |
Vinit Kumar v. CBI, 2019 | – Reiterated that criticism of the government, unless inciting violence, does not amount to sedition. – Emphasized the need to prevent the misuse of sedition laws. |
Evolving nature of the interpretation and application of sedition laws
- Striking Down Sedition Laws: In recent years, there have been calls to strike down or reform sedition laws, questioning their compatibility with democratic principles and the right to free expression. The Lahore High Court’s decision to annul the offence of sedition in Pakistan’s penal code exemplifies this growing debate.
- Constitutional Challenges: The Supreme Court of India has examined the validity and scope of Section 124A in several cases. While the law may remain in abeyance without being formally struck down, these constitutional challenges create an opportunity to redefine the boundaries of sedition and ensure its alignment with constitutional principles.
- Expansion of Speech Offenses: The logic of sedition has extended beyond the specific offense itself and transplanted into other provisions of law that criminalize speech. In the Indian context, laws that criminalize hurting religious sentiments or sentiments of particular communities share similarities with sedition.
- Chilling Effect on Freedom of Speech: The fear of prosecution and the potential consequences, such as arrests, imprisonment, or social repercussions, may lead individuals to self-censor or refrain from expressing dissenting opinions.
- Judicial Pronouncements: Judicial pronouncements play a crucial role in shaping the mutating logic of sedition. Courts have an opportunity to interpret and apply sedition laws in a manner that upholds freedom of speech, safeguards democratic values, and ensures a reasonable balance between the state’s legitimate interests and citizens fundamental rights.
- For example: Recent judgment such as the Media One case have emphasized the importance of protecting freedom of speech, criticizing the misuse of sedition for curbing dissent and censoring speech.
Way forward
- Narrowing the Definition of Sedition: Refining and narrowing the definition of sedition can help prevent its misuse. The focus should be on acts or speech that directly incite violence or pose a genuine threat to the territorial integrity or sovereignty of the country. This would help avoid undue restrictions on dissent and criticism of the government.
- Safeguarding Freedom of Speech: It is crucial to ensure that the sedition law is not misused as a tool to suppress legitimate criticism, dissent, or peaceful protests. Safeguards should be put in place to protect individuals’ right to free speech and expression, while allowing for robust public debate and the peaceful expression of dissenting opinions.
- Transparency and Accountability: Establish mechanisms to promote transparency and accountability in the application of sedition laws. This includes clear guidelines for law enforcement agencies, regular review of cases, and strict consequences for misuse of the law. Proper oversight and monitoring can help prevent arbitrary arrests and protect individuals from wrongful prosecution.
- Public Awareness and Legal Education: Promote public awareness and legal education about the scope and limitations of the sedition law. This can help individuals understand their rights and responsibilities, empowering them to exercise their freedom of speech responsibly while avoiding unlawful acts.
- Focus on Alternative Measures: Emphasize the use of alternative legal measures, such as laws related to defamation, incitement to violence, or hate speech, to address genuine threats to public order or national security. These laws should be effectively enforced to protect individuals without infringing upon their fundamental rights.
Conclusion
- Beyond the formal striking down of Section 124A, it is essential to address the underlying logic of sedition and its influence on various provisions that curtail freedom of speech. Recognizing the entangled relationship between law and society, and the hierarchical power dynamics that shape the prosecution of speech offenses, is paramount in safeguarding democratic values and upholding freedom of expression.
Also read:
Re-examination of Sedition Law in motion: Govt informs SC |
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Freedom of Speech – Defamation, Sedition, etc.
Private: Anuradha Bhasin Guidelines on Internet Shutdown
Freedom of Speech – Defamation, Sedition, etc.
Freedom of Speech the ‘Bulwark’ of Democracy: Andhra HC
From UPSC perspective, the following things are important :
Prelims level: Right to Assemble, Article 19
Mains level: Read the attached story
Central Idea: The Andhra Pradesh High Court has overturned a Government Order (GO) issued by the state government that aimed to regulate public meetings, processions, and assemblies on roads.
Key takeaways of the ruling
- The court held that the right to assemble, protest peacefully, and express one’s opinion freely was a precious freedom.
- It emphasized that this freedom should not be curtailed based on unproven assertions made by government officials.
- The court reiterated that freedom of speech was considered the foremost among liberties and was crucial for democracy.
- It stated that such a precious freedom should not be left to the unrestricted discretion of any individual.
AP move regulating Public Assembly
- The GO sought to regulate public meetings and assemblies on roads, roadsides, and margins.
- The state government argued that the regulations were necessary to address fatal accidents and ensure smooth traffic flow.
- Sections 30, 30A, and 31 of the Police Act, 1861 were cited as the basis for the directions under the GO.
High Court’s decision and reasoning
- The court set aside the GO, ruling that it imposed a ban on all meetings on public highways and roads.
- It stated that accidents or incidents at specific locations should not result in a total restriction on the right to assemble or conduct processions on other roads.
- The court suggested studying the causes of incidents and issuing guidelines to prevent their recurrence rather than imposing broad restrictions.
Upholding the Right to Assembly
- The court asserted that the right to assemble, protest peacefully, and express opinions freely is a fundamental freedom that cannot be curtailed arbitrarily.
- Freedom of speech is regarded as a crucial pillar of democracy and must not be subject to unfettered discretion.
- The court deemed the power conferred by the GO as excessive, arbitrary, and failing the test of proportionality.
Reference: 2018 SC Ruling on Peaceful Assembly
- The court referred to the guidelines laid down in the Supreme Court’s ruling in “Mazdoor Kisan Shakti Sangathan v Union of India (2018).”
- The guidelines regulate protests and demonstrations, recognizing the right to peaceful assembly while allowing reasonable restrictions.
- The ruling includes provisions on the number of participants, minimum distances from important locations, and restrictions during visits by foreign dignitaries.
Back2Basics: Right to Assemble
- The right to assemble in India refers to the fundamental right guaranteed under Article 19(1)(b) of the Constitution of India.
- It grants individuals the freedom to peacefully assemble, protest, and hold public meetings or processions.
- This right allows citizens to come together to express their views, opinions, and grievances collectively in a public setting.
- It is an essential aspect of democracy, enabling citizens to engage in peaceful activism, raise awareness about social issues, and participate in public discourse.
- However, reasonable restrictions can be imposed on this right in the interest of public order, morality, and the sovereignty and integrity of India.
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India drops 11 places to rank 161 in World Press Freedom Index
From UPSC perspective, the following things are important :
Prelims level: World Press Freedom Index
Mains level: Freedom of press in India and global propaganda
Central Idea: India’s ranking in the 2023 World Press Freedom Index has slipped to 161 out of 180 countries, according to the latest report released by global media watchdog Reporters Without Borders (RSF).
What is Press Freedom Index?
- The PFI is an annual ranking of countries compiled and published by Reporters without Borders since 2002.
- It is based upon the organisation’s own assessment of the countries’ press freedom records in the previous year.
- It defines press freedom as “the ability of journalists as individuals and collectives to select, produce, and disseminate news in the public interest independent of political, economic, legal, and social interference and in the absence of threats to their physical and mental safety.”
- It intends to reflect the degree of freedom that journalists, news organisations, and netizens have in each country, and the efforts made by authorities to respect this freedom.
- It does not measure the quality of journalism in the countries it assesses, nor does it look at human rights violations in general.
Irony of the rankings
- In 2022, India was ranked at 150.
- Pakistan has fared better when it comes to media freedom as it was placed at 150, an improvement from last year’s 157th rank.
- Afghanistan was ranked 152nd. This raises some questions about the methodology of the index.
Global scenario
- Sri Lanka also made significant improvement on the index, ranking 135th this year as against 146th in 2022
- Norway, Ireland and Denmark occupied the top three positions in press freedom, while Vietnam, China and North Korea constituted the bottom three.
Back2Basics: Freedom of Press and Constitutional Provisions
- The Supreme Court in Romesh Thappar v. the State of Madras, 1950 observed that freedom of the press lay at the foundation of all democratic organisations.
- It is guaranteed under the freedom of speech and expression under Article 19, which deals with ‘Protection of certain rights regarding freedom of speech, etc.
- Freedom of the press is not expressly protected by the Indian legal system but it is impliedly protected under article 19(1) (a) of the constitution.
- The freedom of the press is also not absolute.
Reasonable restrictions
- A law could impose only those restrictions on the exercise of this right, it faces certain restrictions under Article 19(2), which are as follows:
- Sovereignty and integrity of India
- Security of the State,
- Friendly relations with foreign States
- Public order, decency or morality
- Contempt of court
- Defamation
- Incitement to an offence
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Freedom of Speech – Defamation, Sedition, etc.
Re-examination of Sedition Law in motion: Govt informs SC
From UPSC perspective, the following things are important :
Prelims level: Section 124A IPC, Freedom of Speech
Mains level: Read the attached story
Central idea: The Centre has informed Supreme Court that it has initiated the “process of re-examination” of Section 124A (sedition) of the Indian Penal Code and consultations are in its “final stage”.
What is the Sedition Law?
- Section 124A of the Indian Penal Code lays down the punishment for sedition. The IPC was enacted in 1860, under the British Raj.
- The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
- Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
- Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.
Do you know?
Queen-Empress v. Bal Gangadhar Tilak (1897) was the first case in which Section 124A was defined and applied. Again in 1908, when Tilak was tried under same section, then young barrister and a staunch protagonist Mohammed Ali Jinnah defended Tilak.
What is Sedition?
- The Section 124A defines sedition as:
An offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.
- Disaffection includes disloyalty and all feelings of enmity.
- However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
- Sedition is a non-bailable offense.
- Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.
Sedition as a cognizable offense
- Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
- In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.
Is it constitutionally valid?
- Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
- Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
- Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
- Limited use: At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
- Strong criticism doesn’t amount to sedition: Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.
Why the controversy now?
- Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
- Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
- Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
- Irrelevance: Many of them have also been detained under the National Security Act and UAPA.
What is being debated about it?
- Demand for its scrapping: Liberals and rights activists have been demanding the scrapping of Section 124A.
- Provision is outdated: It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
- Various calls for its reconsideration: The Law Commission has also called for a reconsideration of the section.
- Tyranny of the law: It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
- Doctrine of severability: Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.
Need for such law
- There are some tendencies exist even today who wish to overthrow the state apparatus and constitutional scheme of India.
- It falls on the judiciary to protect Articles 19 and Article 21 of the Constitution.
- Undue exercise of free speech has led to overture of ordinary dissent into an anti-national insurrection or uprising.
- There are areas in the country that face hostile activities and insurgencies created by rebel groups, like the Maoists.
- There must be restrictions on expressing unnecessary contempt or ridiculing of the Government beyond certain limits.
Way forward
- India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy.
- The sedition law should not be abolished as some measures are needed to check communal violence & insurgency activities like Naxals.
- The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
- Section 124A should not be misused as a tool to curb free speech.
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Freedom of Speech – Defamation, Sedition, etc.
Principles of Natural Justice and Proportionality
From UPSC perspective, the following things are important :
Prelims level: Natural Justice, Proportionality
Mains level: Freedom of press
Central idea
- The Supreme Court lifted a broadcasting ban on a Malayalam news channel ‘MediaOne’.
- The court blasted the government for silencing voices in the media who “speak truth to power” by branding them as “anti-establishment”.
A quick recap of the case
- The Ministry of Information and Broadcasting (MIB) has earlier refused to renew broadcast license of a Malayalam news channel.
- The Ministry of Home Affairs had declined to grant security clearance to the channel’s promoters citing alleged links between radical groups.
- Hence the news agency approached Kerala High Court, which upheld the ban on February 9, 2022
- The Supreme Court granted temporary relief and allowed it to resume operations.
Supreme Court’s ruling
- The Supreme Court set aside earlier ban orders and upheld the channel’s appeal on two procedural grounds, namely
- Principles of natural justice and
- Proportionality
Articles invoked in the judgment
- The Court stated that the burden shifts on the Centre to prove that the procedure followed was reasonable and in compliance with the requirements of Articles 14 and 21 of the Constitution.
- The Court used the standard of proportionality to test the reasonableness of the procedure in the present case and assessed the validity of public interest immunity claims based on the “structured proportionality standard”.
- The Court found that the reasons for denying security clearance to the channel were not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution.
Key concepts involved
(1) Principles of natural justice
- The principles of natural justice are a set of procedural rules that ensure fairness and justice in administrative and legal proceedings.
- These principles are based on the fundamental idea that everyone is entitled to a fair hearing, and they are aimed at preventing arbitrary or biased decisions by decision-makers.
- The SC bench allowed the challenge to the MHA order and judgment of the High Court on account of the principles of natural justice constitutionalized by its judgment in its 1978 ruling in “Maneka Gandhi vs Union of India”
- Actions which violate procedural guarantees can be struck down even if non-compliance does not prejudice the outcome of the case.
(2) Proportionality
- The principle requires that the decision or action must be proportionate to the objective it seeks to achieve.
- In other words, the means employed to achieve the objective must be no more than necessary to achieve it, and the harm caused by the decision or action must not be excessive in relation to the benefit gained.
- The validity of the claim of involvement of national security considerations must be assessed on the test of whether there is material to conclude that the non-disclosure of information is in the interest of national security.
- Courts can assess the validity of public interest immunity claims based on the “structured proportionality standard”, said the SC.
- The SC observed that sealed cover proceedings infringe the principles natural justice and open justice.
Conclusion
- The Court’s ruling has been welcomed by media organizations and civil society groups as a victory for freedom of speech and expression
- The Court observed that the duty to act fairly derived from common law is not exhaustively defined in a set of concrete principles, and the concept of natural justice “cannot be put into a ‘straitjacket formula’.
- The ruling has been hailed as a victory for freedom of speech and expression, and a blow to attempts to stifle dissent and critical voices in the media.
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Freedom of Speech – Defamation, Sedition, etc.
Section 153A: its use and misuse
From UPSC perspective, the following things are important :
Prelims level: Section 153A of IPC
Mains level: Free speech and defamation
Central idea: A politician was recently arrested under Section 153A of IPC for the alleged use of objectionable words against the Prime Minister.
Section 153A: What the law says
- Section 153A of the Indian Penal Code (IPC) penalises “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”.
- This is punishable with imprisonment up to three years, or with fine, or with both.
- The provision was enacted in 1898 and was not in the original penal code.
- At the time of the amendment, promoting class hatred was a part of the English law of sedition, but was not included in the Indian law.
Charges laid for remarks against PM
The FIR mentioned the use of Sections-
- 153B(1) (Making imputations, assertions prejudicial to national integration);
- 295A (Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs);
- 500 (Defamation); and
- 504 (Intentional insult with intent to provoke breach of the peace).
Conviction rates under Section 153A
- Data from the National Crime Records Bureau (NCRB) show that the rate of conviction for Section 153A is very low.
- In 2020, 1,804 cases were registered, six times higher than the 323 cases in 2014.
- However, the conviction rate in 2020 was 20.2%, suggesting that the process often becomes the punishment.
Issues with the law
- Hate speech laws have been invoked under regimes of all parties to crack down on criticism of public functionaries and to arrest individuals.
- The invocation of Section 153A is often criticized for restricting free speech and misusing the legal processes for political purposes.
Safeguards against misuse
- Given that the provisions are worded broadly, there are safeguards against its misuse.
- For example, Sections 153A and 153B require prior sanction from the government for initiating prosecution.
- But this is required before the trial begins, and not at the stage of preliminary investigation.
- To curb indiscriminate arrests, the Supreme Court laid down a set of guidelines in its 2014 ruling in Arnesh Kumar v State of Bihar.
- As per the guidelines, for offenses that carry a sentence of fewer than seven years, the police cannot automatically arrest an accused before investigation.
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Freedom of Speech – Defamation, Sedition, etc.
Disclosure of Journalistic Sources by Press
From UPSC perspective, the following things are important :
Prelims level: Article 19
Mains level: Freedom of press
While rejecting a closure report filed by the CBI, a Delhi court said there is “no statutory exemption in India to journalists from disclosing their sources to investigating agencies”.
What is the news?
- The CBI had sought to close its investigation on how certain news channels and a newspaper had aired and published reports related to a disproportionate assets case against a leader.
- It had argued that the “documents used by the news channel were forged” but it could not be established who forged the documents.
- This certainly amounts to creation of fake news.
Legal protection for disclosure of Journalistic Sources
Ans. Freedom of Speech and Expression under Article 19
- In India, there is no specific legislation that protects journalists from being asked to disclose their sources.
- Article 19 of the Constitution guarantees the right to freedom of speech and expression to all citizens.
- Investigative agencies can issue notice to anyone, including journalists, to provide information.
- Like any citizen, a journalist can be compelled to give evidence in Court.
- If she does not comply, the journalist can face charges of Contempt of Court.
Freedom of Press
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What have courts said on this issue?
- While the Supreme Court broadly recognises the freedom of the press, including the right of journalists to ensure the protection of their sources, various courts have ruled differently on this issue.
- In the Pegasus spyware case (2021), the Court underlined that the protection of journalistic sources is one of the basic conditions for the freedom of the press.
- In 2019, the Supreme Court in a review petition in the Rafale case overruled the Centre’s objections on the petitioner’s claims since they relied on purportedly “stolen” confidential documents.
Is there any legal enforcement?
Ans. No
- Courts have in “public interest asked journalists to disclose their sources. In the absence of a specific law, it is often the discretion of a Court.
- Under the Press Council of India (PCI) Act, of 1978, the Press Council has powers of a civil court to deal with complaints when a newspaper has “offended against the standards of journalistic ethics.”
- However, the Council cannot force a newspaper, news agency, journalist, or editor to reveal their sources during the proceedings.
- The Whistleblower Protection Act, 2014 offers protection to people disclosing acts of corruption, wilful misuse of power, or criminal offences by public servants, in public interest.
Recommendations for a change in law
Ans. Recognition under Indian Evidence Act
- The Law Commission of India in its 93rd Report in 1983 recommended recognising journalistic privilege by amending the Indian Evidence Act.
- In its 185th report on the amendments to the Evidence Act, the Law Commission again suggested this amendment.
Position in other countries
- United Kingdom: The Contempt of Courts Act 1981 creates a presumption in favour of journalists who want to protect the identity of their sources. However, that right is subject to certain conditions in the “interest of justice”.
- United States: Although the First Amendment guaranteeing free speech in the United States specifically mentions the press, the Supreme Court has held that journalists do not have the right to refuse to testify in a federal grand jury proceeding and disclose sources.
- Sweden: The Freedom of the Press Act in Sweden is a broad protection of rights of journalists and even extends to state and municipal employees who might share information with journalists freely. In fact, a journalist who reveals his or her source without consent may be prosecuted at the behest of the source.
- France and Germany: Journalists can refuse to disclose sources in an investigation.
Need for non-disclosure
- Debated issue: The right of journalists to use and protect confidential sources is a debated topic.
- Vitality of larger public interest: Many journalists say that confidential sources are an essential tool in the search to uncover information of great public interest.
- Prevent oppression: It is a reporter’s need and duty to protect the identity of the source of his information or else vital information of concern to the people in a democracy would be suppressed.
Why are we discussing this?
- Media malpractices are on rise: When the public interest is compelling and the disclosure outweighs the public interest then the sources can be revealed.
- Serious allegations and media trial: The court can also require disclosure of the source of the news relates to a public office or public official and serious allegations have been made against him.
- Defamation by media: Also if there is a defamatory article against a person then the Court may compel the journalist to reveal his source.
Why media needs protection for sources?
Where source protection is compromised, the impacts can include:
- Pre-publication exposure of journalistic investigations may trigger cover-ups, intimidation, or destruction of information,
- Revelation of sources’ identities has legal or extra-legal repercussions,
- Sources of information running dry,
- Self-censorship by journalists and citizens.
Conclusion
- Indian law on source disclosure is limited and has mostly been determined by courts on a case-by-case basis.
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Freedom of Speech – Defamation, Sedition, etc.
Hate speech a menace, buck stops at Centre: SC
From UPSC perspective, the following things are important :
Prelims level: Freedom of speech and reasonable restrictions
Mains level: Free speech vs. Hate speech
The Supreme Court has said the “buck ultimately stops with the government” to clamp down on hate speech and hate crimes, as they are offenses committed on society.
What is ‘Hate Speech’?
- There is no specific legal definition of ‘hate speech’.
- The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like …
- Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”
- In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.
Attributes of Hate Speech
Hate Speech has three important attributes:
- Hate speech can be conveyed through any form of expression, including images, cartoons, memes, objects, gestures and symbols and it can be disseminated offline or online.
- Hate speech is “discriminatory” (biased, bigoted or intolerant) or “pejorative” (prejudiced, contemptuous or demeaning) of an individual or group.
- Hate speech calls out real or perceived “identity factors” of an individual or a group, including: “religion, ethnicity, nationality, race, colour, descent, gender,” but also characteristics such as language, economic or social origin, disability, health status, or sexual orientation, among many others.
How is it treated in Indian law?
- Provisions in law criminalize speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.
- Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.
[I] Section 153A:
- Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.
[II] Section 505:
- 505(1): Statements conducing to public mischief– The statement, publication, report or rumour that is penalized under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquillity. This attracts a jail term of up to three years.
- 505(2): It is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.
- 505(3): Same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.
Some Supreme Court Judgements
1.Rangila Rasool case
- Rangila Rasool was a tract brought out by a Hindu publisher — that had made disparaging remarks about the Prophet’s private life.
- Cases against the first pamphlet, filed under Section 153A, were dismissed by the Punjab and Haryana High Court, which examined the question whether targeting religious figures is different from targeting religions.
- This debate in interpretation prompted the colonial government to enact Section 295A with a wider scope to address these issues.
2. Ramji Lal Modi v State of Uttar Pradesh
- The constitutionality of Section 295A was challenged.
- The Supreme Court upheld the law on the grounds that it was brought in to preserve “public order”.
- Public order is an exemption to the fundamental right to freedom of speech and expression and the right to religion recognised by the Constitution.
3. Ramlal Puri v State of Madhya Pradesh
- In 1973, the Supreme Court said the test to be applied is whether the speech in question offends the “ordinary man of common sense” and not the “hypersensitive man”.
- However, these determinations are made by the court and the distinction can often be vague and vary from one judge to the other.
4.Baragur Ramachandrappa v State of Karnataka:
- A 2007 decision of the Supreme Court, “a pragmatic approach” was invoked in interpreting Section 295A.
- The state government had issued a notification banning Dharmakaarana, a Kannada novel on the ground that it was hate speech, invoking a gamut of provisions including Section 295A.
Why curb hate speeches?
- Creates social divide: Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
- Threat to peaceful co-existence: The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.
Issues in regulating hate speech
- Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
- Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
- Legal complications: An over-reliance on legal instruments to solve fundamental social and political problems often backfires.
- Misuse of Laws: Lower conviction rates for these provisions indicate that the process where a police officer can arrest without a warrant is often the punishment.
- Violation of free speech: Critics have pointed out that these laws are intended for the state to step in and restore “public order” rather than protect free speech.
- Vague terms in the law: The broad, vague terms in the laws are often invoked in its misuse.
- Old-aged Laws: Section 295A lie in the communally charged atmosphere of North India in the 1920s.
Suggestions made by Law Commission
In its 267th report, the Law Commission of India proposed including the following two provisions:
- Section 153C covers crimes committed when someone threatens someone with remarks meant to incite fear, hatred, or violence based on someone’s race, caste, religion, sex, gender identity, or other characteristics.
- Section 505A should be included and have provisions that make inciting fear, alarm, or violence a crime.
Suggestions for Changes in IPC:
Viswanathan Committee 2019:
- It proposed inserting Sections 153 C (b) and Section 505 A in the IPC for incitement to commit an offence on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe.
- It proposed punishment of up to two years along with Rs. 5,000 fine.
Bezbaruah Committee 2014:
- It proposed amendment to Section 153 C IPC (promoting or attempting to promote acts prejudicial to human dignity), punishable by five years and fine or both and Section 509 A IPC (word, gesture or act intended to insult member of a particular race), punishable by three years or fine or both.
Way forward
- Subjects like hate speeches become a complex issue to deal with, in a country like India which is very diverse, as it was very difficult to differentiate between free and hate speech.
- There are many factors that should be considered while restraining speeches like strong opinions, offensive comments towards certain communities, the effect on values like dignity, liberty and equality.
- We all have to work together and communicate efficiently for our country to be a healthy place to live in.
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Freedom of Speech – Defamation, Sedition, etc.
Free speech of Ministers, restrictions and the opinion of the court
From UPSC perspective, the following things are important :
Prelims level: Freedom of speech and restrivtions
Mains level: Freedom of speech, political free speech, And Hate speech
Context
- A Constitution Bench of the Supreme Court on Tuesday unanimously and rightly ruled out any additional curbs on free speech by ministers. It said, like other citizens, they are guaranteed the right to freedom of expression under Article 19(1) (a), governed by the reasonable restrictions laid out in Article 19(2) and those are enough.
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What is the issue of freedom of speech to Ministers?
- Scope: Ministers and lawmakers enjoy the freedom of speech and expression under Article 19(1) of the Constitution as other citizens and additional restrictions cannot be imposed to curb their right to free speech.
- Restrictions: A five-judge Constitution bench held that curbs on free speech cannot extend beyond what is prescribed under Article 19(2) of the Constitution imposes reasonable restrictions and applies equally on all citizens.
What the court said?
- Rights are not residual privileges: Court said that the role of the court is to protect fundamental rights limited by lawful restrictions and not to protect restrictions and make the rights residual privileges.
- Distinction on government’s responsibility and remarks by individual minister: The ruling also made a valid distinction on the government’s vicarious responsibility for ill-judged or hateful remarks made by its individual ministers, the flow of stream in collective responsibility is from the Council of Ministers to the individual ministers. The flow is not on the reverse, namely from the individual ministers to the Council of Ministers.
- Clarification on the concept of collective responsibility: It is not possible to extend the concept of collective responsibility, it said, to “any and every statement orally made by a Minister outside the House of the People/Legislative Assembly”.
- Public functionaries should be more responsible while they speak: Even while agreeing with the majority ruling, however, it is possible to underline the concern articulated in the minority judgment over a hateful public discourse “hate speech, whatever its content may be, denies human beings the right to dignity”. And to agree with it when it speaks of the special duty of public functionaries and other persons of influence to be more responsible and restrained in their speech, to “understand and measure their words”.
What is ‘Hate Speech’?
- There is no specific legal definition of ‘hate speech’.
- The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like.
- Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.
- In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity
Brief Analysis: Hate speech by Ministers
- Problem is real but primarily political: The problem of hate speech by ministers and others belonging to the party in power is real, but it is primarily political.
- Solution is not in new law as, there are enough provisions to deal with it: The solution is not for the court to draw a new line, or even, as the minority judgment proposed, for Parliament to make another law. There are enough provisions in the statute book to deal with speech that promotes enmity and violence or results in cramping the freedoms of others.
- Legal provisions can be weaponised so what is needed is a political resolve: What is missing is the political resolve and will of governments to act on instances of hate speech, especially when they involve one of their own, and there are no legal shortcuts to make up for that absence. In fact, the same legal provisions that are designed to curb hate speech can be twisted and turned and weaponised by governments against citizens who dissent and disagree.
Conclusion
- The problem of hate speech by ministers and others associated with the party in power is real, but it is primarily political. The solution lies not in making new laws, but in individual responsibility and collective political resolve.
Mains question
Q. How do you understand hate speech? Do ministers and MLAs have freedom of speech? Discuss the recent court ruling on free speech restrictions on ministers.
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Freedom of Speech – Defamation, Sedition, etc.
Ministers’ Right to Free Speech and Issues
From UPSC perspective, the following things are important :
Prelims level: Freedom of speech and reasonable restrictions
Mains level: Political free speech
The Supreme Court has held that there is no reason to impose “additional restrictions” on the right to free speech of Ministers and the government is not vicariously liable for disparaging remarks made by them, even if the comments are traceable to state affairs or meant to protect the government.
Why are we discussing this?
- Many politicians make unwarranted statements and tender an apology in return.
- The PM or the CM does not have disciplinary control over the members of the Council of Ministers.
- In a country like ours, where there is a multi-party system and where coalition Governments are often formed, it is not possible at all times for the whip to control the politician’s behavior.
- A derogatory speech that closely resembles hate speech cannot fall within the ambit of the free speech right.
Do ministers and lawmakers have absolute freedom of speech?
- Scope: Ministers and lawmakers enjoy the freedom of speech and expression under Article 19(1) of the Constitution as other citizens and additional restrictions cannot be imposed to curb their right to free speech.
- Restrictions: A five-judge Constitution bench held that curbs on free speech cannot extend beyond what is prescribed under Article 19(2) of the Constitution imposes reasonable restrictions and applies equally on all citizens.
What is the case?
- The proceedings in the case began when the top court took cognisance of a controversial statement made by former UP minister in July 2016.
- He had allegedly termed a gang rape case as part of a “political conspiracy”. While he was let off with an unconditional apology, the Court agreed to examine the larger issue.
- In October 2017, a three-judge bench referred the matter to the constitution bench to decide on various aspects of the matter.
Key issues examined
- Free speech and sensitive issues: The top priority was to examine whether ministers, public functionaries and lawmakers can claim freedom of speech while expressing views on sensitive matters.
- Free speech and state matters: Another key aspect of the matter was whether a statement by a minister in relation to any affairs of the State or for the protection of government can be attributed vicariously to the government itself.
What does Article 19 say?
- Freedom: Article 19(1) (a) guarantees the freedom of speech and expression to all citizens. It is the first condition of liberty and plays an important role in forming public opinion.
- Restrictions: As per Article 19(2), restrictions can be imposed upon the freedom of speech and expression in the interests of:
- Sovereignty and integrity of India,
- Security of the state,
- Friendly relations with foreign states,
- Public order, decency or morality, or
- In relation to contempt of court,
- Defamation, or
- Incitement to an offense
What does the judgment say about free speech restrictions?
- Citizens had the right to petition the Court for violations of Article 19 (freedom of expression) and Article 21 (right to life).
- A statement made by the Minister, inconsistent with the rights of the citizens, may not by itself be actionable.
- It is not possible to extend this concept of collective responsibility to any and every statement orally made by a Minister outside the House of the People/Legislative Assembly.
Way forward
- Legal framework: A proper legal framework was necessary before taking action as a constitutional tort.
- Political will: Parliament could enact legislation or code to restrain citizens in general and public functionaries in particular from making disparaging or vitriolic remarks against fellow citizens.
- Code of conduct: Likewise, political parties should come up with a code of conduct to regulate and control the actions and speech of their functionaries and members.
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Freedom of Speech – Defamation, Sedition, etc.
Committee to Protect Journalists (CPJ) Report
From UPSC perspective, the following things are important :
Prelims level: CPJ Report
Mains level: Freedom of press
The number of journalists jailed around the world for practicing their profession has touched a record high, with 363 reporters deprived of their freedom as of December 1, 2022, according to the 2022 prison census released by the Committee to Protect Journalists (CPJ).
About Committee to Protect Journalists (CPJ)
- The CPJ is an American independent non-profit, non-governmental organization, based in New York City, New York, with correspondents around the world.
- CPJ promotes press freedom and defends the rights of journalists.
- It is often called as the “Journalism’s Red Cross.”
- Since late 1980s, the organization has been publishing an annual census of journalists killed or imprisoned in relation to their work.
Key highlights of CPJ report
- This year’s top five jailers of journalists were Iran, China, Myanmar, Turkey, and Belarus, respectively.
- New ‘fake news’ laws, criminal defamation, and abuse of judiciary are also tactics used to clamp down on press freedom.
- This year’s top five jailers of journalists were Iran, China, Myanmar, Turkey, and Belarus, respectively.
- These govt aimed to keep the lid on broiling discontent in a world disrupted by COVID-19 and the economic fallout from Russia’s war on Ukraine.
- In China, too, another ‘worst offender’, many imprisoned journalists were Uighurs from Xinjiang.
What did it say about India?
India continues to draw criticism over its treatment of the media, in particular its use of-
- Jammu and Kashmir Public Safety Act,
- Preventive detention law- to keep journalists behind bars after they were granted court-ordered bail in separate cases,
- Terrorism-related Unlawful Activities (Prevention) Act to investigate and charge the journalists.
Why does this report matter?
- Earlier this year, India has reached 150th position in the World Press Freedom Index, dropping further from its last year’s 142nd rank out of 180 countries.
- The safety of journalists is a grave concern in the Indian media landscape.
Conclusion
- The right occasion to deliberate about the much-needed reforms in the media ecosystem in the country is due.
- Establishing plurality in ownership, better legal frameworks to protect journalists, and steps to reduce the influence of vested interest groups in Media operations are the immediate steps required.
Back2Basics: Freedom of Press and Constitutional Provisions
- The Supreme Court in Romesh Thappar v. the State of Madras, 1950 observed that freedom of the press lay at the foundation of all democratic organisations.
- It is guaranteed under the freedom of speech and expression under Article 19, which deals with ‘Protection of certain rights regarding freedom of speech, etc.
- Freedom of the press is not expressly protected by the Indian legal system but it is impliedly protected under article 19(1) (a) of the constitution.
- The freedom of the press is also not absolute.
Reasonable restrictions
- A law could impose only those restrictions on the exercise of this right, it faces certain restrictions under article 19(2), which is as follows:
- Sovereignty and integrity of India
- Security of the State,
- Friendly relations with foreign States
- Public order, decency or morality
- Contempt of court
- Defamation
- Incitement to an offence
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Freedom of Speech – Defamation, Sedition, etc.
What are Personality Rights?
From UPSC perspective, the following things are important :
Prelims level: Personality Rights
Mains level: Read the attached story
The Delhi High Court recently passed an interim order to prevent the unlawful use of a megastar’s name, image and voice.
What did the HC say?
- The court, through its order, restrained persons at large from infringing the personality rights of the actor.
Why are we discussing this?
- Celebrities are protected from commercial misuse of their name and personality.
- However, there have been instances where the consumers are misled owing to false advertisements or endorsements by such personalities.
- Due to such cases, the Ministry of Consumer Affairs has made a notification in 2022 to keep a check on misleading adverts and endorsements of consumer products by imposing a penalty on the endorser.
What are Personality Rights?
- Personality rights refer to the right of a person to protect his/her personality under the right to privacy or property.
- These rights are important to celebrities as their names, photographs or even voices can easily be misused in various advertisements by different companies to boost their sales.
- Therefore, it is necessary for renowned personalities/celebrities to register their names to save their personality rights.
- A large list of unique personal attributes contribute to the making of a celebrity.
- All of these attributes need to be protected, such as name, nickname, stage name, picture, likeness, image and any identifiable personal property, such as a distinctive race car.
Correlation with publicity rights
- Personality rights are different from publicity rights.
- Publicity rights are governed by statutes like the Trade marks Act 1999 and the Copyright Act 1957.
Types of personality rights
- Personality rights consist of two types of rights-
- Right of publicity: It is the right to keep one’s image and likeness from being commercially exploited without permission or contractual compensation, which is similar (but not identical) to the use of a trademark;
- Right to privacy: It is the right to not have one’s personality represented publicly without permission.
- However, under common law jurisdictions, publicity rights fall into the realm of the ‘tort of passing off’.
- Passing off takes place when someone intentionally or unintentionally passes off their goods or services as those belonging to another party.
- Often, this type of misrepresentation damages the goodwill of a person or business, resulting in financial or reputational damage.
Does the use of a name on the internet affect personality rights?
- The Delhi High Court in 2011 made an observation in the case of Arun Jaitley vs Network Solutions Private Limited and Ors.
- In this case, former finance minister filed a suit seeking permanent injunction against the defendants from misuse and immediate transfer of the domain name www.arunjaitley.com.
- The Court stated that the popularity or fame of individual will be no different on the internet than in reality.
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Freedom of Speech – Defamation, Sedition, etc.
Hate speech
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Free speech vs. Hate speech
Former Supreme Court Judge Rohinton Fali Nariman has said civil suits against hate speech leading to the award of punitive damages should be taken up by courts.
What did the ex-Judge say?
- He described the Fundamental Duty of fraternity (Article 51A(5)) as the only Constitutional method of assuring the dignity of every citizen and the unity and integrity of the nation.
- The cardinal principle of fraternity prescribed that every citizen honoured the other citizen in the spirit of brotherhood, transcending religious, sectarian, and other tendencies.
- He opined that civil suits like defamation being dealt with fines would be more efficient in curbing hate speeches against individuals.
Article 51A(5): Promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities and to renounce practices derogatory to the dignity of women.
What is ‘Hate Speech?
- There is no specific legal definition of ‘hate speech’.
- The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like …
- Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”
- In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.
How is it treated in Indian law?
- Provisions in law criminalize speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.
- Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.
[I] Section 153A:
- Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.
[II] Section 505:
- 505(1): Statements conducing to public mischief– The statement, publication, report or rumour that is penalized under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquillity. This attracts a jail term of up to three years.
- 505(2): It is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.
- 505(3): Same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.
Why curb hate speeches?
- Creates social divide: Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
- Threat to peaceful co-existence: The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.
Issues in regulating hate speech
- Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
- Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
- Legal complications: An over-reliance on legal instruments to solve fundamental social and political problems often backfires.
Way forward
- Subjects like hate speeches become a complex issue to deal with, in a country like India which is very diverse, as it was very difficult to differentiate between free and hate speech.
- There are many factors that should be considered while restraining speeches like strong opinions, offensive comments towards certain communities, the effect on values like dignity, liberty and equality.
- We all have to work together and communicate efficiently for our country to be a healthy place to live in.
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Freedom of Speech – Defamation, Sedition, etc.
SC admits plea challenging first amendment to Constitution
From UPSC perspective, the following things are important :
Prelims level: 1st Constitutional Amendment
Mains level: Sedition law and Free speech
The Supreme Court has agreed to examine a PIL challenging changes made to the right to freedom of speech and expression by the first amendment to the Constitution in 1951.
Why in news?
- The fresh petition argues that the 1st Constitutional Amendment damages the basic structure doctrine.
What was the first amendment?
- The Constitution (First Amendment) Act, 1951 made several changes to the Fundamental Rights provisions of the Indian constitution.
- It provided means to:
- Restrict freedom of speech and expression,
- Validation of zamindari abolition laws, and
- Clarified that the right to equality does not bar the enactment of laws which provide “special consideration” for weaker sections of society
- This Amendment set the precedent of amending the Constitution to overcome judicial judgements impeding fulfilment of the government’s perceived responsibilities.
Why in news now?
- In his plea, the petitioner said Section 3(1) of the 1951 Amending Act substituted original Clause (2) of Article 19.
- This clause 19(2) deals with reasonable restrictions on the freedom of speech and expression guaranteed under Article 19(1)(a).
(a) Objectionable insertions
- It which contained two objectionable insertions allowing restrictions also:
- In the interest of public order and
- In relation to incitement to an offence
(b) Crucial omissions
- The new Clause (2) also omitted the expression “tends to overthrow the State” as appearing in the original Clause (2).
- Section 3 (2) of the amending Act effected validation of certain laws even if they took away or abridged the right to freedom of speech and expression, the petitioner said.
Issues created by Clause (2) of Article 19
Ans. It protects certain arbitrary sections of IPC from constitutionality check
- The petition contended that these two insertions protect certain IPC sections such as from the vice of unconstitutionality –
- Sections 124A: Sedition
- Section 153A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. prejudicial to maintenance of harmony
- Section 295A: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs and
- Section 505: Statements conducing to public mischief
- The questionable expressions inserted unduly abridge the fundamental right under Article 19 (1)(a) { freedom of speech and expression}.
How it sought to trivialize national security?
- The amendment also neglects national security by dropping the expression ‘tends to overthrow the State’.
- The omission of this expression raises grave concern in the context of the dangers posed to the concept of secular democratic republic by radicalism, terrorism and religious fundamentalism.
- This could either be radicalism or right-wing extremism.
How did the petition invoke basic structure doctrine here?
- The petition argued that undue abridgement does not advance or sub serve any constitutional objectives.
- They appear more to damages inter alia democracy and republicanism and supremacy of the Constitution.
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Freedom of Speech – Defamation, Sedition, etc.
What is the News Broadcasting & Digital Standards Authority (NBDSA)?
From UPSC perspective, the following things are important :
Prelims level: NBDSA
Mains level: Not Much
The NBDSA has fined the news channel for turning a news debate on hijab into a “communal issue” and not adhering to guidelines.
What is the News Broadcasting & Digital Standards Authority (NBDSA)?
- The NBDSA is a self-regulatory agency set up by news and digital broadcasters.
- It is an independent body set up by the News Broadcasters & Digital Association (NBDA), which serves as a representative of private television news, current affairs and digital broadcasters.
- It describes itself as “the collective voice of the news, current affairs and digital broadcasters in India.”
- Funded entirely by its members, the NBDA has 26 news and current affairs broadcasters (comprising 119 news and current affairs channels) as its members.
- Various senior members of Indian media organisations serve on its Board of Directors.
Composition of the NBDSA
- The body includes a Chairperson who is to be an eminent jurist, and other members such as news editors, and those experienced in the field of law, education, literature, public administration, etc.
- They are to be nominated by a majority of the Board.
- Former Supreme Court judge and jurist AK Sikri is currently serving as the Chairperson.
Functioning of NBDSA
- Within this structure, it lays-down and foster high standards, ethics and practices in news broadcasting, including entertaining and deciding complaints against or in respect of broadcasters.
- These standards mention a focus on objectivity, impartiality, maintaining discretion when reporting on crime against women and children, not endangering national security, etc.
Powers and authorities
- NBDSA may initiate proceedings on its own and issue notice or take action in respect to any matter which falls within its regulations.
- This can also be through complaints referred to the Authority by the Ministry of Information & Broadcasting or any other governmental body, or by anyone else via its website.
- A “two-tier” procedure is in place for redressing grievances, where any person aggrieved by the content of any broadcast is required to first make a complaint to the concerned broadcaster and then the Authority if dissatisfied.
Why was the channel fined?
- The NBDSA held that the programme was in violation of the principles relating to impartiality, neutrality, fairness and good taste and decency.
- It said that it did not have any problem with the subject but with the narrative of the debate.
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Freedom of Speech – Defamation, Sedition, etc.
Take immediate action against hate speech: SC
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Hate speech and spread of communal hatred
The Supreme Court has expressed concern over growing incidents of hate speeches in the country and directed the governments and police authorities to take suo motu action in such cases without waiting for lodging of formal complaints.
Why in news?
- There has been rising incidents of hate speeches targeting a particular community in India.
What is ‘Hate Speech’?
- There is no specific legal definition of ‘hate speech’.
- The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like …
- Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”
- In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.
How is it treated in Indian law?
- Provisions in law criminalize speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.
- Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.
[I] Section 153A:
- Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.
[II] Section 505:
- 505(1): Statements conducing to public mischief– The statement, publication, report or rumour that is penalized under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquillity. This attracts a jail term of up to three years.
- 505(2): It is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.
- 505(3): Same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.
Why curb hate speeches?
- Creates social divide: Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
- Threat to peaceful co-existence: The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.
Issues in regulating hate speech
- Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
- Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
- Legal complications: An over-reliance on legal instruments to solve fundamentally social and political problems often backfires.
Way forward
- Subjects like hate speeches become a complex issue to deal with, in a country like India which is very diverse, as it was very difficult to differentiate between free and hate speech.
- There are many factors that should be considered while restraining speeches like strong opinions, offensive comments towards certain communities, the effect on values like dignity, liberty and equality.
- We all have to work together and communicate efficiently for our country to be a healthy place to live in.
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Freedom of Speech – Defamation, Sedition, etc.
Regulating online speech
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Regulation of Online speech,freedom of speech,Public awareness
Context
- The Ministry of Electronics and Information Technology (Meity) has mooted two proposals for governance of online speech government appointed grievance appellate committees (GAC) and the industry self-regulatory body (SRB) seek to preclude this contest in favour of a unilateral government and industry agenda.
What is an online speech?
- A recorded online speech is delivered, recorded, and then uploaded to the Internet for later viewing. Examples are TED Talks and presentations in online or blended speech classes.
- Such speech are recorded or sometimes made in real time using various social media platforms.
How unregulated online speech is becoming dangerous day by day?
- Gendered disinformation and harassment campaigns: Impacting the mental health, job performance, and if and how they engage with online spaces.
- GLAAD’s 2021 Social Media Safety Index says: 64% of LGBTQ social media users reported experiencing harassment and hate speech, including on social media platforms such as Facebook, Twitter, YouTube, Instagram, and TikTok.
- Contributing to communal violence: In countries like India and Sri Lanka, failure to remove and prevent the amplification of harmful content can contribute to profound offline consequences, including violence and death.
What are the proposals for the regulation of online speech?
- Setting up Grievance appellate committees (GAC): The GACs, as per the draft issued by the Ministry of Electronics and Information Technology (Meity), will be constituted by the central government and will serve as an appellate body against decisions of various social media platforms.
- Appointing Self-regulatory body by social Media platforms(SRB)?: As the name suggests, industries such as twitter, meta etc will appoint their own personnel and constitute the self-regulatory body to hear the grievances against the social media posts.
What are the Criticism over GAC and SRB?
- Lack of substantive framework: Not only has the government not laid down a substantive policy with objectively defined contours of forbidden speech, the government wants the right to apply this highly subjective criteria on individual pieces of content and/or users.
- Unreasonable removal of content: It is notable that the government has already arrogated this right and routinely issues take down orders (without providing rationale) to social media platforms to take down or block content with minimal pushback from platforms.
- Serving the Governments agenda: However, the national security, public order logic of takedowns does not apply to reinstatement of content/users proactively blocked by the platforms and it is likely that an additional purpose of the GACs is to provide an institutional avenue for the ruling government machinery to get a set of aligned accounts/content reinstated instead of just takedowns.
- Such regulations are said to be Non-democratic: It is evident that the GAC doesn’t meet even minimal standards of democratic legitimacy and should be scrapped. The industry SRB proposal too lack democratic legitimacy.
- Profit before public interest: Platforms have repeatedly shown themselves to be driven by profit motives, which are often at odds with public interest. It is thus likely that such a platform-led body will try and maximise the interests of the industry and individual platforms as opposed to the interests of the Indian people.
- It will increase Government’s unrestrained powers: Notwithstanding Twitter’s plea in Karnataka High Court against Centre’s “disproportionate use of power” to issue “overbroad and arbitrary” content-blocking orders, the track record of platforms in India of resisting government pressure has been very poor.
- For example recent Twitter episode: For instance, a former safety head with Twitter reportedly told US regulators that Twitter put a government agent on its payroll under duress.
- High Chances of Government’s pressure: The SRB may act as a rubber stamp providing false legitimacy for covert government pressure while the binding nature of SRB orders will make it easier for the government to exercise pressure on a single lever to ensure compliance across all platforms.
- Lack of consensus in SRB: The other real possibility is that such a body will be a non-starter, wracked by internal dissensions or non-compliance and thus pave the way for the government GAC. This possibility is indicated by the divergent views of the constituent platforms.
What are the Suggestions?
- Relooking the proposals: It is evident that neither of the two proposals meet the minimum standards of democratic legitimacy and need to be rethought.
- Follow the democratic way: Given the centrality of free speech in a democracy, no government or private body can have unmitigated right to make decisions regarding the contours of acceptable speech. The argument that an elected government has earned the executive right to determine standards of speech like other policy decisions is fallacious because speech is the only democratic way to contest the government itself.
- Least government interference: The governance of speech, including setting standards and implementation, must thus sit squarely outside the ambit of government.
- Independent body answerable to parliament: This can be achieved through a statutory regulator answerable to Parliament.
- Standard operating procedure to remove content: In the meantime, there has to be transparency in the manner content moderation decisions are taken, including the takedown orders issued by the government.
Conclusion
- The current proposals are preoccupied with policing individual pieces of content whereas the impact of social media platforms on our information ecosystems is fundamental. Social media platforms now play an increasingly interventionist role in amplifying certain voices and our public debate must move forward to review structural issues affecting information ecosystems.
Mains Question
Q.What are the perils of unrestrained online speech? Critically analyse the recent proposals by government to regulate the free speech.
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Freedom of Speech – Defamation, Sedition, etc.
Section 66A of IT Act
From UPSC perspective, the following things are important :
Prelims level: Article 66A
Mains level: Read the attached story
The Supreme Court has ordered States and their police forces to stop prosecuting free speech on social media under Section 66A of the Information Technology Act which was declared unconstitutional by the court in a judgment seven years ago.
What did Section 66A do?
- Introduced in 2008, the amendment to the IT Act, 2000, gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.
- Section 66A empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc.
- It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.
- In 2015, the apex court struck down the law in the landmark case Shreya Singhal v. Union of India, calling it “open-ended and unconstitutionally vague”, and thus expanded the contours of free speech to the Internet.
Why was the law criticized?
- The problem was with the vagueness about what is “offensive”.
- The word having a very wide connotation was open to distinctive, varied interpretations.
- It was seen as subjective, and what might have been innocuous for one person, could lead to a complaint from someone else and, consequently, an arrest arbitrarily.
So, how did 66A come under the Supreme Court’s scrutiny?
- The first petition came up in the court following the arrest of two girls in Maharashtra by Thane Police in November 2012 over a Facebook post.
- The girls had made comments on the shutdown of Mumbai for the funeral of a political leader.
- The arrests triggered outrage from all quarters over the manner in which the cyber law was used.
- The petition was filed by Shreya Singhal, then a 21-year-old law student.
What were the grounds for the challenge?
- The objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media.
- The petitioners argued that Section 66A came with extremely wide parameters, which allowed whimsical interpretations by law enforcement agencies.
- Most of the terms used in the section had not been specifically defined under the Act.
- The law was a potential tool to gag legitimate free speech online and to curtail freedom of speech and expression guaranteed under the Constitution, going far beyond the ambit of “reasonable restrictions” on that freedom.
What did the Supreme Court decide?
- In March 2015, a bench of Justices J. Chelameswar and R.F. Nariman ruled in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).”
- Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.
- The decision was considered a landmark judicial pushback against state encroachment on the freedom of speech and expression.
- The bench also read down Section 79– now at the centre of the ongoing “intermediary liability” battle between the Centre and micro-blogging platform Twitter– defining key rules for the relationship between governments and commercial internet platforms.
- Section 79 says that any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.
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Freedom of Speech – Defamation, Sedition, etc.
India @75 –Relooking our democracy
From UPSC perspective, the following things are important :
Prelims level: NA
Mains level: Read the attached story
Context
- As we celebrate the nation @75 , we must also reflect on the mixed nature of our democracy
Definition of democracy
- “Government of the people, by the people and for the people” were the words used by Abraham Lincoln in the year 1863 while talking about democracy.
Purpose of democracy
- Cornerstones of democracy include freedom of assembly, association, property rights, freedom of religion and speech, inclusiveness and equality, citizenship, consent of the governed, voting rights, freedom from unwarranted governmental deprivation of the right to life and liberty, and minority rights.
Background
- India is a parliamentary democratic secular republic in which the president of India is the head of state & first citizen of India and the prime minister of India is the head of government.
- It is based on the federal structure of government, although the word is not used in the Constitution itself.
How it has performed
(1) Political front
- India is the world’s the largest democracy proved success in accommodation of group and regional demands in a complex, quasi-federal, polity.
- During the first general election in the 1951 India had 54 political parties and now it has grown up to 464 in the 2014 general election as an evident of deepening of the democratic process.
- In the first General election 1951, 173 million citizens were given right to vote.
- In the 16th general election in 2014, the size of the electorate had increased to 814 million.
(2) Social front
- The democratic process has brought about a shift of political power from the middle and higher castes and classes of urban society to backward classes who are now the politically most influential ones in the country.
- They have won reservations for themselves in legislatures and government services as were accorded to the Scheduled Castes and Scheduled Tribes after independence through Constitutional provisions.
(3) Economic Front
- These include strategic affairs and security, politico-legal democratic governance as well as society and economy.
- India has been able to emerge as a regional power in Asia and super power in south Asia backed by its economic, military and nuclear capabilities.
Contradictions in democracy
- Performance of Bureaucracy: Dishonest officials to protect themselves from the consequences of their wrong-doings have largely exploited constitutional protection for the Services under Article 311.
- Administration of Justice: Judicial system has not been able to meet even the modest expectations of the society. Its delays and costs are frustrating, its processes slow and uncertain. People are pushed to seek recourse to Extra-legal methods for relief. Trial system both on the civil and criminal side has utterly broken down.
- Areas of Concern: There is a fundamental breach of the constitutional faith on the part of the Governments and their method of governance lies in the neglect of the people who are the ultimate source of all political authority.
- Regionalism: Issues of national integrity and security have not received adequate and thoughtful attention. Mechanisms for the assessment of early warning symptoms of social unrest are absent.
- Corruption: The increasing instability of elected governments is attributable to opportunistic politics and unprincipled defections.
Some positive suggestions to government
- Feedback: The Government should hear criticism rather than rejecting it outrightly. Suggestions on eroding democratic values need a thoughtful, and respectful response.
- Freedom of press: The press and the judiciary which are considered the pillars of India’s Democracy, require to be independent of any executive interference.
- Opposition: strong democracy requires strong opposition. Without an alternative choice, the very objective of election to provide a check on arbitrary power gets defeated.
Way forward
- The institutionalization of constitutional democracy has helped the people of India realize the importance of democracy and inculcate democratic sensibilities among them.
- At the same time, it is important that all the government organs work in harmony to uphold the trust people of the country have held in them and ensure the objectives of true democracy.
Mains question
Q.We are celebrating Azadi ka amrit mahotsav India @75, trace the journey of democracy critically by providing some suggestions for robust democracy.
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Freedom of Speech – Defamation, Sedition, etc.
Role of media in fair trial
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Issue of media trials
Context
- In an ongoing case, the Peoples’ Union for Civil Liberties asked the Supreme Court to issue guidelines to regulate media briefings by the police to ensure fair trial.
- This has left the judiciary with no choice but to deliberate on binding directives to the police.
What is Media Trial?
- Media Trial is when various newspapers, magazines, television channels, social media websites interpret facts of a particular case and present them in front of the general public.
- In India, we have witnessed media trials in many cases where before the verdict of the Indian judiciary, the media channels frame an accused in such a manner that the general public believes him/her to be the person guilty of such offence.
- Media Trial is not prohibited in India, but it influences the views and opinions of the general public as well as judges and lawyers.
Issue of media trial
[A] For Police
(1) Investigation fouling
- In criminal cases that attract the most sensationalist media coverage, media attention is often drawn toward investigation and early trial stages.
- This makes the police a crucial source for the media and communication between the two institutions is often a starting point of the troubles of media trials.
(2) Unregulated divulgence of case details
- Leakage of information by police force and disproportionate reliance on this information by the media results in a public stripping of the rights that typically accompany a fair trial.
(3) Blow to procedural justice
- Most police departments do not have dedicated media cells, making officials of all levels authoritative sources of information and blurring the boundaries between an official and informal police account of events.
- As a result, the evidence-based narrative of criminal cases presented by the police to a court varies significantly from the account provided to the news media.
- This is detrimental for the persons involved in the case, and the justice system as a whole.
[B] For Judiciary
(1) Violation of the rights of litigants
- Reportage of this nature violates the presumption of innocence and the right to dignity and the privacy of suspects, the accused, victims, witnesses and persons closely related to them.
- They often face social ostracization and difficulties in retaining employment, making them vulnerable to crime and exploitation.
(2) Disharmony
- Police narratives are sometimes designed to achieve political goals, and the media’s ready acceptance of these narratives does little to prevent their insidious effects.
- Given the media’s ability to shape political opinion, law enforcement agencies are sometimes under pressure to selectively reveal certain facets of the investigation or to mischaracterise incidents as communal or systemic.
What should be the role of Media?
- Contextualization: Problematic news coverage of criminal cases arises when reporters absolve themselves of any duty to contextualise information revealed by the police.
- Verification of the facts: Media ethics extend beyond verification of facts to check its Authencity.
- Create public awareness: Apart from making sure that police narratives are accurate before making them public, reporters bear the burden of translating the significance of police versions in a criminal trial.
- Prevent mistrust in institutions: It is meant to protect, and contributes considerably to the public apprehension and mistrust in the system.
Why is news media being hyperactive?
- We should remember that the new media as an institution is NOT a not-for-profit organization.
- The negligence can be attributed to the changing nature of the newsroom , responding to deadlines externally set by competing social media accounts that now qualify as news.
Court directives and legal provisions
Ans: The Romila Thapar vs Union of India, (2018) Case
- Courts have repeatedly directed law enforcement authorities not to reveal details of their investigations, especially the personal details of the accused, before trial is complete.
- It calls for states to enact their own laws based upon social construct.
- The Ministry of Home Affairs issued office memorandum outlining a media policy over a decade ago, but this is of limited value given that ‘Police’ is an entry in the State List and thus falls primarily within the jurisdiction of State governments.
Way forward
- Uniform regulation: Government regulation is not uniform for print and television media and enforcement of these regulations, where it occurs, is slow.
- Prevent overt regulation: In any event, Government regulation of the media is problematic and likely to increase politicization of the press.
- Strengthening self-regulation: Self-regulation set-ups such as the National Broadcasting Standards Authority and Indian Broadcasting Foundation are membership-based and easily avoided by simply withdrawing from the group.
- Reconcile the public faith: It is now in the immediate interest of the media and the general interest of free press, that media institutions look inward to find an answer to what is essentially an ethical crisis.
Conclusion
- The media’s immense power to shape narratives regarding public conceptions of justice makes it a close associate of the justice system, bringing with it a responsibility to uphold the basic principles of our justice system.
- The media should feel subject to the obligation to do its part in aiding mechanisms that aim to preserve these principles.
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Freedom of Speech – Defamation, Sedition, etc.
Fundamental Duties
From UPSC perspective, the following things are important :
Prelims level: Fundamental Duties
Mains level: Read the attached story
The Supreme Court has allowed the Centre’s request for two months’ time to file a reply to a petition seeking the enforcement of fundamental duties of citizens, including patriotism and unity of nation, through “comprehensive, and well-defined laws”.
Why in news?
- The need to enforce fundamental duties arises due to new illegal trend of protest by protesters in the garb of freedom of speech and expression.
- Vandalism, blocking of road and rail routes in order to compel the government to meet their demands is a sheer violation of the FDs which are generally not enforceable.
What are Fundamental Duties?
- The fundamental duties of citizens were added to the constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee.
- It basically imply the moral obligations of all citizens of a country and today, there are 11 fundamental duties in India, which are written in Part IV-A of the Constitution, to promote patriotism and strengthen the unity of India.
- The FDs obligate all citizens to respect the national symbols of India, including the constitution, to cherish its heritage, preserve its composite culture and assist in its defence.
- They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life.
Judicial interpretation of FDs
- The Supreme Court has held that FDs are not enforceable in any Court of Law.
- It ruled that these fundamental duties can also help the court to decide the constitutionality of a law passed by the legislature.
- There is a reference to such duties in international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, and Article 51A brings the Indian constitution into conformity with these treaties.
Total FDs
- Originally ten in number, the fundamental duties were increased to eleven by the 86th Amendment in 2002.
The 10 fundamental duties are as follows:
- To oblige with the Indian Constitution and respect the National Anthem and Flag
- To cherish and follow the noble ideas that inspired the national struggle for freedom
- To protect the integrity, sovereignty, and unity of India
- To defend the country and perform national services if and when the country requires
- To promote the spirit of harmony and brotherhood amongst all the people of India and renounce any practices that are derogatory to women
- To cherish and preserve the rich national heritage of our composite culture
- To protect and improve the natural environment including lakes, wildlife, rivers, forests, etc.
- To develop scientific temper, humanism, and spirit of inquiry
- To safeguard all public property
- To strive towards excellence in all genres of individual and collective activities
The 11th fundamental duty which was added to this list is:
- To provide opportunities for education to children between 6-14 years of age, and duty as parents to ensure that such opportunities are being awarded to their child. (86th Amendment, 2002)
Try this PYQ:
Which of the following is/are among the Fundamental Duties of citizens laid down in the Indian Constitution?
- To preserve the rich heritage of our composite culture
- To protect the weaker sections from social injustice
- To develop the scientific temper and spirit of inquiry
- To strive towards excellence in all spheres of individual and collective activity.
Select the correct answer using the codes given below:
(a) 1 and 2 only
(b) Only 2
(c) 1, 3 and 4 only
(d) 1, 2, 3 and 4
Post your answers here.
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Freedom of Speech – Defamation, Sedition, etc.
IPC Sec 295A: Dealing with Hate Speech and Blasphemy
From UPSC perspective, the following things are important :
Prelims level: Section 295A
Mains level: Hate speech and blasphemy
The debate surrounding the comments by some political spokespersons has put the spotlight on the IPC Sec 295A which deals with criticism of or insult to religion.
What is the news?
- India does not have a formal legal framework for dealing with hate speech.
- However, a cluster of provisions, loosely termed hate speech laws, are invoked.
- There are primarily some laws to deal with offences against religions.
What is Section 295A?
- Section 295A, define the contours of free speech and its limitations with respect to offences relating to religion.
- It prescribes punishment for deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
- It calls for imprisonment of either description for a term which may extend to [three years], or with fine, or with both.
- It has been invoked on a wide range of issues from penalising political satire and seeking bans on or withdrawal of books to even political critique on social media.
Chapters to penalise religious offences
Section 295A is one of the key provisions in the IPC chapter to penalise religious offences. The same chapter includes offences to penalise:
- Damage or defilement of a place of worship with intent to insult the religion (Section 295)
- Trespassing in a place of sepulture (burial) (Section 297)
- Uttering, words, etc, with deliberate intent to wound the religious feelings of any person (Section 298) and
- Disturbing a religious assembly (Section 296)
Origins of the law
- Colonial origins of the hate speech provisions are often criticised for the assumption that Indians were susceptible to religious excitement.
- Section 295A was brought in 1927.
- The antecedents of Section 295A lie in the communally charged atmosphere of North India in the 1920s.
- The amendment was a fallout of an acquittal under Section 153A of the IPC by the Lahore High Court in 1927 in Rajpaul v Emperor, popularly known as the Rangila Rasool case.
Frequency of use
- The state often invokes Section 295A along with 153A of the IPC, which penalises promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.
- It acts prejudicial to maintenance of harmony and Section 505 of the IPC that punishes statements conducing to public mischief.
What about online hate speech?
- In cases where such speech is online, Section 66A of the Information Technology Act was invoked.
- However, in a landmark verdict in 2015, the Supreme Court struck down Section 66A as unconstitutional on the ground that the provision was “vague” and a “violation of free speech”.
- However, the provision continues to be invoked.
Issues with such laws
- The broad, vague terms in the laws are often invoked in its misuse.
- Lower conviction rates for these provisions indicate that the process — where a police officer can arrest without a warrant — is often the punishment.
- Critics have pointed out that these laws are intended for the state to step in and restore “public order” rather than protect free speech.
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Freedom of Speech – Defamation, Sedition, etc.
Sedition Law
From UPSC perspective, the following things are important :
Prelims level: Section 124A IPC
Mains level: Sedition law and Free speech
The Supreme Court suspended pending criminal trials and court proceedings under Section 124A (sedition) of the Indian Penal Code, while allowing the Union of India to reconsider the British-era law.
What did the SC say?
- All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of the IPC be kept in temporary suspension.
- The court also restrained centre and states from registering FIRs, continuing investigations or take coercive measures under Section 124A.
What is the Sedition Law?
- Section 124A of the Indian Penal Code lays down the punishment for sedition. The IPC was enacted in 1860, under the British Raj.
- The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
- Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
- Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.
Do you know?
Queen-Empress v. Bal Gangadhar Tilak (1897) was the first case in which Section 124A was defined and applied. Again in 1908, when Tilak was tried under same section, then young barrister and a staunch protagonist Mohammed Ali Jinnah defended Tilak.
What is Sedition?
- The Section 124A defines sedition as:
An offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.
- Disaffection includes disloyalty and all feelings of enmity.
- However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
- Sedition is a non-bailable offense.
- Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.
Sedition as a cognizable offense
- Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
- In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.
Is it constitutionally valid?
- Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
- Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
- Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
- Limited use: At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
- Strong criticism doesn’t amount to sedition: Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.
Why the controversy now?
- Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
- Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
- Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
- Irrelevance: Many of them have also been detained under the National Security Act and UAPA.
What is being debated about it?
- Demand for its scrapping: Liberals and rights activists have been demanding the scrapping of Section 124A.
- Provision is outdated: It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
- Various calls for its reconsideration: The Law Commission has also called for a reconsideration of the section.
- Tyranny of the law: It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
- Doctrine of severability: Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.
Need for such law
- There are some tendencies exist even today who wish to overthrow the state apparatus and constitutional scheme of India.
- It falls on the judiciary to protect Articles 19 and Article 21 of the Constitution.
- Undue exercise of free speech has led to overture of ordinary dissent into an anti-national insurrection or uprising.
- There are areas in the country that face hostile activities and insurgencies created by rebel groups, like the Maoists.
- There must be restrictions on expressing unnecessary contempt or ridiculing of the Government beyond certain limits.
Way forward
- India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy.
- The sedition law should not be abolished as some measures are needed to check communal violence & insurgency activities like Naxals.
- The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
- Section 124A should not be misused as a tool to curb free speech.
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Freedom of Speech – Defamation, Sedition, etc.
The sedition law must go
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Section 124A of IPC
Context
By order dated May 11, 2022, a Bench presided over by the Chief Justice of India, has directed that the petitions challenging the Section 124A be listed for final determination in the third week of July 2022; and that in the meantime suspend the use of Section 124A IPC.
Historical background of Section 124A
- With effect from 1870, (as amended in 1955), Section 124A of the Penal Code read:
“Whoever by words, spoken or written, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection, towards the Government established by law in India shall be punished with imprisonment for life…”.
- “Sedition” is the vaguest of all offences known to the criminal law.
- In colonial times, it was defined expansively in order to uphold the majesty of British power in India.
- Before 1950, there were several Court decisions in operation on Section 124A; amongst them was Bal Gangadhar Tilak’s case (1897).
- Absence of affection: In Bal Gangadhar Tilak’s case the Privy Council declined to grant leave to appeal, affirming that “disaffection” only meant “absence of affection in any degree towards the British rule or its administration or representatives”, and that exciting of mutiny or rebellion or actual disturbance of any sort was “absolutely immaterial”.
- With the establishment of a Federal Court by the Government of India Act, 1935, in Niharendu Dutt Majumdar And Ors. vs Emperor the Federal Court held that if the language of Section 124A were to be read literally “it would make a surprising number of persons in India guilty of sedition and that no one, however, supposes that it is to be read in this literal sense”
- However, in 1947 it was precisely in this literal sense that the interpretation of Section 124A was reiterated by a Bench of five judges of the Privy Council (AIR 1947 P.C. 82) in which it was declared that: “If the Federal Court had given their attention to Tilak’s case (1897) they should have recognised it as an authority… by which they were bound”.
- With the advent of the Constitution of India on January 26, 1950, this interpretation of Section 124A became “the law in force immediately before the commencement of the Constitution”.
Section 124A after 1950
- Article 372: It stated that all laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority.
- Protected due to Article 19(2): In 1962, in criminal appeals arising from the states of Bihar and Uttar Pradesh, a Constitution Bench of the Supreme Court held that though Section 124A “clearly violated” the fundamental right to freedom of speech and expression in Article 19(1)(a), it was not unconstitutional only because it was protected from challenge by the words “in the interests of public order” in Article 19(2).
Conclusion
This background has now become pertinent and relevant, because in a fresh batch of writ petitions filed in 2021, the constitutionality of Section 124A (IPC) has been once again challenged in the Supreme Court.
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Freedom of Speech – Defamation, Sedition, etc.
On Section 124A Supreme Court has aligned itself with the collective conscience
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- The SC aligning with collective conscience of India
Context
The Supreme Court’s seminal intervention in a batch of petitions challenging the constitutional validity of section 124A of the Indian Penal Code is a watershed moment in the progressive expansion of human rights jurisprudence.
Abuse of sedition law
- The slapping of sedition charges against political opponents and others in Maharashtra, Punjab, Rajasthan, Chhattisgarh, Tamil Nadu, Andhra Pradesh and Madhya Pradesh have confirmed that the abuse of the sedition law is no longer an aberration.
- It has become a norm that has hollowed out the constitutional guarantee of fundamental rights and exposed individuals to the rigour of draconian laws unjustly invoked, outraging national sensitivities as never before.
Significance of the move
- In what is seen as a first in judicial history, the Supreme Court has virtually rendered redundant the provision of a criminal law without expressly declaring it as unconstitutional.
- In an example of judicial statecraft, the court has shielded individuals against a harsh law without trenching on Parliament’s legislative remit or the executive’s command over policy decisions.
- Plenary jurisdiction: Exercising plenary jurisdiction, the Supreme Court is expected to see through its suggestions/orders to the government, particularly when these concern the non-negotiable fundamental rights of citizens.
- Suggestive jurisdiction: As an organ of the state, the Supreme Court’s suggestive jurisdiction is clearly in accord with its declared law (Nagaraj, 2006) that the state (of which the court is an integral constituent), is under a duty not only to protect individual rights but is also obliged to facilitate the same.
- Validating the nations role: The court-inspired initiatives would also validate the nation’s preeminent role in the shaping of a new world order.
Implications of the law
- Nudging the government towards anti-lynching law: As with the sedition law, it can nudge the government to enact an anti-lynching humanitarian law as suggested by it and a comprehensive law against custodial torture.
- Law against custodial torture: The absence of an anti-custodial torture law, a glaring gap in the architecture of the criminal justice system, is inexplicable considering the command of Article 21, recommendations of the Select Committee of Rajya Sabha (2010), the Law Commission of India (2017) and the Human Rights Commission and the judgments of the Supreme Court (Puttaswamy, 2017; Jeeja Ghosh, 2016; and Shabnam, 2015).
- Implications for the UAPA: It is expected likewise from the court to intervene suitably and read down the UAPA and other criminal laws that have been repeatedly misused to trample upon the civil liberties and rights of the people.
Conclusion
This is indeed the moment to seize, as the government reviews the nation’s legal structures. The initiatives suggested above are in aid of democracy anchored in the inviolability of human rights and would enhance India’s soft power in our engagement with the international community.
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Freedom of Speech – Defamation, Sedition, etc.
In abeyance of Section 124A, a provisional relief
From UPSC perspective, the following things are important :
Prelims level: Article 19
Mains level: Paper 2- Issues with Section 124A
Context
In a brief order delivered in S.G. Vombatkere vs Union of India, a three-judge Bench of the Supreme Court of India effectively suspended the operation of Section 124A of the Indian Penal Code.
What was the basis for the reconsideration?
- This direction was issued after the Union government filed an affidavit informing the Court that it had decided to re-examine the law.
- The Bench believed that the offer to reconsider the provision, if nothing else, showed that the Government was in broad agreement with the Court’s prima facie opinion on the matter, that the clause as it stands “is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime”.
Section 125A and issues with it
- Section 124A defines sedition as any action — “whether by words, signs, or visible representation” — which “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India”.
- The word “disaffection”, the provision explains, “includes disloyalty and all feelings of enmity”.
- The adopted Constitution did not permit a restriction on free speech on the grounds of sedition.
- In the 1950s, two different High Courts struck down Section 124A as offensive to freedom.
- But, in 1962, in Kedar Nath Singh vs State of Bihar, a five-judge Bench of the Supreme Court reversed these verdicts.
- The Court paid no heed to the debates that informed the Constituent Assembly.
- Instead, it found that Section 124A was defensible as a valid restriction on free speech on grounds of public order.
- However, while upholding the clause, the Court limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
- Vague terms: The decision failed to recognise that terms such as “disaffection towards the government”, which are fundamentally vague.
- Marginalised sections affected: Since then, in its application by law enforcement, the limitations imposed in Kedar Nath Singh have rarely been observed.
- As is often the case with abuses of this kind, it is the most marginalised sections of society that have faced the brunt of the harm.
- Reading of fundamental rights changed: Since 1962, when the judgment was handed out, the Supreme Court’s reading of fundamental rights has undergone a transformative change.
- Time to reconsider Kedar Nath: This altered landscape meant that when fresh challenges were mounted against Section 124A, the time to reconsider Kedar Nath Singh had clearly arrived.
- In the long run, the decision in Kedar Nath Singh will require a clear disavowal.
- But in nullifying Section 124A, albeit for the present, the Court has provided provisional relief — allowing those accused of the offence to both seek bail in terms of the order, and to have their trials frozen.
Conclusion
To protect our democracy, we must ensure that the constitutional guarantees to personal liberty and freedom do not go in vain. For that, each of our penal laws must be animated by a concern for equality, justice, and fairness.
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Freedom of Speech – Defamation, Sedition, etc.
Sedition law
From UPSC perspective, the following things are important :
Prelims level: Article 19
Mains level: Paper 2- Misuse of sedition law
Context
On May 11, the Supreme Court directed the Union government and the states to refrain from using the law of sedition and keep all previous cases under 124A in abeyance till the matter is reconsidered in a comprehensive way.
Data on Section 124A and UAPA about pendency and conviction rates
- The data on draconian laws like 124A or UAPA exposes their untenability.
- According to the National Crime Records Bureau data, a total of 156 cases of sedition were pending in 2017.
- In that year, only 27 cases could be disposed of at the police level by withdrawing the case or submitting a chargesheet.
- In courts, out of the 58 cases on trial, only one conviction could be obtained and the pendency rate for the cases of sedition was close to 90 per cent.
- The number of cases increased in 2020, the year for which the latest NCRB data is available, but with the same results.
- Of the total 230 cases registered, only 23 were chargesheeted.
- Pendency in court reached close to 95 per cent for the sedition cases in 2020.
- The abysmally low rate of conviction and disposal of these cases make it clear that these charges are slapped with very flimsy or no evidence to intimidate or harass those who question the government’s fiat.
- The picture is no different for the UAPA.
- Cases under it have increased by about 75 per cent between 2017-2020.
- A total of 4,827 UAPA cases were pending in 2020 —of them, only 398 could be chargesheeted in that year.
- The pendency rate in court remained 95 per cent, indicating harassment and violation of the right to life and liberty for a great number of people who are suffering because of the diabolical prison conditions in India.
Recommendations and measures
- A consultation paper on sedition circulated by the Law Commission of India on August 30, 2018, found many issues that need addressing around the working of Section 124A.
- Most recently, on May 11, the Supreme Court directed the Union government and the states to refrain from using the law of sedition.
Conclusion
Dissent, criticism and differences of opinion are vital for the functioning of any democracy. The witch-hunting of those who question the government of the day reminds us of medieval times and totalitarian rulers. It is time we usher in an era of free speech. For that, the sedition law must go.
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Freedom of Speech – Defamation, Sedition, etc.
India slips to 150 in Press Freedom Index
From UPSC perspective, the following things are important :
Prelims level: Freedom of Speech and Expression, Its many aspects
Mains level: Freedom of press in India
India has reached 150th position in the World Press Freedom Index, dropping further from its last year’s 142nd rank out of 180 countries.
What is Press Freedom Index?
- The PFI is an annual ranking of countries compiled and published by Reporters Without Borders since 2002.
- It is based upon the organisation’s own assessment of the countries’ press freedom records in the previous year.
- It intends to reflect the degree of freedom that journalists, news organisations, and netizens have in each country, and the efforts made by authorities to respect this freedom.
- It does not measure the quality of journalism in the countries it assesses, nor does it look at human rights violations in general.
Highlights of the 2022 report
(a) Best performing countries
- Norway– 1st
- Denmark– 2nd
- Sweden– 3rd
- Estonia– 4th
- Finland– 5th
(b) Worst performers
- North Korea remained at the bottom of the list, while Russia was placed at 155th position, slipping from 150th last year.
- As per the global media watchdog, China climbed up by two positions ranking at 175th position, as compared to 177th position last year.
(c) Performance in our neighbourhood
- Besides India, its neighbours except Nepal have also slid down.
- While Pakistan is at 157th position, Sri Lanka ranks at 146th, Bangladesh at 162nd and Maynmar at 176th position.
Back2Basics: Freedom of Press and Constitutional Provisions
- The Supreme Court in Romesh Thappar v. the State of Madras, 1950 observed that freedom of the press lay at the foundation of all democratic organisations.
- It is guaranteed under the freedom of speech and expression under Article 19, which deals with ‘Protection of certain rights regarding freedom of speech, etc.
- Freedom of the press is not expressly protected by the Indian legal system but it is impliedly protected under article 19(1) (a) of the constitution.
- The freedom of the press is also not absolute.
Reasonable restrictions
- A law could impose only those restrictions on the exercise of this right, it faces certain restrictions under article 19(2), which is as follows:
- Sovereignty and integrity of India
- Security of the State,
- Friendly relations with foreign States
- Public order, decency or morality
- Contempt of court
- Defamation
- Incitement to an offence
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Freedom of Speech – Defamation, Sedition, etc.
SC Ruling on Sedition Law
From UPSC perspective, the following things are important :
Prelims level: Section 124A IPC
Mains level: Sedition law and Free speech
The Supreme Court has fixed May 5 for final hearing of the petitions challenging the constitutionality of the sedition law and made it clear that it will not brook any delay in the form of requests for adjournment.
What is the Sedition Law?
- Section 124A of the Indian Penal Code lays down the punishment for sedition. The IPC was enacted in 1860, under the British Raj.
- The then British government in India feared that religious preachers on the Indian subcontinent would wage a war against the government.
- Particularly after the successful suppression of the Wahabi/Waliullah Movement by the British, the need was felt for such law.
- Throughout the Raj, this section was used to suppress activists in favor of national independence, including Tilak and Mahatma Gandhi, both of whom were found guilty and imprisoned.
What is Sedition?
- The Section 124A defines sedition as:
An offence committed when “any person by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India”.
- Disaffection includes disloyalty and all feelings of enmity.
- However, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offense.
- Sedition is a non-bailable offense.
- Punishment under Section 124A ranges from imprisonment up to three years to a life term with/without a fine.
Sedition as a cognizable offense
- Sedition was made a cognizable offense for the first time in history in India during the tenure of Prime Minister Indira Gandhi in 1973, that is, arrest without a warrant was now permissible.
- In 1962 the Supreme Court of India interpreted the section to apply only if there is, say, “incitement to violence” or “overthrowing a democratically elected government through violent means”.
Is it constitutionally valid?
- Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
- Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
- Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
- Limited use: At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
- Strong criticism doesn’t amount to sedition: Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.
Why the controversy now?
- Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
- Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
- Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
- Irrelevance: Many of them have also been detained under the National Security Act and UAPA.
What is being debated about it?
- Demand for its scrapping: Liberals and rights activists have been demanding the scrapping of Section 124A.
- Provision is outdated: It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
- Various calls for its reconsideration: The Law Commission has also called for a reconsideration of the section.
- Tyranny of the law: It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
- Doctrine of severability: Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.
Way forward
- India is the largest democracy in the world and the right to free speech and expression is an essential ingredient of democracy.
- The sedition law should not be abolished as some measures are needed to check communal violence & insurgency activities like Naxals.
- The definition of sedition should be narrowed down, to include only the issues pertaining to the territorial integrity of India as well as the sovereignty of the country.
- Section 124A should not be misused as a tool to curb free speech.
Try answering this PYQ:
Q.With reference to Rowlatt Satyagraha, which of the following statements is/are correct?
- The Rowlatt Act was based on the recommendations of the ‘Sedition Committee’.
- In Rowlatt Satyagraha, Gandhiji tried to utilize the Home Rule League.
- Demonstrations against the arrival of Simon Commission coincided with Rowlatt Satyagraha.
Select the correct answer using the code given below:
(a) 1 only
(b) 1 and 2 only
(c) 2 and 3 only
(d) 1, 2 and 3
Post your answers here.
Also read
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Freedom of Speech – Defamation, Sedition, etc.
Hate speech
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Dealing with the hate speech
Context
Hate speech is at the root of many forms of violence that are being perpetrated and has become one of the biggest challenges to the rule of law and to our democratic conscience.
Consequences of hate speech
- Electoral mobilisation along the communal line: One of the most visible consequences of hate speech is increased electoral mobilisation along communal lines which is also paying some electoral dividends.
- Hate speech, in itself, must be understood and treated as a violent act and urgently so.
- With elected members currently sitting in the legislative assemblies and Parliament giving political sanction to citizens mobilised into mob violence and complicit public officials, hate speech is becoming the dominant mode of public political participation.
Role of Election Commission
- In 2019, the Supreme Court reprimanded the Election Commission, calling it “toothless” for not taking action against candidates engaging in hate speech during the election campaigns in UP.
- The Commission responded by saying that it had limited powers to take action in this matter.
- So far, the Supreme Court does not appear to have acted decisively in response to allegations of hate speech in electoral campaigns, indicating that the EC must assume more responsibility and the EC has argued that in matters of hate speech, it is largely “powerless”.
- In any case, the EC’s role is confined to the election period.
Legal provisions to deal with hate speech
- The Indian Penal Code, as per Sections 153A, 295A and 298, criminalises the promotion of enmity between different groups of people on grounds of religion and language, alongside acts that are prejudicial to maintaining communal harmony.
- Section 125 of the Representation of People Act deems that any person, in connection with the election, promoting feelings of enmity and hatred on grounds of religion and caste is punishable with imprisonment up to three years and fine or both.
- Section 505 criminalises multiple kinds of speech, including statements made with the intention of inducing, or which are likely to induce, fear or alarm to the public.
- It covers incitement of violence against the state or another community, as well as promotion of class hatred.
Recommendations and suggestions
- The Law Commission in its 267th report published in March 2017, recommended introduction of new provisions within the penal code that specifically punish incitement to violence in addition to the existing ones.
- Responsibility of Media: In recent years, hate speech in all its varieties has acquired a systemic presence in the media and the internet, from electoral campaigns to everyday life.
- This epidemic of mediatised hate speech is, in fact, a global phenomenon.
- According to the Washington Post, 2018 can be considered as “the year of online hate”.
Conclusion
Enough damage has been done. We cannot wait another day to address this growing challenge.
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Freedom of Speech – Defamation, Sedition, etc.
Central Media Accreditation Guidelines 2022
From UPSC perspective, the following things are important :
Prelims level: Freedom of Speech and Expression, Its many aspects
Mains level: Read the attached story
The Centre has issued a new policy on the accreditation of journalists, introducing an entire section about reasons that can result in the suspension of the accreditation.
What is the Policy for Accreditation?
- The new policy lays down guidelines on how PIB accreditation will be granted to eligible journalists.
- It is prepared by the Ministry of Information and Broadcasting (I&B) and issued by the Press Information Bureau.
- At the moment there are 2,457 PIB-accredited journalists in the country.
Conditions laid
- For the first time, it specifies conditions that can result in the journalist losing accreditation.
- The new policy has ten points that may result in the accreditation being canceled, including if a journalist is charged with a “serious cognizable offense”.
- If a journalist acts in a manner that is prejudicial to the following conditions, his/ her accreditation can be canceled:
- Sovereignty and integrity of India
- Security of the nation
- Friendly relations with foreign states
- Public order
- Decency or morality or
- Defamation or incitement of an offense
- In relation to Contempt of Court
- Accreditation is also liable to be withdrawn/suspended if it is found to have been misused.
Who is eligible for accreditation?
- Applications for accreditation are vetted by a Central Press Accreditation Committee headed by the DG, PIB.
- After a journalist applies, a mandatory security check is conducted by the Home Ministry, which includes police verification of the journalist’s residence.
(1) Journalists
- But a journalist needs to have a minimum of five years of professional experience as a full-time working journalist or a cameraperson in a news organization, or a minimum of 15 years as a freelancer to become eligible.
- Veteran journalists, with over 30 years of experience, and who are older than 65 years of age, too are eligible.
- Accreditation is only available for journalists living in the Delhi NCR region.
- Similar rules apply to foreign news organizations and foreign journalists.
(2) Newspapers
- A newspaper or a periodical needs to have a minimum daily circulation of 10,000, and news agencies must have at least 100 subscribers.
(3) Digital platforms and others
- The policy has introduced a provision that journalists working with digital news platforms are also eligible, provided the website has a minimum of 10 lakh unique visitors per month.
How does accreditation help?
- Professional status: The policy mentions that the accreditation does not “confer any official or special status” on the journalists, but only recognizes them as “professional working journalists”.
- Reporting important offices: In certain events where VVIPs or dignitaries such as the President, the Vice President, or the Prime Minister are present, only accredited journalists are allowed to report from the premises.
- Source Identity: Accreditation ensures that a journalist is able to protect the identity of his or her sources.
- Authencity: An accredited journalist does not have to disclose who he or she intends to meet when entering offices of union ministries, as the accreditation card is valid for entry.
- Perks and benefits: Accreditation brings certain benefits for the journalist and his or her family, like being included in the Central Government Health Scheme, and some concessions on railway tickets.
What concerns does this raise?
- Intimidation: This could result, at times, in such powers trying to intimidate journalists or to block information from coming out.
- Alleged defamation: A common tool used by powerful people is filing of defamation cases against journalists and media platforms.
- Prevents constructive criticism: Journalists often report on issues and policy decisions that the government may not like.
- Subjectivity of criteria: The new policy’s provision about acting “in manner which is prejudicial to the sovereignty and integrity of India can be subjective.
- No watchdog: The policy is silent on who will decide if a journalist’s conduct violates any of these conditions.
- Media trials: Any investigative story on sensitive issues could be held to be in violation of any of these provisions.
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Freedom of Speech – Defamation, Sedition, etc.
Information and Broadcasting Ministry’s powers to regulate content on TV
From UPSC perspective, the following things are important :
Prelims level: Information and Broadcasting Ministry
Mains level: Regulation of news channels
The Kerala High Court will pronounce its judgment on an Information and Broadcasting Ministry (I&B) order banning a Malayalam news channel over its connections with radical groups.
Sectors regulated by I&B Ministry
- Until last year, it had the power to regulate content across all sectors barring the internet.
- The sectors include TV channels, newspapers and magazines, movies in theatres and on TV, and the radio.
- Since Feb 2021, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, extended its regulatory powers over internet content.
- It now exercises powers especially on digital news and OTT platforms such as Netflix, Amazon Prime, or Hotstar.
What kind of powers does it have?
(a) Film Censoring
- For example, the Central Board of Film Certification (CBFC) has a mandate to give any film that will be played in a theatre, a rating indicating the kind of audience it is suitable for.
- In practice, however, the CBFC has often suggested changes or cuts to a film before giving it a certification.
- While it isn’t the CBFC’s mandate to censor a film, it can withhold giving a rating unless the filmmaker agrees to its suggestions.
(b) TV Censoring
- When it comes to TV channels, the government last year came up with a three-tier grievance redressal structure for viewers to raise concerns, if any.
- A viewer can successively approach the channel, then a self-regulatory body of the industry, and finally the I&B Ministry, can issue a show-cause notice to the channel,.
- It can then refer the issue to an inter-ministerial committee (IMC).
(c) OTT and other platforms
- For content on OTT platforms too, there is a similar structure.
Power to Ban news channels
- It has in the past issued orders to temporarily ban news and other channels.
- In November 2016, it imposed a one-day ban on NDTV for its reporting of the Pathankot terror attack.
- Violation can lead to revocation of a channel’s uplinking license (for sending content to a satellite) or downlinking license (for broadcasting to viewers through an intermediary).
- In print, based on the recommendations of the Press Council of India, the government can suspend its advertising to a publication.
- And last year’s IT rules allow I&B Ministry to issue orders to ban websites based on their content.
What kind of content is not allowed?
- There are no specific laws on content allowed or prohibited in print and electronic media, radio, films, or OTT platforms.
- The content on any of these platforms has to follow the free speech rules of the country.
- Article 19(1) while protecting the freedom of speech, also lists certain “reasonable restrictions” including content related to the security of the state, friendly relations with foreign states, public order, decency, morality, etc.
- Action can be taken if any of these restrictions are violated.
Do other agencies play a role?
- There is no direct involvement, as the powers to regulate content rest only with the I&B Ministry.
- However, the ministry relies on inputs from other ministries, as well as intelligence agencies.
- In the recent case, its licenses were revoked because the Home Ministry had denied it security clearance, which is essential as part of the policy.
- There is also a new mechanism the I&B Ministry adopts.
- It has used emergency powers it has under the new IT Rules to block certain YouTube channels and social media accounts based on inputs from intelligence agencies.
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Freedom of Speech – Defamation, Sedition, etc.
India Press Freedom Report, 2021
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Free speech and press
The India Press Freedom Report, 2021was recently released by the Rights and Risks Analysis Group (RRAG).
India Press Freedom Report, 2021: Key Highlights
- Jammu and Kashmir, Uttar Pradesh, Madhya Pradesh and Tripura topped the list of States and Union Territories where journalists and media houses were targeted in 2021.
- It is followed by Delhi (8), Bihar (6), Assam (5), Haryana and Maharashtra (4 each), Goa and Manipur (3 each), Karnataka, Tamil Nadu and West Bengal (2 each), and Andhra Pradesh, Chhattisgarh and Kerala (1each).
- While J&K recorded the maximum attacks by State actors, Tripura had the most cases of attacks by non-State actors, the analysis of data showed.
Significance of the report
- The widespread attacks on the press freedom are an indicator of the continuing deterioration of civic space in the country.
- It represents the status of free speech exercised in our country.
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Freedom of Speech – Defamation, Sedition, etc.
How to deal with hate speech
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Dealing with hate speech
Context
On January 12, 2022 , the Supreme Court of India agreed to hear petitions asking for legal action to be taken against the organisers of, and speakers at, the “Hardwar Dharma Sansad”.
What constitutes hate speech
- Hate speech is speech that targets people based on their identity, and calls for violence or discrimination against people because of their identity.
- There is an absence of any legal or social consensus around what constitutes “hate speech.”
- As societies around the world have long understood, the harm in hate speech is not restricted to direct and proximate calls to violence.
- Inciting discrimination is part of hate speech: Hate speech works in more insidious ways, creating a climate that strengthens existing prejudices and entrenches already-existing discrimination.
- This is why – with the exception of the United States of America – most societies define hate speech in terms of both inciting violence, but also, inciting discrimination.
Challenges in dealing with hate speech
- Legal challenge: Our laws – as they stand – are unequipped to deal with the challenges of hate speech.
- The laws commonly invoked in such cases are section 295A of the Indian Penal Code (blasphemy) and section 153A of the Indian Penal Code (creating enmity between classes of people).
- Hate speech will not always be self-evident: Hate speech, by its very nature, will not always trumpet itself to be hate speech.
- Rather, it will often assume plausible deniability – as has been seen in the Hardwar case, where statements, worded with the right degree of ambiguity, are now being defended as calls to self-defence rather than calls to violence.
- Any comprehensive understanding of hate speech is a matter of judgment, and must take into account its ambiguous and slippery nature.
- Lack of social consensus against hate speech: No matter how precise and how definite we try to make our concept of hate speech, it will inevitably reflect individual judgment.
- If, therefore, social and legal norms against hate speech are to be implemented without descending into pure subjectivity, what is needed – first – is a social consensus about what kind of speech is beyond the pale.
- In Europe, for example, holocaust denial is an offence – and is enforced with a degree of success – precisely because there is a pre-existing social consensus about the moral abhorrence of the holocaust.
Conclusion
Achieving this social consensus is an immense task, and will require both consistent legal implementation over time, but also daily conversations that we, as a society need to have among ourselves.
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Freedom of Speech – Defamation, Sedition, etc.
Hate speech: SC seeks response from govt.
From UPSC perspective, the following things are important :
Prelims level: Freedom of Speech and Expression, Its many aspects
Mains level: Hate speech and related issues
The Supreme Court has asked the Ministry of Home Affairs (MHA) and the police to respond to petitions that people accused of delivering hate speeches at a religious conference in Haridwar have not been arrested yet.
What is ‘Hate Speech’?
- There is no specific legal definition of ‘hate speech’.
- The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like …
- Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”
- In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.
How is it treated in Indian law?
- Provisions in law criminalize speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.
- Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.
[I] Section 153A:
- Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.
[II] Section 505:
505(1): Statements conducing to public mischief
- The statement, publication, report or rumour that is penalized under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquility.
- This attracts a jail term of up to three years.
505(2): It is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.
505(3): Same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.
What has the Law Commission proposed?
The Law Commission has proposed that separate offences be added to the IPC to criminalize hate speech quite specifically instead of being subsumed in the existing sections concerning inflammatory acts and speeches.
[A] Inserting two sections
- It has proposed that two new sections, Section 153C and Section 505A, be added.
Section 153C
It is an offence if anyone-
- Uses gravely threatening words, spoken or written or signs or visible representations, with the intention to cause fear or alarm OR
- Advocates hatred that causes incitement to violence, on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe
Section 505A
- It proposes to criminalize words, or display of writing or signs that are gravely threatening or derogatory, within the hearing or sight of a person, causing fear or alarm or, with intent to provoke the use of unlawful violence against that person or another”.
[B] Imprisonment
- Section 153C: two-year jail term for this and/or a fine of ₹5,000 or both
- Section 505A: prison term of up to one year and/or a fine up to ₹5,000
Other committees’ recommendations
- Similar proposals to add sections to the IPC to punish acts and statements that promote racial discrimination or amount to hate speech have been made by the M.P. Bezbaruah Committee and the T.K. Viswanathan Committee.
- At present, the Committee for Reforms in Criminal Laws, which is considering more comprehensive changes to criminal law, is examining the issue of having specific provisions to tackle hate speech.
Why regulate hate speech?
- Creates social divide: Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
- Threat to peaceful co-existence: The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.
Issues in regulating hate speech
- Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
- Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
- Legal complications: An over-reliance on legal instruments to solve fundamentally social and political problems often backfires.
Way ahead
- Subjects like hate speeches become a complex issue to deal with, in a country like India which is very diverse, as it was very difficult to differentiate between free and hate speech.
- There are many factors that should be considered while restraining speeches like strong opinions, offensive comments towards certain communities, the effect on values like dignity, liberty and equality.
- We all have to work together and communicate efficiently for our country to be a healthy place to live in.
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Freedom of Speech – Defamation, Sedition, etc.
Hate speech in the time of free speech
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Free speech vs hate speech
Context
The growing incidence of hate speeches, especially those targeting minorities, in combination with the judicial ambiguity has provided an opportunity to chart legislative reforms.
Current legal provisions to deal with hate speech
- Not defined in legal framework: Hate speech is neither defined in the Indian legal framework nor can it be easily reduced to a standard definition due to the myriad forms it can take.
- The Supreme Court, in Pravasi Bhalai Sangathan v. Union of India (2014), described hate speech as “an effort to marginalise individuals based on their membership in a group” and one that “seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society.”
- The Indian Penal Code illegalises speeches that are intended to promote enmity or prejudice the maintenance of harmony between different classes.
- Specifically, sections of the IPC, such as 153A, which penalises promotion of enmity between different groups;
- 153B, which punishes imputations, assertions prejudicial to national integration;
- 505, which punishes rumours and news intended to promote communal enmity, and
- 295A, which criminalises insults to the religious beliefs of a class by words with deliberate or malicious intention.
- Summing up various legal principles, in Amish Devgan v. Union of India (2020), the Supreme Court held that “hate speech has no redeeming or legitimate purpose other than hatred towards a particular group”.
- Lack of established legal standard: Divergent decisions from constitutional courts expose the lack of established legal standards in defining hate speech, especially those propagated via the digital medium.
Suggestions
- The Law Commission of India, in its 267th report, recommended the insertion of two new provisions to criminalise and punish the propagation of hate speech.
- The 189th Report of the Parliamentary Standing Committee on Home Affairs, in 2015, recommended the incorporation of separate and specific provisions in the Information Technology Act to deal with online hate speech.
- Specialised legislation for social media: Much of the existing penal provisions deal with hate speech belong to the pre-Internet era.
- The need of the hour is specialised legislation that will govern hate speech propagated via the Internet and, especially, social media.
- Recognise hate speech as reasonable restriction to free speech: Taking cue from best international standards, it is important that specific and durable legislative provisions that combat hate speech, especially that which is propagated online and through social media.
- Ultimately, this would be possible only when hate speech is recognised as a reasonable restriction to free speech.
Consider the question “What is hate speech? What are the challenges in dealing with hate speech? Suggest a way forward.”
Conclusion
It is important that specific and durable legislative provisions be enacted to combat hate speech.
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Freedom of Speech – Defamation, Sedition, etc.
Punishing Hate Speech
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Issues with free speech
A recent religious conclave has witnessed inflammatory and provocative speeches by some religious proponents hinting at a Myanmar-type ‘minority cleansing campaign’.
What is ‘Hate Speech’?
- There is no specific legal definition of ‘hate speech’.
- The Law Commission of India, in its 267th Report, says: “Hate speech generally is an incitement to hatred primarily against a group of persons defined in terms of race, ethnicity, gender, sexual orientation, religious belief and the like …
- Thus, hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person with the intention to cause fear or alarm, or incitement to violence.”
- In general, hate speech is considered a limitation on free speech that seeks to prevent or bar speech that exposes a person or a group or section of society to hate, violence, ridicule or indignity.
How is it treated in Indian law?
- Provisions in law criminalize speeches, writings, actions, signs and representations that foment violence and spread disharmony between communities and groups and these are understood to refer to ‘hate speech’.
- Sections 153A and 505 of the Indian Penal Code are generally taken to be the main penal provisions that deal with inflammatory speeches and expressions that seek to punish ‘hate speech’.
[I] Section 153A:
- Promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’, is an offence punishable with three years’ imprisonment.
[II] Section 505:
505(1): Statements conducing to public mischief
- The statement, publication, report or rumour that is penalized under Section 505(1) should be one that promotes mutiny by the armed forces, or causes such fear or alarm that people are induced to commit an offence against the state or public tranquility.
- This attracts a jail term of up to three years.
505(2): It is an offence to make statements creating or promoting enmity, hatred or ill-will between classes.
505(3): Same offence will attract up to a five-year jail term if it takes place in a place of worship, or in any assembly engaged in religious worship or religious ceremonies.
What has the Law Commission proposed?
The Law Commission has proposed that separate offences be added to the IPC to criminalize hate speech quite specifically instead of being subsumed in the existing sections concerning inflammatory acts and speeches.
[A] Inserting two sections
- It has proposed that two new sections, Section 153C and Section 505A, be added.
Section 153C
It is an offence if anyone-
- Uses gravely threatening words, spoken or written or signs or visible representations, with the intention to cause fear or alarm OR
- Advocates hatred that causes incitement to violence, on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe
Section 505A
- It proposes to criminalize words, or display of writing or signs that are gravely threatening or derogatory, within the hearing or sight of a person, causing fear or alarm or, with intent to provoke the use of unlawful violence against that person or another”.
[B] Imprisonment
- Section 153C: two-year jail term for this and/or a fine of ₹5,000 or both
- Section 505A: prison term of up to one year and/or a fine up to ₹5,000
Other committees’ recommendations
- Similar proposals to add sections to the IPC to punish acts and statements that promote racial discrimination or amount to hate speech have been made by the M.P. Bezbaruah Committee and the T.K. Viswanathan Committee.
- At present, the Committee for Reforms in Criminal Laws, which is considering more comprehensive changes to criminal law, is examining the issue of having specific provisions to tackle hate speech.
Why regulate hate speech?
- Creates social divide: Individuals believe in stereotypes that are ingrained in their minds and these stereotypes lead them to believe that a class or group of persons are inferior to them and as such cannot have the same rights as them.
- Threat to peaceful co-existence: The stubbornness to stick to a particular ideology without caring for the right to co-exist peacefully adds further fuel to the fire of hate speech.
Issues in regulating hate speech
- Powers to State: Almost every regulation of speech, no matter how well-intentioned, increases the power of the state.
- Hate speeches are Political: The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
- Legal complications: An over-reliance on legal instruments to solve fundamentally social and political problems often backfires.
What lies ahead?
- Subjects like hate speeches become a complex issue to deal with, in a country like India which is very diverse, as it was very difficult to differentiate between free and hate speech.
- There are many factors that should be considered while restraining speeches like strong opinions, offensive comments towards certain communities, the effect on values like dignity, liberty and equality.
- We all have to work together and communicate efficiently for our country to be a healthy place to live in.
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Freedom of Speech – Defamation, Sedition, etc.
Govt. disagrees with India’s rank in World Press Freedom Index
From UPSC perspective, the following things are important :
Prelims level: World Press Freedom Index
Mains level: Freedom of press in India
The Centre has shown its disagreement with the conclusions drawn by Reporters Without Borders about press freedom in India for various reasons.
World Press Freedom Index
- The PFI is an annual ranking of countries compiled and published by Reporters Without Borders since 2002.
- It is based upon the organization’s own assessment of the countries’ press freedom records in the previous year.
- It intends to reflect the degree of freedom that journalists, news organizations, and netizens have in each country, and the efforts made by authorities to respect this freedom.
- It is careful to note that the index only deals with press freedom and does not measure the quality of journalism in the countries it assesses, nor does it look at human rights violations in general.
India’s ranking
- India is ranked at 142 out of 180 countries on the World Press Freedom Index 2021.
- In the South Asian neighborhood, Nepal is at 106, Sri Lanka at 127, Myanmar (before the coup) at 140, Pakistan at 145 and Bangladesh at 152.
- China is ranked 177, and is only above North Korea at 179 and Turkmenistan at 178.
What the report said about India
- Targeting women: It has been highlighted that the “campaigns are particularly violent when the targets are women”.
- Criminal prosecutions: Often used to gag journalists critical of the authorities.
- Draconian laws: It termed various Indian laws such as – laws on ‘sedition,’ ‘state secrets’ and ‘national security’, draconian.
- Curb on freedom of expression: The report has also highlighted the throttling of freedom of expression on social media.
- Censorship on social media: It specifically mentioned that in India the “arbitrary nature of Twitter’s algorithms also resulted in brutal censorship”
Reservations held by India
- India along with many nations has reportedly disgusted the outcomes of this report. It stated that media in India enjoy absolute freedom.
- The government does not subscribe to its views and country rankings and does not agree to the conclusions drawn by this organization for various reasons:
- Non-transparent methodology
- Very low sample size
- Little or no weightage to fundamentals of democracy
- Adoption of a methodology that is questionable and non-transparent
- Lack of clear definition of press freedom, among others
Why is the report biased?
- The report is a subjective measure computed through the prism of western liberals.
- It tends to default to a homogenous view of mass media which then facilitates comparison between countries.
- There are no questions about media ownership or about their economic concentration in private hands.
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Freedom of Speech – Defamation, Sedition, etc.
Phrase ‘Anti-national’ not defined in statutes: MHA
From UPSC perspective, the following things are important :
Prelims level: UAPA
Mains level: Anti-national activities
The phrase ‘anti-national’ has not been defined in statutes, the Ministry of Home Affairs (MHA) has informed the Parliament.
Defining Anti-national Activities
(1) Unlawful Activities (Prevention) Act
- The UAPA is aimed at the prevention of unlawful activities associations in India.
- Its main objective was to make powers available for dealing with activities directed against the integrity and sovereignty of India.
(2) Sedition Law
- Section 124A IPC deals with attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards, the Government established by law in India.
- This law was enacted by the British colonial government in 1870 with the sole object of suppressing all voices of Indians critical of the government.
(3) NCRB Reports
- In 2019, when the National Crime Records Bureau released the annual Crime in India report for year 2017, it included for the first time a new chapter on “Crime Committed by Anti National Elements.”
- The chapter listed – “North East insurgents, Left Wing Extremists and Terrorists (including Jihadi terrorists)” as the three anti-national elements.
Attempts for defining
- There are criminal legislations and various judicial pronouncements deal with unlawful and subversive activities which are detrimental to the unity and integrity of the country.
- In this regard, it is relevant to mention that the 42nd Constitutional Amendment Act, 1976 inserted in the Constitution Article 31D (during Emergency) which defined “anti-national activity”.
- This Article 31D was, later, omitted by the 43rd Constitutional Amendment Act, 1977.
Supreme Court guidelines
- In the ultimate analysis, the judgment in Kedar Nath (1962) read down Section 124A and held that without incitement to violence or rebellion there is no sedition.
- It says that ‘only when the words written or spoken etc. which have the pernicious tendency or intention of creating public disorder the law steps in.
Who maintains the data of such individuals?
- The onus of maintenance of such data lies with the respective states.
- ‘Public Order’ and ‘Police’ are State subjects as per the Seventh Schedule of the Constitution.
- Hence the data about the number of people arrested for indulging in anti-national activities are not maintained centrally.
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Freedom of Speech – Defamation, Sedition, etc.
Sedition Law: Section 124A of the IPC
From UPSC perspective, the following things are important :
Prelims level: Section 124A IPC
Mains level: Sedition law and Free speech
Law Minister has informed the Parliament that there is no proposal to scrap sedition from the IPC despite severe remarks by the Supreme Court about the chilling effect of the “colonial law” which suppresses the freedoms of ordinary people.
What does Section 124A of the IPC say?
- The section deals with the offence of sedition, a term that covers speech or writing, or any form of visible representation, which brings the government into hatred or contempt, or excites disaffection towards the government, or attempts to do so.
- It is punishable with three years in prison or a life term.
- “Disaffection”, it says, includes disloyalty and feelings of enmity.
- However, it also says expressing disapproval of government measures or actions, with a view to getting them changed by lawful means, without promoting hatred or disaffection or contempt towards the government will not come under this section.
What is its origin?
- Colonial past: Sedition was introduced in the penal code in 1870, a decade after the Indian Penal Code came into force.
- It was a colonial law directed against strong criticism of the British administration.
- Putting curb on Freedom fighters: Its most famous victims included Bal Gangadhar Tilak and Mahatma Gandhi.
- Gandhiji called it “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.
Is it constitutionally valid?
- Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
- Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
- Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
Why the controversy now?
- Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
- Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
- Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
- Irrelevance: Many of them have also been detained under the National Security Act and UAPA.
What is being debated about it?
- Liberals and rights activists have been demanding the scrapping of Section 124A.
- It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
- The Law Commission has also called for a reconsideration of the section.
- It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
- Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.
What has the apex court observed?
- Justice D.Y. Chandrachud had flagged the indiscriminate use of the sedition law against people who aired their grievances about the government’s COVID management.
- People have been charged even for seeking help to gain medical access, equipment, drugs and oxygen cylinders, especially during the second wave of the pandemic.
- Justice U.U. Lalit, in his recent judgment, quashed a sedition case against a person for his alleged remarks about the PM and the Union Government.
Way forward
- The time is long past when the mere criticism of governments was sufficient to constitute sedition.
- The right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness, the CJI has recorded.
Try answering this PYQ:
Q.With reference to Rowlatt Satyagraha, which of the following statements is/are correct?
- The Rowlatt Act was based on the recommendations of the ‘Sedition Committee’.
- In Rowlatt Satyagraha, Gandhiji tried to utilize the Home Rule League.
- Demonstrations against the arrival of Simon Commission coincided with Rowlatt Satyagraha.
Select the correct answer using the code given below:
(a) 1 only
(b) 1 and 2 only
(c) 2 and 3 only
(d) 1, 2 and 3
Post your answers here.
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Freedom of Speech – Defamation, Sedition, etc.
Farmers have Right to Protest, but can’t block roads: SC
From UPSC perspective, the following things are important :
Prelims level: Article 19
Mains level: Farmers protests and related issues
The Supreme Court has said farmers protesting at Delhi borders against the three farms laws have the right to agitate but they cannot block roads indefinitely.
For students with Sociology optional, can someone list the differences between- Dissent, Protest, Agitation and Movement?
What is Protest?
- When a group, community, or even a person goes up to protest, it is usually to showcase their disapproval or demur against any action, policy, statement, etc of state or government or any organization.
- Mostly the flow of protest is driven through political waves that also demonstrate the collective organization of people to make the government or state address their issues and take steps to overcome them.
Issues with ongoing protest in Delhi
- The question as to the absolute nature of the right to protest is not even a question in the true sense here.
- We have seen the vandalism protest at Red Fort last year.
- Hence the rights mentioned above are subject to reasonable restrictions under 19 (2) and 19 (3) on grounds such as sovereignty and integrity of India, and public order.
Right to Protest in India
- The right to protest is the manifestation of three FRs:
- Right to Freedom of Assembly
- Right to Freedom of Association and
- Right to Freedom of Speech
- The Constitution of India provides the right of freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution.
- The Right to protest peacefully is enshrined in Article 19(1) (a) guarantees the freedom of speech and expression; Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
In detail: Article 19(1)
It states that All citizens shall have the right:
- (a) to freedom of speech and expression;
- (b) to assemble peaceably and without arms;
- (c) to form associations or unions;
- (d) to move freely throughout the territory of India;
- (e) to reside and settle in any part of the territory of India; and
- (f) omitted
- (g) to practice any profession, or to carry on any occupation, trade or business
Do you know?
Right to Internet is a fundamental right and is an essential part of freedom of speech and expression. One might get confused if it is an FR under Article 21.
Reasonable restrictions do exist in practice
- Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter. They have to co-exist in mutual respect.
- Article 19(2) imposes reasonable restrictions on this.
- The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.
Conclusion
- Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
- The present case was not even one of the protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters.
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Freedom of Speech – Defamation, Sedition, etc.
Freedom of Movement and Residence
From UPSC perspective, the following things are important :
Prelims level: Freedom of Movement and Residence
Mains level: Read the attached story
The rights to free movement and residence across India cannot be curtailed on flimsy grounds, a Bench of Justices Indira Banerjee and V. Ramasubramanian held in a judgment.
Freedom of Movement and Residence
- Article 19(1)(d) and (e) of the Indian Constitution guarantees to every citizen of India right to move freely throughout the territory of India and to reside and settle in any Part of the of the Territory of India.
- This right is subject to reasonable restrictions imposed by law in the interest of the general public or for the protection of the interests of any Scheduled Tribes.
(A) Freedom of Movement under Article 19(1)(d)
- All Citizens of India have the right “to move freely throughout the territory of India.
- This Right is, however subject to reasonable restrictions mentioned under Article 19(5).
Restrictions:
- This clause (5) empowers the State to impose reasonable restrictions in the interest of the general public or for the protection of the interest of any Scheduled Tribe.
- Kharak Singh V. State of UP (1963) Case: The Supreme Court held that the right to move freely throughout the territory of India means the right of locomotion which connotes the right to move wherever one likes, and however one likes.
- State of UP V. Kaushalya Case (1964): In this case, the Supreme court held that the right of movement of prostitutes may be restricted on grounds of Public Health and in the interest of Public Morals.
(B) Freedom of Resident under Article 19(1)(e)
- Article 19(1)(e) of the Indian Constitution guarantees to every citizen of India, the right “to reside and settle in any part of the territory of India”.
- This right is subjected to reasonable restrictions which may be imposed by the State in the interest of the general public or for the protection of the interest of any Scheduled Tribe.
Some facts
- The Freedom of Movement and Residence apply only to citizens of India and not the Foreigners.
- A foreigner cannot claim the right to reside and settle in the country as guaranteed by Article Article 19(1)(e).
- The Government of India has the power to expel foreigners from India.
Why in news, now?
- The Supreme Court has held that the power of the State to pass an externment order or a direction barring certain people entry to specified areas should be exercised only in “exceptional cases”.
- The court said externment orders have their use in maintaining law and order.
- However, they cannot be employed as a vindictive or retaliatory measure.
- The drastic action of externment should only be taken in exceptional cases, to maintain law and order in a locality and/or prevent breach of public tranquility and peace, the court noted.
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Back2Basics: Article 19
Article 19(1) states that All citizens shall have the right:
- (a) to freedom of speech and expression;
- (b) to assemble peaceably and without arms;
- (c) to form associations or unions;
- (d) to move freely throughout the territory of India;
- (e) to reside and settle in any part of the territory of India; and
- (f) omitted
- (g) to practice any profession, or to carry on any occupation, trade, or business
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Freedom of Speech – Defamation, Sedition, etc.
Protest should not hinder traffic: SC
From UPSC perspective, the following things are important :
Prelims level: Right to Protest
Mains level: Reasonable restrictions on Fundamental Rights
The Supreme Court took a nuanced stand saying farmers have the right to protest but the agitation should not hinder traffic or public movement.
Right to Protest
- When a group, community, or even a person goes up to protest, it is usually to showcase their disapproval or demur against any action, policy, statement, etc of state or government or any organization.
- Mostly the flow of protest is driven through political waves that also demonstrate the collective organization of people to make the government or state address their issues and take steps to overcome them.
- In India, the right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.
Constitutional Backing
- Article 19(1) states that All citizens shall have the right:
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practice any profession, or to carry on any occupation, trade or business
Reasonable restrictions on Protest
- Article 51A makes it a fundamental duty for every person to safeguard public property and to avoid violence during the protests and resorting to violence during public protests results in infringement of key fundamental duty of citizens.
- Article 19(1)(b) states about the right to assemble peaceably and without arms. Thereby, the right to peaceful protest is bestowed to Indian citizens by our Constitution.
- Article 19(2) imposes a restriction on a person to prevent him from making a defamatory statement which defames the reputation of another person.
- Article 19(3): The reasonable restrictions are imposed in the interests of the sovereignty & integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation, or incitement to an offense.
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Freedom of Speech – Defamation, Sedition, etc.
Arrest is not always a must, says Supreme Court
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Issues over arbitrary detention
The Supreme Court has held that merely because the law allows arrest does not mean the State can use the power indiscriminately to crush personal liberty.
What is an Arrest?
- An arrest is a procedure in a criminal justice system.
- It is the act of apprehending and taking a person into custody (legal protection or control), usually because the person has been suspected of or observed committing a crime.
- After being taken into custody, the person can be questioned further and/or charged.
Distinction between arrest and detention
- There exists a distinction between an investigatory stop or detention and an arrest.
- The distinction tends to be whether or not the stop is “brief and cursory” in nature, and whether or not a reasonable individual would feel free to leave.
Article 21 of the Indian Constitution guarantees the protection of life and personal liberty to every individual and states that, “No person shall be deprived of his life and personal liberty except according to procedure established by law.”
Logic behind arresting
The Supreme Court has noted that:
- The occasion to arrest an accused during investigation arises when the custodial investigation becomes necessary.
- Or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond.
- The court was emphatic that a distinction must be made between the existence of the power to arrest and the justification for the exercise of this power.
Sanctions for arrest as outlined by the Supreme Court
The Supreme Court clarified that:
(A) Avoiding arrests
- Arrest isn’t a compulsion: Merely because an arrest can be made because it is lawful does not mandate that arrest must be made.
- Justification for arrest: A distinction must be made between the existence of the power to arrest and the justification for the exercise of it, it noted.
- Dignity of the undertrial: If an arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person.
- Evidence protection: There should not be a compulsion on the officer to arrest the accused since many times there is no apprehension that an accused would abscond or tamper with evidence.
(B) Broad implications of Sec. 170 CrPC
- Narrow interpretation: Section 170 of the Code of Criminal Procedure (CrPC) has been wrongly interpreted by the police and trial courts to make an arrest of the accused mandatory at the time of filing of the charge sheet.
- Custody, not arrest: The word “custody” in Section 170 had been wrongly interpreted as ‘arrest’.The word ‘custody’ appearing in Section 170 does not contemplate either police or judicial custody.
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Freedom of Speech – Defamation, Sedition, etc.
India at 75 is ready for a sedition-less future
From UPSC perspective, the following things are important :
Prelims level: Freedom of speech and restrictions on it
Mains level: Paper 2- Issues with Section 124A of Indian Constitution
Context
Chief Justice of India N V Ramana has ignited a passionate debate during a preliminary hearing concerning whether “sedition” should be an offence at all, and how to prevent its misuse or abuse, were it to remain
Issues with the sedition under Section 124A
- Against fundamental right: The meandering meanings of expressions such as “disaffection” towards the government, “hatred”, “contempt” etc. constitute an unreasonable restriction on the fundamental right to free expression guaranteed under Article 19(1)(a).
- Neither the framers of the Constitution nor the authors of the amended Article 19(2) included “sedition” as a ground for “reasonable restriction” to freedom of speech and expression.
- Colonial past: CJI Ramana in preliminary hearings has pointedly asked the Attorney General whether “sedition under Section 124A of the Indian Penal Code is still required after 75 years of independence from colonial rule.
- Prone to misuse: The lack of definition of terms used in the section leaves vide the scope for interpretation and thus rampant misuse and abuse.
Way forward
- Some law luminaries have found new stirrings of hope in the Supreme Court to strike it down.
- Find means to prevent misuse and abuse: Alternative way,as the learned attorney general observed is to find constitutional ways and practical means to prevent the abuse and misuse of law.
- Forbid rampant private complaints: A most immediate step is to forbid rampant private complaints by citizens and authorise only very senior police officials to take appropriate action.
Conclusion
What Gandhiji said — the law may not be used to “manufacture affection” under pain of a penal sanction — was as true then as it remains now. It is high time to realise that the law of “sedition” must go, even when it may strictly not even exist!
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Freedom of Speech – Defamation, Sedition, etc.
Surveillance reform is the need of the hour
From UPSC perspective, the following things are important :
Prelims level: Article 19 and 21
Mains level: Paper 3- Issues with surveillance by the government
Context
The ‘Pegasus Project’ report says that over “300 verified Indian mobile telephone numbers, including those used by ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, rights activists and others”, were targeted using spyware made by the Israeli firm, NSO Group.
Threat to press freedom
- Revelations highlight a disturbing trend with regard to the use of hacking software against dissidents and adversaries.
- A significant number of Indians reportedly affected by Pegasus are journalists.
- This is not surprising since the World Press Freedom Index produced by Reporters Without Borders has ranked India 142 out of 180 countries in 2021.
- The press requires (and in democracies is afforded) greater protections on speech and privacy.
- Privacy and free speech are what enable good reporting.
- This has been recognised in Supreme Court decisions.
- In the absence of privacy, the safety of journalists, especially those whose work criticises the government, and the personal safety of their sources is jeopardised.
- Such a lack of privacy, therefore, creates an aura of distrust around these journalists and effectively buries their credibility.
Issues with the legal provision
- Provisions of law under the Indian Telegraph Act of 1885 and the Information Technology (IT) Act of 2000 are used by the government for its interception and monitoring activities.
- While the provisions of the Telegraph Act relate to telephone conversations, the IT Act relates to all communications undertaken using a computer resource.
- Both provisions are problematic and offer the government total opacity in respect of its interception and monitoring activities.
- Section 69 of the IT Act and the Interception Rules of 2009 are even more opaque than the Telegraph Act, and offer even weaker protections to the surveilled.
- No provision, however, allows the government to hack the phones of any individual since the hacking of computer resources, including mobile phones and apps, is a criminal offence under the IT Act.
Issues with surveillance system
- Surveillance itself, whether under a provision of law or without it, is a gross violation of the fundamental rights of citizens.
- Violation of freedom of speech: The very existence of a surveillance system impacts the right to privacy and the exercise of freedom of speech and personal liberty under Articles 19 and 21 of the Constitution, respectively.
- It prevents people from reading and exchanging unorthodox, controversial or provocative ideas.
- No scope for judicial scrutiny: There is also no scope for an individual subjected to surveillance to approach a court of law prior to or during or subsequent to acts of surveillance since the system itself is covert.
- No oversight: In the absence of parliamentary or judicial oversight, electronic surveillance gives the executive the power to influence both the subject of surveillance and all classes of individuals, resulting in a chilling effect on free speech.
- Against separation of power: Constitutional functionaries such as a sitting judge of the Supreme Court have reportedly been surveilled under Pegasus.
- Vesting such disproportionate power with one wing of the government threatens the separation of powers of the government.
- The existing provisions are insufficient to protect against the spread of authoritarianism since they allow the executive to exercise a disproportionate amount of power.
Way forward
- There needs to be oversight from another branch of the government.
- Judicial oversight: Only the judiciary can be competent to decide whether specific instances of surveillance are proportionate, whether less onerous alternatives are available, and to balance the necessity of the government’s objectives with the rights of the impacted individuals.
- Surveillance reforms: Not only are existing protections weak but the proposed legislation related to the personal data protection of Indian citizens fails to consider surveillance while also providing wide exemptions to government authorities.
- Surveillance reform is the need of the hour in India.
Consider the question “Discuss the threats posed by the use of surveillance systems by the government. Suggest the measures to deal with these threats.”
Conclusion
The only solution to the problem of spyware is immediate and far-reaching surveillance reform.
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Freedom of Speech – Defamation, Sedition, etc.
Explained: Shreya Singhal case that struck down Section 66A of IT Act
From UPSC perspective, the following things are important :
Prelims level: Shreya Singhal Case
Mains level: Section 66A
Six years after it struck down Section 66A of the Information Technology Act, 2000, the Supreme Court earlier this month termed its continued use by law enforcement agencies of various states as “a shocking state of affairs” and sought a response from the Centre.
What did Section 66A do?
- Introduced in 2008, the amendment to the IT Act, 2000, gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.
- Section 66A empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc.
- It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.
- In 2015, the apex court struck down the law in the landmark case Shreya Singhal v. Union of India, calling it “open-ended and unconstitutionally vague”, and thus expanded the contours of free speech to the Internet.
Why was the law criticized?
- The problem was with the vagueness about what is “offensive”.
- The word having a very wide connotation was open to distinctive, varied interpretations.
- It was seen as subjective, and what might have been innocuous for one person, could lead to a complaint from someone else and, consequently, an arrest arbitrarily.
So, how did 66A come under the Supreme Court’s scrutiny?
- The first petition came up in the court following the arrest of two girls in Maharashtra by Thane Police in November 2012 over a Facebook post.
- The girls had made comments on the shutdown of Mumbai for the funeral of a political leader.
- The arrests triggered outrage from all quarters over the manner in which the cyber law was used.
- The petition was filed by Shreya Singhal, then a 21-year-old law student.
What were the grounds for the challenge?
- The objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media.
- The petitioners argued that Section 66A came with extremely wide parameters, which allowed whimsical interpretations by law enforcement agencies.
- Most of the terms used in the section had not been specifically defined under the Act.
- The law was a potential tool to gag legitimate free speech online and to curtail freedom of speech and expression guaranteed under the Constitution, going far beyond the ambit of “reasonable restrictions” on that freedom.
What did the Supreme Court decide?
- In March 2015, a bench of Justices J. Chelameswar and R.F. Nariman ruled in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).”
- Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.
- The decision was considered a landmark judicial pushback against state encroachment on the freedom of speech and expression.
- The bench also read down Section 79– now at the centre of the ongoing “intermediary liability” battle between the Centre and micro-blogging platform Twitter– defining key rules for the relationship between governments and commercial internet platforms.
- Section 79 says that any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.
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Freedom of Speech – Defamation, Sedition, etc.
Sedition Law and its discontents
From UPSC perspective, the following things are important :
Prelims level: Freedom of Speech
Mains level: Sedition law and Free speech
The CJI is now convinced that sedition law (IPC 124A) is being misused by the authorities to trample upon citizens’ fundamental rights of free speech and liberty.
What does Section 124A of the IPC say?
- The section deals with the offence of sedition, a term that covers speech or writing, or any form of visible representation, which brings the government into hatred or contempt, or excites disaffection towards the government, or attempts to do so.
- It is punishable with three years in prison or a life term.
- “Disaffection”, it says, includes disloyalty and feelings of enmity.
- However, it also says expressing disapproval of government measures or actions, with a view to getting them changed by lawful means, without promoting hatred or disaffection or contempt towards the government will not come under this section.
What is its origin?
- Colonial past: Sedition was introduced in the penal code in 1870, a decade after the Indian Penal Code came into force.
- It was a colonial law directed against strong criticism of the British administration.
- Putting curb on Freedom fighters: Its most famous victims included Bal Gangadhar Tilak and Mahatma Gandhi.
- Gandhi called it “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.
Is it constitutionally valid?
- Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
- Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
- Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
- At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
- Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.
Why the controversy now?
- Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
- Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
- Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
- Irrelevance: Many of them have also been detained under the National Security Act and UAPA.
What is being debated about it?
- Liberals and rights activists have been demanding the scrapping of Section 124A.
- It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
- The Law Commission has also called for a reconsideration of the section.
- It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
- Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.
What has the apex court observed?
- Justice D.Y. Chandrachud had flagged the indiscriminate use of the sedition law against people who aired their grievances about the government’s COVID management.
- People have been charged even for seeking help to gain medical access, equipment, drugs and oxygen cylinders, especially during the second wave of the pandemic.
- Justice U.U. Lalit, in his recent judgment, quashed a sedition case against a person for his alleged remarks about the PM and the Union Government.
Way forward
- The time is long past when the mere criticism of governments was sufficient to constitute sedition.
- The right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness, the CJI has recorded.
Try answering this PYQ:
Q.With reference to Rowlatt Satyagraha, which of the following statements is/are correct?
- The Rowlatt Act was based on the recommendations of the ‘Sedition Committee’.
- In Rowlatt Satyagraha, Gandhiji tried to utilize the Home Rule League.
- Demonstrations against the arrival of Simon Commission coincided with Rowlatt Satyagraha.
Select the correct answer using the code given below:
(a) 1 only
(b) 1 and 2 only
(c) 2 and 3 only
(d) 1, 2 and 3
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Freedom of Speech – Defamation, Sedition, etc.
Testing the constitutionality of section 124A of IPC
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Testing the constitutionality of section 124A
The article highlights the issues with section 124A of the Indian Penal Code and suggests a review of its constitutionality in Kedar Nath judgement by a larger bench.
About section 124A of IPC
- Section 124A of the IPC contains the law of sedition.
- This law was enacted by the British colonial government in 1870 with the sole object of suppressing all voices of Indians critical of the government.
- The gist of the offence is: bringing or attempting to bring the government into contempt or hatred, or exciting or attempting to excite disaffection towards the government.
- It categorises four ways sources of seditious acts: spoken words, written words, signs or visible representations.
- There are three explanations attached to this section.
- The first explanation says that ‘disaffection’ includes disloyalty and all feelings of enmity.
- The second and third explanations say that one can comment on the measures of the government without bringing or attempting to bring it into contempt or hatred or exciting or attempting to excite disaffection towards the government.
What did Supreme Court say in Kedar Nath case (1962)
- In the ultimate analysis, the judgment in Kedar Nath which read down Section 124A and held that without incitement to violence or rebellion there is no sedition.
- It says that ‘only when the words written or spoken etc. which have the pernicious tendency or intention of creating public disorder’ the law steps in.
- So if a policeman thinks that a cartoon has the pernicious tendency to create public disorder, he will arrest that cartoonist.
- The Kedar Nath judgment makes it possible for the law enforcement machinery to easily take away the fundamental right of citizens.
Violation of Article 19
- Sedition, as defined in Section 124A of the IPC, clearly violates Article 19(1)(a) of the Constitution which confers the Fundamental Right of freedom of speech and expression.
- Further, this section does not get protection under Article 19(2) on the ground of reasonable restriction.
- However, the Supreme Court invoked the words ‘in the interest … of public order’ used in Article 19(2) and held that the offence of sedition arises when seditious utterances can lead to disorder or violence.
- This act of reading down Section 124A brought it clearly under Article 19(2) and saved the law of sedition from being declared unconstitutional.
Consider the question “What are the issues with section 124A of Indian Penal Code? Examine the interplay between Article 19 and section 124 of IPC.”
Conclusion
People will display disaffection towards a government which has failed them. The law of sedition which penalises them for hating a government which does not serve them cannot exist because it violates Article 19(1)(a) and is not protected by Article 19(2). Therefore, an urgent review of the Kedar Nath judgement by a larger Bench has become necessary.
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Freedom of Speech – Defamation, Sedition, etc.
Protecting human rights in digital era
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Tackling disinformation
The article highlights the issues mentioned in the UNHRC report on disinformation and freedom of expression.
UNHRC Report: Upholding human rights helps dealing with falsehood
- The UN Human Rights Council (UNHRC) Special Rapporteur submitted her report on “Disinformation and Freedom of Opinion and Expression” recently.
- The UNHRC report specifically speaks of information disorder that arises from disinformation.
- Impact of disinformation: Such information disorder leads to politically polarisation, hinders people from meaningfully exercising their human rights, and destroys their trust in governments and institutions.
- Human rights provide a powerful and appropriate framework to challenge falsehoods and present alternative viewpoints.
- Upholding human rights is useful in dealing with falsehood in two ways:
- 1) Freedom of opinion and expression enables governance and development.
- 2) Civil society, journalists and others are able to challenge falsehoods and present alternative viewpoints.
- So, the report says that human rights friendly governance is both possible and doable; it is also desirable, as it protects political power against itself.
Review of the business model needed
- The report asserts that reactive content moderation efforts” are unlikely to make any worthwhile difference in the absence of a serious review of the business model that underpins much of the drivers of disinformation and misinformation.
- Problems of inconsistent application of companies’ terms of service, inadequate redress mechanisms and a lack of transparency and access to data re-emerge constantly.
- Aalthough the platforms are global businesses, they do not appear to apply their policies consistently across all geographical areas or to uphold human rights in all jurisdictions to the same extent.
Need for legislative clarity on twin concept of misinformation and disinformation
- The report highlights the lack of legislative and judicial clarity on the twin concepts of “disinformation” and “misinformation”.
- It emphasises that the intention to harm is decisive to the disinformation.
- “Disinformation” is false information disseminated intentionally to cause serious social harm.
- In contrast, misinformation consists in the dissemination of false information unknowingly.
- Nor are these terms to be used interchangeably.
- Acknowledging the fact that “extremist or terrorist groups” frequently engage in the dissemination as part of their propaganda to radicalise and recruit members, the report disfavours any state response that adds to human rights concerns.
Other factors contributing to growth of disinformation
- The growth of disinformation in recent times cannot be attributed solely to technology or malicious actors, according to the report.
- Other factors such as digital transformation and competition from online platforms, state pressure, the absence of robust public information regimes, and digital and media literacy among the general public also matter.
- Moreover, disinformation enhance the frustrations and grievances such as economic deprivation, market failures, political disenfranchisement, and social inequalities.
- Disinformation is thus not the “cause but the consequence of societal crises and the breakdown of public trust in institutions”.
- Strategies to address disinformation will succeed only when these underlying factors are tackled.
Issue of use of disinformation by states
- A 2020 Oxford study of “Industrialised Disinformation” mentions that as many as “81 governments” use “social media to spread computational propaganda and disinformation about politics”.
- Some authoritarian countries like Russia, China and Iran capitalised on coronavirus disinformation to amplify anti-democratic narratives.
- Online disinformation also results in offline practices of violent social excursion on actually existing individuals and communities such as ethnic, gender, migrant, sexual minorities.
Consider the question “Reactive content moderation efforts are simply inadequate without a serious review of the business model that underpins much of the drivers of disinformation and misinformation on the social media platforms.” Critically examine.”
Conclusion
Will future itineraries of human rights in the digital era repeat past mistakes? The report offers grist to the mill for profound thought and conscientious action.
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Freedom of Speech – Defamation, Sedition, etc.
A national consensus on removal of sedition law is called for
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Section 124-A issue
Is the government entitled to the love and affection of the citizens? Answer to this question lies in the Kedar Nath judgment recently invoked by the Supreme Court in a case against a journalist. The article deals with this issue.
About the Kedar Nath judgement
- A two-judge bench of the Supreme Court observed that every journalist is entitled to the protection under the Kedar Nath judgment (1962) on the petition filed by journalist Vinod Dua.
- The court entertained Dua’s writ petition under Article 32.
- In the Kedar Nath judgement, the apex court had held that a citizen has the right to say or write whatever he likes about the government or its measures by way of criticism so long as he does not incite people to violence against the government or with the intention of creating public disorder.
- Section 124A read along with explanations is not attracted without such an allusion to violence.
Increasing use of the sedition law
- NCRB data shows that between 2016 to 2019, there has been a whopping 160 per cent increase in the filing of sedition charges with a conviction rate of just 3.3 per cent.
- Of the 96 people charged in 2019, only two could be convicted.
- A number of CAA (Citizenship Amendment Act) protesters are facing sedition charges.
Background of Section 124-A
- Section 124-A was not a part of the original Indian Penal Code drafted by Lord Macaulay and treason was confined just to levying war.
- It was inserted in 1870 in response to the Wahabi movement that had asked Muslims to initiate jihad against the colonial regime.
- It was argued that Wahabis are going from village to village and preaching that it was the sacred religious duty of Muslims to wage a war against British rule.
Way forward
- In 2018, the Law Commission had recommended that the sedition law should not be used to curb free speech.
- Let the criminal law revision committee working under the Ministry of Home Affairs make the bold recommendation of dropping the draconian law.
- A political consensus needs to be forged on this issue.
Conclusion
No government, as Mahatma Gandhi told Judge R S Broomfield, has a right to love and affection and people in a free country committed to the liberty of thought and freedom of expression should not be criminally punished for expressing their opinion about the government.
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Freedom of Speech – Defamation, Sedition, etc.
Should Sedition law be scrapped?
From UPSC perspective, the following things are important :
Prelims level: Freedom of Speech
Mains level: Kedarnath Singh Guidelines
The Supreme Court has quashed the case of sedition filed against a journalist in Himachal Pradesh for allegedly making remarks against PM and the government’s handling of the migrant crisis during the Covid-19 lockdown last year.
What is the story?
- In a video, the journalist had criticized PM Modi and the Centre for the handling of the migrant crisis last year.
- A sedition case was filed against him under Section 124A of the IPC which penalizes sedition as punishable with either imprisonment ranging from three years to a lifetime, a fine, or both.
- He was charged for spreading misinformation or incorrect information and cause panic in the perception of the general public.
What has the court ruled?
- The case was quashed by SC. It held that his remarks constituted genuine criticism of the government and could not be labeled seditious.
- In doing so, the court also reiterated the principles in the landmark case on sedition — Kedar Nath Singh v Union of India (1962).
What are the Kedar Nath Singh guidelines?
- In the landmark 1962 Kedar Nath Singh case, the Supreme Court upheld the constitutional validity of the sedition law, it attempted to restrict its scope for misuse.
- The court held that unless accompanied by incitement or call for violence, criticism of the government cannot be labeled sedition.
Seven principles in the Kedar Nath Singh ruling specify situations in which the charge of sedition cannot be applied:
- The expression “ ‘the Government established by law’ has to be distinguished from the persons for the time being engaged in carrying on the administration. ‘Government established by law’ is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.”
- The effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of a tendency to public disorder by the use of actual violence or incitement to violence.
- Comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.
- A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.
- The provisions of the Sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.
- It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.
- The court proposed to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.
What has been the impact of that verdict?
- The significance of the verdict lies in the Supreme Court’s subsequent reiteration of the Kedar Nath Singh principles.
- A fresh constitutional challenge by two journalists against the sedition law pending before the Supreme Court, and the ruling in Dua’s case, make a strong case against keeping the colonial law in the books.
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Freedom of Speech – Defamation, Sedition, etc.
IBF to cover Streaming Platforms
From UPSC perspective, the following things are important :
Prelims level: Indian Broadcasting Foundation
Mains level: Self regulation by electronic media
The Indian Broadcasting Foundation (IBF), the apex body of broadcasters, is expanding its purview to cover digital streaming platforms and will be renamed the Indian Broadcasting and Digital Foundation (IBDF).
Why such a move?
- The move would bring broadcasters and OTT (over-the-top) platforms, which have seen a substantial jump in their viewership base after the pandemic, under one roof.
- For this, the IBDF was in the process of forming a new wholly-owned subsidiary to handle all matters of digital media, an official statement said.
- The IBDF would also form a self-regulatory body, the Digital Media Content Regulatory Council (DMCRC), for digital OTT platforms.
Indian Broadcasting Foundation
- The IBF is a unified representative body of television broadcasters in India.
- The organization was founded in the year 1999. Over 250 Indian television channels are associated with it.
- The organization is credited as the spokesman of the Indian Broadcasting Industry.
- The IBF is the parent organization of the Broadcasting Content Complaints Council (BCCC) which was set up in the year 2011.
- The BCCC examines content-related complaints relating to all non-news general entertainment channels in India.
Note: The IBF has no statutory backing.
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Freedom of Speech – Defamation, Sedition, etc.
Panel to define offences of Speech, Expression
From UPSC perspective, the following things are important :
Prelims level: Not Much
Mains level: Hate Speech vs Free Speech
A panel constituted by the Union Home Ministry to suggest reforms to the British-era Indian Penal Code (IPC) is likely to propose a separate Section on “offences relating to speech and expression.”
Panel to define hate speech
- As there is no clear definition of what constitutes a “hate speech” in the IPC, the Committee for Reforms in Criminal Laws is attempting for the first time to define such speech.
- Legally speaking, for criminal Sections to be invoked, any such speech has to lead to violence or disturbance of law and order.
What constitutes Hate Speech?
- Hate speech can be defined as “public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation”.
- The word ‘hate speech’ as is a loaded term and merely criticizing someone is not hate speech.
- There has been much debate over freedom of speech, hate speech and hate speech legislation.
Indian attempts for definition
- The Bureau of Police Research and Development recently published a manual for investigating agencies on cyber harassment cases.
- It has defined hate speech as a language that denigrates, insults threatens or targets an individual based on their identity and other traits (such as sexual orientation or disability or religion etc.).
- Earlier in 2018, the Home Ministry had written to the Law Commission to prepare a distinct law for online “hate speech”.
- A committee was formed in the wake of Section 66A of the IT Act, 2000, which provided punishment for sending offensive messages through communication services.
- In 2019, however, the Ministry decided to overhaul the IPC, framed in 1860 and the Code of Criminal Procedure (CrPC) after seeking suggestions from various stakeholders.
Recommendations of various committees
- The Viswanathan committee proposed inserting Sections 153 C (b) and Section 505 A in the IPC for incitement to commit an offence on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe.
- It proposed punishment by up to two years along with ₹5,000 fine.
- The Bezbaruah Committee was constituted by the Centre in February 2014 in the wake of series of racial attacks on persons belonging to the northeast.
- It proposed amendment to Section 153 C IPC (promoting or attempting to promote acts prejudicial to human dignity), punishable by five years and fine or both and Section 509 A IPC (word, gesture or act intended to insult a member of a particular race), punishable by three years or fine or both.
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Freedom of Speech – Defamation, Sedition, etc.
India retains 142 of 180 spot in World Press Freedom index
From UPSC perspective, the following things are important :
Prelims level: World Press Freedom Index
Mains level: Paper 2- Freedom of press in India
Where India stands on freedom of press
- India is ranked at 142 out of 180 countries on the World Press Freedom Index 2021.
- India at142th position is same as last year, after it had consistently slid down from 133 in 2016.
- In the South Asian neighbourhood, Nepal is at 106, Sri Lanka at 127, Myanmar (before the coup) at 140, Pakistan at 145 and Bangladesh at 152.
- The index is published by the international journalism not-for profit body, Reporters Without Borders (RSF).
- China is ranked 177, and is only above North Korea at 179 and Turkmenistan at 178.
What the report said about India
- The report released on Tuesday stated that India shares the “bad” classification with Brazil, Mexico and Russia.
- RSF has highlighted that the “campaigns are particularly violent when the targets are women”.
- Further, it said that criminal prosecutions are meanwhile “often used to gag journalists critical of the authorities” with sections for sedition also used.
- Speaking about the larger Asia-Pacific region, the report mentioned that “instead of drafting new repressive laws in order to impose censorship, several of the region’s countries have contented themselves with strictly applying existing legislation that was already very draconian – laws on ‘sedition,’ ‘state secrets’ and ‘national security’.”
- The report has also highlighted throttling of freedom of expression on social media, and specifically mentioned that in India the “arbitrary nature of Twitter’s algorithms also resulted in brutal censorship”
Measures adopted by India to improve ranking
- The Indian government has been concerned about its low rankings in such international indices, and had last year started studying them to understand how to improve.
- Soon after the index was released last year, Union Minister for Information and Broadcast had tweeted on May 2: “Media in India enjoy absolute freedom.”
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Freedom of Speech – Defamation, Sedition, etc.
Film Certification Appellate Tribunal (FCAT)
From UPSC perspective, the following things are important :
Prelims level: FCAT
Mains level: Not Much
The Government of India’s decision to abolish the Film Certification Appellate Tribunal (FCAT), under the Tribunal Reforms Ordinance, 2021, has triggered a wave of criticism with filmmakers.
The FCAT was the place filmmakers walked into as a penultimate resort to challenging edits suggested to their films by the Central Board of Film Certification (CBFC).
Plunging into crisis
- FCAT is only one of many tribunals in the country that were either abolished or amalgamated under the Ordinance.
- Earlier, if a filmmaker fails to clear the Examining Committee (EC) and Revising Committee (RC) hurdles of the CBFC, the FCAT was the next step of recourse, but that is no longer the case.
- FCAT only charged a nominal fee to hold the screening for its members, and it would pass its judgment immediately.
Fighting the system
- FCAT’s panel is predominantly made up of members from industry veterans who arrive at a judgment after balancing both CBFC and the filmmaker’s points of view.
- Most of CBFC’s decisions were overruled by the Tribunal and that has reassured constitutional rights under Article 19 to filmmakers to express themselves freely.
- A judge will only look at the issue from a legal perspective, not whether a particular edit will constrict the flow of the movie.
Re-classifying certification
- To avoid such issues, the Government constituted the ‘Shyam Benegal Committee’ in January 2016.
- The committee recommended regulations for film certification — a move away from the current practice adopted by CBFC, and submitted its report in April 2016.
- According to many, a revamp of the certification system that doesn’t require censoring or cuts is the need of the hour.
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Freedom of Speech – Defamation, Sedition, etc.
The IT Rules 2021 seek regulatory parity, but threaten to curb creative freedom
From UPSC perspective, the following things are important :
Prelims level: Section 69A of IT Act
Mains level: Paper 2- Issues with the IT Rules 2021
The article argues that IT Rules 2021 far exceeds the rulemaking power granted under Section 69A of the IT Act.
Censoring online video streaming
- Online video streaming platforms have marked a new dawn for the Indian entertainment industry.
- The spectre of government regulation and criminalisation haunts this fledgling industry.
- There have been various efforts to censor online video streaming platforms by petitioning the courts for a long time.
- At least 23 petitions were being heard by different high courts on the issue of regulation of online video streaming platforms.
- The grievances range from wounded religious sentiments to moral outrage against depictions of sexuality but the common thread that unites them is a desire to control what other citizens may watch in the privacy of their homes.
- In addition to petitions seeking heavy-handed regulation, criminal proceedings have been initiated against employees of companies like Netflix and Amazon Prime.
- While such FIRs may be in the context of specific films or shows, they cause substantial harassment and threaten the personal liberty of content creators and company executives.
IT Rules 2021 exceeds the rulemaking power under Section 69A of IT Act
- The imposition of any kind of criminal liability under the IT Rules 2021 would far exceed the central government’s rule-making power under Section 69A of the IT Act.
- The existing three-tier regulatory mechanism and content classification system prescribed under the rules are also unconstitutional for the same reason.
- The following three issues need to be considered while considering the IT Rules 2021.
- First, the powers under Section 69A can be exercised only in the interest of the sovereignty, defence, security of the State, friendly relations with foreign States or public order or for preventing incitement etc.
- The implication is that the powers under Section 69A cannot be used to regulate online content which may be obscene or sexually explicit.
- Second, Section 69A states that the central government may direct “any agency of the Government or intermediary” to block access to online content but online video streaming platforms do not fall into either of these two categories.
- Companies like Netflix and Amazon Prime commission or license the films and shows available on their platforms, and they are not an “intermediary” under the IT Act.
- Third, Section 69A only grants the central government the power to “block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.”
- However, the range of powers granted under the IT Rules 2021 is much broader and includes requiring an apology or disclaimer, re-classification of content and deletion or modification of content.
- As a result, the IT Rules 2021 significantly expand the scope of powers available under Section 69A.
Issues with the three-tier regulatory framework
- The three-tier regulatory framework created under the rules suffers from the substantive problem of lack of independence.
- The third tier, which is the Inter-Departmental Committee, comprises entirely of bureaucrats and there is no guaranteed representation from the judiciary or civil society.
- The Review Committee constituted under Rule 419A of the Indian Telegraph Rules, 1951 also solely consists of officials belonging to the executive branch.
Way forward
- The solution is to start afresh with publication of a white paper which clearly outlines the harms that are sought to be addressed through regulation of online video streaming platforms and meaningful public consultation which is not limited to industry representatives.
- If regulation is still deemed to be necessary, then it must be implemented through legislation that is debated in Parliament instead of relying upon Section 69A of the IT Act.
Consider the question “The IT Rules 2021 have been criticised for exceeding the rulemaking power under Section 69A of the IT Act. Examine the scope of the criticism.”
Conclusion
Many of the changes that the central government seeks to implement through the IT Rules 2021 may be well-intentioned and desirable. However, constitutional due process cannot be sacrificed at the altar of expediency
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Freedom of Speech – Defamation, Sedition, etc.
[pib] India’s rebuttal to Freedom House Report
From UPSC perspective, the following things are important :
Prelims level: Freedom of speech
Mains level: Free speech related issues
The Freedom House report titled “Democracy under Siege” in which it has been claimed that India’s status as a free country has declined to “partly free”, is misleading, incorrect, and misplaced.
The US who claims to be the champion of Human Rights has turned another sermon to India through its Freedom House Report. This report presents an inherently flawed and biased analysis of Indian democracy.
Rebuttal to specific points
(1) Discriminatory policies against Minorities
- The GoI treats all its citizens with equality as enshrined under the Constitution of the country and all laws are applied without discrimination.
- Due process of law is followed in matters relating to law and order, irrespective of the identity of the alleged instigator.
- With specific reference to the North East Delhi riots in February 2020, the law enforcement machinery acted swiftly in an impartial and fair manner.
- Proportionate and appropriate actions were taken to control the situation.
- Necessary legal and preventive actions were taken by the law enforcement machinery on all complaints/calls received, as per law and procedures.
(2) Use of Sedition Law
- “Public Order’ and ‘Police’ are State subjects under India’s federal structure of governance.
- The responsibility of maintaining law and order, including investigation, registration, and prosecution of crimes, protection of life and property, etc., rests primarily with the concerned State governments.
- Therefore, measures as deemed fit are taken by law enforcement authorities to preserve public order.
(3) Government response to COVID-19 through Lockdown
- Between March 16 to 23, most State governments/UT resorted to partial or full Lockdown in their respective State/ UT based on their assessment of the COVID-19 situation.
- Any mass movement of people would have spread the disease rapidly throughout the country.
- The government was fully conscious that during the period of an inevitable Lockdown, people should not face undue distress.
- India has, on a per capita basis, registered one of the lowest rates of active COVID-19 cases and COVID-19 related deaths globally.
(4) Government response on human rights organizations
- The Indian Constitution provides for adequate safeguards under various statutes, including the Protection of Human Rights Act 1993 for ensuring the protection of human rights.
- This Act provides for the constitution of an NHRC and SHRC in the States for better protection of human rights and for matters connected to this subject.
(5) Intimidation of academics and journalists and crackdown on expressions of dissent by media
- The Indian Constitution provides for freedom of expression under Article 19. Discussion, debate, and dissent are a part of Indian democracy.
- The GoI attaches the highest importance to the safety and security of all residents of the country, including journalists.
- It has issued a special advisory to States and UTs on the safety of journalists requesting them to strictly enforce the law to ensure the safety and security of media persons.
(6) Internet shutdowns
- Temporary suspension of the telecom services, including the internet, is governed under the provisions of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
- Hence, the temporary suspension of telecom/internet services is resorted to with the over-arching objective of maintaining law and order under strict safeguards.
(7) FCRA amendment leading to freezing of Amnesty International’s assets has led to declining in ranking
- Amnesty International had received permission under the FCRA Act only once and that too 20 years ago.
- Since then Amnesty International, despite its repeated applications, has been denied FCRA approval by successive governments since as per law it is not eligible to get such approval.
- However, in order to circumvent the FCRA regulations, Amnesty U.K. remitted large amounts of money to four entities registered in India, by misclassifying the remittance as FDI.
- A significant amount of foreign money was also remitted to Amnesty India without MHA’s approval under FCRA.
- This malafide rerouting of money was in contravention of extant legal provisions.
- Owing to these illegal practices of Amnesty, the previous government had also rejected the repeated applications of Amnesty to receive funds from overseas.
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Freedom of Speech – Defamation, Sedition, etc.
Freedom in the World Report, 2021
From UPSC perspective, the following things are important :
Prelims level: Freedom of speech
Mains level: Free speech related issues
US-based human rights watchdog Freedom House has accused the present government of driving India toward authoritarianism with a lockdown scapegoating of minorities and a crackdown on critics, and downgraded India’s status from ‘Free’ to ‘Partly Free’, in its annual report.
Freedom in the World Report
- It is Freedom House’s flagship annual report, assessing the condition of political rights and civil liberties around the world.
- It is composed of numerical ratings and supporting descriptive texts for 195 countries and 15 territories.
- The report has been published since 1973, allowing Freedom House to track global trends in freedom over more than 40 years.
- Freedom House, which is largely funded through U.S. government grants, has been tracking the course of democracy since 1941.
What did the report say?
Political and civil rights
- India’s freedom score, calculated using indicators of political rights and civil liberties, dropped four points to 67 this year, pulling the country down into the ‘Partly Free’ category.
- India appears to have abandoned its potential to serve as a global democratic leader, elevating narrow nationalist interests at the expense of its founding values of inclusion and equal rights for all.
Reference to Kashmir
- In a year when social media censorship has been hotly seated, while the government shut down Internet connectivity in Kashmir as well as on Delhi’s borders, India’s Internet freedom score dropped to just 51.
Crackdown on protesters
- Last year, the government intensified its crackdown on protesters opposed to a discriminatory citizenship law and arrested dozens of journalists who aired criticism of the official pandemic response.
Judicial Independence
- It noted that judicial independence had also come under strain.
- It pointed to the case of a Delhi HC judge who was transferred immediately after reprimanding the police for taking no action during riots in the capital that leftover 50 people dead.
Religious freedom
- Minorities were disproportionately blamed for the spread of the virus and faced attacks by vigilante mobs.
- Uttar Pradesh’s law prohibiting forced religious conversion through interfaith marriage was also listed as a concern.
Rising Authoritarianism
- Rather than serving as a champion of democratic practice and a counterweight to authoritarian influence from countries such as China, the government is tragically driving India itself toward authoritarianism, the report stated.
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Freedom of Speech – Defamation, Sedition, etc.
The IT Act new rules and the challenge of Big Tech
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Issues with new Rules under IT Act
The article discusses the issues with the new rules issues under the IT Act.
Issues with the new rules
1) No discussion
- Last week, the Union Government issued a set of rules under the Information Technology Act, superseding rules issued under Section 79 of that statute in 2011.
- This has happened in the absence of open and public discussion and without any parliamentary study and scrutiny.
2) Concerns over legal basis
- The Union Government has chosen to pass these rules under the requirement to outline the due diligence that Internet intermediaries have to follow in order to be able to claim their qualified legal immunity under Section 79 of the IT Act.
- These rules at the outset appear unlawful even with respect to whether they could have been issued under the Information Technology Act in the manner chosen by the government, leave alone their constitutionality with respect to fundamental rights.
- The government’s gazette notification has further claimed that the rules were also issued under the legal authority to specific procedure for blocking web content under Section 69A of the IT Act.
- However, rules overseeing government web content blocking powers have already been issued for that section in 2009, and not superseded.
3) Using rule making power to issue primary legislation
- The ability to issue rules under a statute — i.e. to frame subordinate legislation — is by its nature a limited, constrained power.
- The executive branch is subordinate to what Parliament has permitted it and cannot use its rule-making power to seek to issue primary legislation by itself.
- With the present Internet content and social media rules, the Union Government has done precisely that.
- The executive branch has created new rules that apply only to “significant social media intermediaries” — a term that appears nowhere in the Information Technology Act.
- The rules have grown to include a chapter on how digital news sites have to be registered before the Ministry of Information and Broadcasting.
- However, digital news service registration is not required under the IT Act and streaming video content has not been included under the ambit of the Cinematograph Act.
Consider the question “What are the challenges in the regulation of Big Tech to democracies? Suggest the measures to deal with these challenges.”
Conclusion
Instead of advancing Internet content control, India needs to advancing surveillance law reform or enacting a strong statutory data protection framework.
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Freedom of Speech – Defamation, Sedition, etc.
Big tech regulation and problems
From UPSC perspective, the following things are important :
Prelims level: Not much
Mains level: Paper 2- Regulation of Big tech and challenges
Article highlights the issues with the growing dominance of social media giants and challenges involved in regulating them.
Issues to consider
1) Conflict of interest
- Many of the big tech companies were not, as they claimed, mere platforms.
- This is because they began to curate and generate their own content, creating possible conflicts of interest.
2) Monopoly power
- There is a suspicion that big tech companies were acquiring more monopoly power leading to lack of free competition.
- There is a conjunction of technology and finance here.
- The more companies were valued, the more they needed monopoly rent extraction to be able to justify those valuations.
3) Lack of accountability in algorithms
- There was an irony in an opaque algorithm being the instrument of a free, open and equitable society.
4) Mixed implications for distribution of wealth
- While the companies had immense economic impact, their distributive implications were more mixed.
- They empowered new players, but they also seem to destroy lots of businesses.
- These companies themselves became the symbol of inequality of economic and political power.
5) Lack of accountability and standards in regulating free speech
- Big tech companies set themselves up almost as a sovereign power.
- This was most evident in the way they regulated speech, posing as arbiters of permissible speech without any real accountability or consistency of standards.
- The prospect of a CEO exercising almost untrammelled authority over an elected president only served to highlight the inordinate power these companies could exercise.
6) Effects of big tech on democracy and democratisation
- The social legitimacy of California Libertarianism came from the promise of a new age of democratic empowerment.
- But as democracies became more polarised, free speech more weaponised, and the information order more manipulated, greater suspicion was going to be cast on this model.
- All democracies are grappling with this dilemma.
Big tech in Indian context
- India will justifiably worry about its own economic interests.
- India will be one of the largest bases of internet and data users in the world.
- The argument will be that this should be leveraged to create iconic Indian companies and Indian value addition.
- India can create competition and be more self-reliant in this space.
- Pushing back against big tech is not protectionism, because this pushback is to curb the unfair advantages they use to exploit an open Indian market.
- India can also justifiably point out that in China keeping out tech companies did not make much of a difference to financial flows or investment in other areas.
The real challenge
- It will be important to distinguish between regulations that are solving some real problems created due to Big tech, and regulation that is using this larger context to exercise more control.
- It will be easier to address those issues if the government showed a principled commitment to liberty, commitment to root out crony capitalism, an investment in science and technology commensurate with India’s challenges, and a general regulatory independence and credibility.
Consider the question “What are the challenges posed by the dominance of social media giants? Suggest the measures to deal with these challenges.”
Conclusion
We should not assume that just because big tech is being made to kneel, the alternative will be any better.
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Freedom of Speech – Defamation, Sedition, etc.
Contours of Twitter-government faceoff
From UPSC perspective, the following things are important :
Prelims level: IT Act
Mains level: Paper 2- Section 69A of IT Act and issues with it
What is the faceoff about
- Recently, Indian government issued direction to Twitter, ordering it to shut down user accounts connected with farmers’ protests.
- The government has to exercise powers under Section 69A of the Information Technology Act to block user accounts critical of the farm bills.
- The accounts which were sought to be censored are back online.
- This is due to Twitter’s evident refusal to comply with the directions after a constitutional appraisal.
- It has, as per press statements, cited the doctrine of proportionality in its defence.
Concerns with the directive
- This direction presents a clear breach of fundamental rights but also reveals a complex relationship between the government and large platforms on the understanding of the Constitution of India.
- The specific legal order issued is secret.
- This brings into focus the condition of secrecy that is threshold objection to multiple strands of our fundamental rights.
- It conflicts against the rights of the users who are denied reasons for the censorship.
- Secrecy also undermines the public’s right to receive information, which is a core component of the fundamental freedom to speech and expression.
- This is an anti-democratic practice that results in an unchecked growth of irrational censorship but also leads to speculation that fractures trust.
- The other glaring deficiency is the complete absence of any prior show-cause notice to the actual users of these accounts by the government.
- This is contrary to the principles of natural justice.
- This again goes back to the vagueness and the design faults in the process of how directions under Section 69A are issued.
Constitutionality of Section 69A of IT Act
- The secrecy clause represents a failure on the part of the Union executive, which framed the process for blocking websites in 2009.
- he Supreme Court also failed to substantively examine the clause.
- This is despite the opportunity offered by its celebrated judgment Shreya Singhal v. Union of India, when it struck down Section 66A of the IT Act as unconstitutional.
- At the same time, the court stated in Shreya Singhal, that an aggrieved party could approach a court for remedy if their website or user account was blocked under Section 69A.
- More recently, the court, when adjudicating the constitutional permissibility of the telecommunications shutdown in Jammu and Kashmir by its judgment in Anuradha Bhasin v. Union of India directed pro-active publication of all orders for internet shutdowns.
- After this, a decent argument may be made that directions for blocking now need to be made public.
- However, several state governments are actively refusing compliance on the publication of orders on internet shutdowns.
Consider the question “Use of Section 69 of the IT Act to suspend the account of the users on a social media platform has raised concern. Examine these concerns.”
Conclusion
The episode leaves a sense of confusion and wonder about why our own government formed under the Constitution may be failing to fulfil its obligations when strangers who trade in our data for profit are seemingly more eager.
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Freedom of Speech – Defamation, Sedition, etc.
OTT players adopt ‘toolkit’ for self-regulation
From UPSC perspective, the following things are important :
Prelims level: OTT
Mains level: Need for OTT media regulation
Online streaming providers have announced the adoption of an ‘implementation toolkit’, under the aegis of the Internet and Mobile Association of India (IAMAI).
What is the news?
- Various OTT platforms say that this is in furtherance to the Universal Self-Regulation Code the body had introduced in September.
- The government had rejected this USRC code.
Q.What is Over the Top (OTT) media services? Critically analyse the benefits and challenges offered by the OTT media services in India.
What are OTT Media?
- An over-the-top (OTT) media service is a streaming media service offered directly to viewers via the Internet.
- OTT bypasses cable, broadcast, and satellite television platforms, the companies that traditionally act as a controller or distributor of such content.
- The term is most synonymous with subscription-based video-on-demand (SVoD) services that offer access to film and television content.
- They are typically accessed via websites on personal computers, as well as via apps on mobile devices (such as smartphones and tablets), digital media players, or televisions with integrated Smart TV platforms.
Regulating OTT
- Currently, there is no law or autonomous body governing digital content. The recent move will give the government control over OTT platforms, which were unregulated till now.
- From time to time, the government had indicated the necessity to monitor these platforms.
- In October 2019, the government had indicated that it will issue the “negative” list of don’ts for the video streaming services like Netflix and Hotstar.
- It also wanted the platforms to come up with a self-regulatory body on the lines of the News Broadcasting Standards Authority.
What is the toolkit about?
- The effort of the signatories, through this toolkit, is to also address feedback received from the ministry of information and broadcasting inter-alia, on the issues of conflict of interest and prohibited content.
The all-inclusive implementation toolkit will assist signatories in a seamless transition to self-regulation and guide them on various dimensions like:
- Relevant laws of the land which will be adhered to by the signatories
- Fair and transparent functioning of the grievance redressal mechanism, with escalation to an advisory panel with independent members
- Training programs for creative and legal teams of OCCPs to enhance the knowledge and nuances of laws that govern content
- Awareness programs for consumers to help increase understanding and use of age rating, content descriptor & parental controls
- Implementation of a detailed audit and compliance mechanism
Why such code?
- The code comes into force at a time when the government has put OTT platforms on the anvil of content regulation after a spate of complaints on the ‘sensitive’ and ‘objectionable’ nature of certain shows.
- Earlier this week, I&B minister has assured the Parliament that guidelines for the regulation of OTTs have been practically hammered out and will be implemented soon.
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Freedom of Speech – Defamation, Sedition, etc.
Petition in SC seeks Guidelines for Electronic Media
From UPSC perspective, the following things are important :
Prelims level: Article 19(2)
Mains level: Free speech related issues
The Supreme Court has decided to examine a petition seeking the framing of guidelines outlining the broad regulatory paradigm within which the right to free speech of broadcasters and electronic media can be judicially regulated.
What is the petition about?
- The petition wants the court to consider substantial questions of law, including whether the electronic media enjoys greater freedom than ordinary citizens and whether they could only be subject to self-regulation.
- It has questioned whether free speech entails misinformation, fake news, hate speech, propaganda, paid news, communal and derogatory reportage, incitement, etc.
- It has asked whether regulation will amount to the curtailment of the Press if done within the parameters specified under “reasonable restrictions” of Article 19(2) of the Constitution.
- The plea said the right to life and dignity envisaged the right of citizens to “free, fair and proportionate media reporting”.
What is Article 19(2)?
- This article authorizes the government to impose, by law, reasonable restrictions upon the freedom of speech and expression “in the interests of… public order.”
- To understand the Supreme Court’s public order jurisprudence, it is important to break down the sub-clause into its component parts and focus upon their separate meanings.
- Specifically, three terms are important: “reasonable restrictions”, “in the interests of”, and “public order”.
- Clause (2) enables the legislature to impose certain restrictions on free speech under the following heads:
- Security of the State
- Friendly relations with foreign states
- Public order
- Decency and morality
- Contempt of court
- Defamation
- Incitement to an offense and
- Sovereignty and integrity of India
- Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.
The task before the court
- The principal issue before the court is to bring about a balance between the right to freedom of speech and the expression of the media and various other rights.
- These include the competing right to information of the citizenry, the right to reputation and dignity as well as the interest of preserving peace and harmony in the nation.
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Freedom of Speech – Defamation, Sedition, etc.
Back in news: Right to Protest
From UPSC perspective, the following things are important :
Prelims level: Art. 19
Mains level: Right to Protest and limtations over it
The Supreme Court has that said farmers have a constitutional right to continue with their “absolutely perfect” protest as long as their dissent against the three controversial agricultural laws did not slip into violence.
Q.It is the abundant duty of the State to aid and limit the exercise of Right to Protest peacefully. Examine.
Right to Protest
- The right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.
- The Constitution of India provides the right of freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution.
- The Right to protest peacefully is enshrined in Article 19(1) (a) guarantees the freedom of speech and expression; Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
- Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms.
Reasonable restrictions do exist in practice
- Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter. They have to co-exist in mutual respect.
- The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.
- Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
- The present case was not even one of the protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters.
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Freedom of Speech – Defamation, Sedition, etc.
Issues with the regulation of digital media by government
From UPSC perspective, the following things are important :
Prelims level: Freedom of speech and expression
Mains level: Paper 2- Regulation of digital media and issues with it
The article deals with the recent decision of the government to regulate digital media through the Ministry of Information and Broadcasting and issues with it.
Regulating the press
- Recently, government put the online news and current affairs portals along with “films and audio-visual programmes made available by online content providers” under the Ministry of Information and Broadcasting.
- Through the move, government is clubbing the only sector of the media which has pre-censorship, namely films with the news media which has so far, at least officially, not been subject to pre-censorship.
- The move hijacks matters before the Supreme Court of India relating to freedom of the press and freedom of expression to arm the executive with control over the free press, thereby essentially making it unfree.
- It also hijacks another public interest litigation in the Supreme Court relating to content on “Over The Top” (OTT) platforms not being subject to regulation or official oversight to bring that sector too under the Ministry of Information and Broadcasting.
- The move creates an artificial distinction between the new-age digital media which is the media of the future, the media of the millennial generation — and the older print and TV news media.
Reasons given by the government and issues with it
- The explanation given is that the print media have the oversight of the Press Council of India and the TV media of the News Broadcasters Association (NBA).
- Therefore the digital media needed a regulatory framework — no less than that of the Ministry of Information and Broadcasting.
- However, there is no comparison between the Press Council of India and the NBA as professional bodies on the one hand and the Ministry of Information and Broadcasting on the other.
- The fate of the digital media under the control of the Ministry of Information and Broadcasting leaves little scope for hope.
Consider the question “Regulation of digital media while solving some chronic issues gives rise to concerns over the freedom of press and expression. In light of this, examine the need for regulation of digital media by government and issues in it.”
Conclusion
The government regulations would be counterproductive for both the media practitioner and the media entrepreneur and for the startups that have been the new vibrant face of contemporary journalism.
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Freedom of Speech – Defamation, Sedition, etc.
Contempt of Court and A-G’s consent
From UPSC perspective, the following things are important :
Prelims level: Contempt of Court and its types, AGI
Mains level: Free speech vs. Contempt of court
Attorney-General gave his consent for the initiation of criminal contempt proceedings against the stand-up comedian for his tweets following a Supreme Court’s decision to grant interim bail to a news anchor.
Note important power, functions and limitations of AGI. A bluff can be created with the dicey statements in the prelims.
Also read:
What is Contempt of Court?
- According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
- Civil contempt means wilful disobedience of any judgment, decree, direction, order, writ or another process of a court, or wilful breach of an undertaking given to a court.
- Criminal contempt, on the other hand, is attracted by the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:
(i) Scandalizes or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner
- In 2006, the government brought in an amendment, which now provides “truth” as defence provided it is bona fide and in the public interest.
Why is the A-G’s consent needed to initiate contempt proceedings?
- In cognizance of criminal contempt, The Contempt of Courts Act, 1971 has a provision under Subsection 1 of Section 15.
- It reads that- in the case of criminal contempt, (other than contempt in the face of the Supreme Court or a High Court), the related court may take action on its own motion or on a motion made by (a) the Advocate-General, or (b) any other person, with the consent in writing of the Advocate-General.
Back2Basics: Attorney General of India (AGI)
- The AGI is the Indian government’s chief legal advisor and is a primary lawyer in the Supreme Court of India.
- They can be said to be the advocate from the government’s side.
- They are appointed by the President of India on the advice of Union Cabinet under Article 76(1) of the Constitution and holds office during the pleasure of the President.
- They must be a person qualified to be appointed as a Judge of the Supreme Court ( i.e. a judge of some high court for five years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the President and must be a citizen of India.).
Functions and duties
- The AGI is necessary for advising the Government of India on legal matters referred to them.
- They also perform other legal duties assigned to them by the President.
- The AGI has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
- The AGI appears on behalf of Government of India in all cases (including suits, appeals and other proceedings) in the Supreme Court in which GoI is concerned.
- They also represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
- The AG is assisted by a Solicitor General and four Additional Solicitors General.
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Freedom of Speech – Defamation, Sedition, etc.
Pondering on the free speech
From UPSC perspective, the following things are important :
Prelims level: Right of free speech
Mains level: Paper 2- Free speech and violence
The article discusses the issues with blaming the expression of free speech for the violence inflicted by the people opposed to the ideas.
Context
- The beheading of a teacher in France has brought to the fore the issue of free speech.
- It is argued that there is a need to respect people’s religion and not be provocative in the aftermath of the gruesome killing.
Issues related to free speech
1) Free-speecher’s burden
- The fact that a barbaric, crazy man can either get offended or inspired by either of the conflicting ideas cannot be a “free-speecher’s” burden.
- Should any protest or campaign be mindful of a potential violent twist that may be given to their ideas?
- Should a causal link between the expression of “offensive ideas” and sufferance of bodies allow violent zealots to hold the right to ransom?
2) Existence of ideas in person
- Ideas have no real, independent existence outside of the bodies in which they inhere.
- Had ideas lived autonomously, independent of the bodies and minds that carry them, ideas would not die.
- But we don’t. And the reason is that some ideas die or weaken over time.
- They become anomalous and discredited either because they are disputed scientifically or because they are contested vigorously and passionately till an anachronistic idea is defeated.
3) Ideas could be good or bad
- In the conflicting terrain of ideas, lies the kernel of social change.
- Ideas could be good or bad.
- How else, except through a conflict of ideas, do women contest patriarchy and push back on received gendered ideas of womanhood?
Issues with arguing on free-speech outside context
- First, as academic Ghassan Hage summed up in his Facebook post: Truth also needs to have its ethics.
- You may be truthful, but unethical.
- The beheading of French teacher requires us to dwell on not just any killing but the barbarism behind it.
- To dwell instead on the genealogies and causes of violent behaviour is bad ethics, for it ends up being nothing more than an apologia for violence.
- Second, it’s bad politics.
- The right to free speech empowers and enables many marginalised lives.
- It is a basic right that preconditions the realisation of other rights.
- So basic that it enables the weak and the oppressed to rise against their oppressors.
Conclusion
In any case, free speech is restrained by the state through its many criteria of “reasonableness”. To further circumscribe it by burdening it with plausible violent appropriations, or with historical conditionalities, is to feed the logic of violence against freedom of expression.
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Freedom of Speech – Defamation, Sedition, etc.
Right to Protest
From UPSC perspective, the following things are important :
Prelims level: Right to Protest
Mains level: Right to Protest and restrictions over it
The Supreme Court has found the indefinite “occupation” of a public road by the Shaheen Bagh protestors unacceptable.
Right to Protest
- The right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.
- The Constitution of India provides the right of freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution.
- The Right to protest peacefully is enshrined in Article 19(1) (a) guarantees the freedom of speech and expression; Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
- Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms.
What did the Court say?
- The court said the protest, considered an iconic dissent mounted by mothers, children and senior citizens of Shaheen Bagh against the Citizenship (Amendment) Act, became inconvenient to commuters.
- The judgment upheld the right to peaceful protest against the law but made it unequivocally clear that public ways and public spaces cannot be occupied, and that too indefinitely.
- Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
- The present case was not even one of the protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters.
Reasonable restrictions do exist in practice
- Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter. They have to co-exist in mutual respect.
- The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.
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Freedom of Speech – Defamation, Sedition, etc.
Tweets against CJI amounts to Criminal Contempt
From UPSC perspective, the following things are important :
Prelims level: Contempt of Court and its types
Mains level: Contempt of Court and associated issues
A three-judge Bench of the Supreme Court has found a famous civil rights lawyer guilty of criminal contempt by ‘scandalizing the court’.
Try this question for mains:
Q.What is Contempt of Court? Discuss, how free speech can lead to the contempt of courts?
Contempt of Court
- According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
- Civil contempt means willful disobedience to any judgment, decree, direction, order, writ or another process of a court or willful breach of an undertaking given to a court.
- On the other hand, criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which
- Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
- Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
- Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
What did the court rule in this case?
- The tweets had the effect of attempting to destabilize Indian democracy.
- A defamatory publication concerning “the judge is a serious impediment to justice”.
- The court could not ignore the disrespect and disaffection created by the “scurrilous” tweets.
- If such an attack is not dealt with a requisite degree of firmness, it may affect the national honour and prestige in the comity of nations.
A suo motu action
- The prior consent of the Attorney General (AG) of India is not required to suo motu initiate the inherent contempt powers of the Supreme Court.
- The Contempt of Court Act of 1971 cannot limit this power of the court. The statute only provides the procedure in which such contempt is to be initiated.
- The suo motu contempt powers of the top court are drawn from Article 129 of the Constitution, which says the Supreme Court, as a court of record, has the power to punish for contempt of itself.
What would be the penalty?
- The Contempt of Court Act of 1971 punishes with imprisonment that may extend to six months or fine of ₹ 2,000 or both.
- This is provided in case the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.
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Freedom of Speech – Defamation, Sedition, etc.
Highlights of the World Press Freedom Index, 2020
From UPSC perspective, the following things are important :
Prelims level: Highlights of the report
Mains level: Freedom of Press
India has dropped two places on a global press freedom index to be ranked 142nd out of 180 countries in the annual World Press Freedom Report.
Press freedom especially after the abrogation of Art. 370 in J&K was profoundly debated back then. We can expect a mains question like-
“Reasonable restrictions to the freedoms enjoyed by media are necessary while addressing the concerns of national security. Critically comment.”
World Press Freedom Index
- The Press Freedom Index is an annual ranking of countries compiled and published by Reporters Without Borders.
- It is based upon the organization’s own assessment of the countries’ press freedom records.
- It intends to reflect the degree of freedom that journalists, news organisations, and netizens have in each country, and the efforts made by authorities to respect this freedom.
- The report is partly based on a questionnaire which asks questions about pluralism media independence, environment and self-censorship, legislative framework, transparency, and infrastructure.
Highlights on India
- The report said that with no murders of journalists in India in 2019, as against six in 2018.
- However, there have been constant press freedom violations, including police violence against journalists, ambushes by political activists, and reprisals instigated by criminal groups or corrupt local officials.
Global scenario
- Norway is ranked first in the Index for the fourth year running.
- India ranked better than its neighbours Pakistan (145) and Bangladesh (151), but worse than Sri Lanka (127) and Nepal (112).
- China at 177th position is just three places above North Korea, which is at 180th.
Various threats to press freedom
- Across the world, press freedom is under pressure from aggressive authoritarian regimes.
- The media is also facing a technological crisis, due to a lack of democratic guarantees and a democratic crisis following polarization and repressive policies, the report reads.
- In addition comes a crisis of trust following growing suspicion and even hatred of the media, and an economic crisis and impoverishing of quality journalism.
- Among other issues, the report has listed coordinated social media hate campaigns against journalists reporting on issues that “annoy right-wing followers”, criminal prosecutions to gag journalists critical of authorities and police violence against journalists.
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Freedom of Speech – Defamation, Sedition, etc.
Freedom in the World 2020
From UPSC perspective, the following things are important :
Prelims level: Freedom in the World Report
Mains level: Read the attached story
India has become one of the world’s least free democracies, according to a global survey.
Freedom in the World Report
- It is a yearly survey and report by the U.S. based non-governmental organization Freedom House.
- It measures the degree of civil liberties and political rights in every nation and significant related and disputed territories around the world.
- The report derives its methodology from the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948.
- It covers 195 countries, awarding scores based on political rights indicators such as the electoral process, political pluralism and participation and government functioning, as well as civil liberties indicators related to freedom of expression and belief associational and organisational rights, the rule of law and personal autonomy and individual rights.
Highlights of the report
Deteriorating freedom in India
- The report ranks India at the 83rd position, along with Timor-Leste and Senegal.
- This is near the bottom of the pile among the countries categorised as “Free”.
- India’s score fell by four points to 71, the worst decline among the world’s 25 largest democracies this year.
- India scored 34 out of 40 points in the political rights category, but only 37 out of 60 in the civil liberties category, for a total score of 71, a drop from last year’s score of 75.
- The report treats “Indian Kashmir” as a separate territory, which saw its total score drop precipitously from 49 to 28 this year, moving it from a status of “Partly Free” to “Not Free”.
Reason for the downfall
- The annulment of autonomy and the subsequent shutdown of Kashmir, the NRC and the CAA, as well as the crackdown on mass protests, have been listed as the main signs of declining freedom in the report.
- These three actions have shaken the rule of law in India and threatened the secular and inclusive nature of its political system said the report.
- The report slammed the internet blackout in Kashmir terming it the longest shutdown ever imposed by democracy.
- It said freedom of expression was under threat in India, with journalists, academics and others facing harassment and intimidation when addressing politically sensitive topics.
- It warned that the Indian government’s alarming departures from democratic norms under present govt. could blur the values-based distinction between Beijing and New Delhi.
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Freedom of Speech – Defamation, Sedition, etc.
SC underlines restrictions on use of Sec 144
From UPSC perspective, the following things are important :
Prelims level: Sec. 144 of CRPC
Mains level: Section 144 : Circumstances of its use and abuse and SC's guidelines
In its order on Jammu and Kashmir the Supreme Court made the following points with regard to the use of Section 144 of the Code of Criminal Procedure (CrPC), 1973.
Key takeaways of the order
- Sec 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights
- When Sec 144 is imposed for reasons of apprehended danger, that danger must be an “emergency”.
- The imposition of Sec 144 must strike a balance between the rights of the individual and the concerns of the state.
- Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the order must state material facts in order to enable judicial review.
What is Section 144?
- Section 144 CrPC, a law retained from the colonial era, empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate specially empowered by the state government in this behalf to issue orders to prevent and address urgent cases of apprehended danger or nuisance.
- The magistrate has to pass a written order which may be directed against a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
- In emergency cases, the magistrate can pass these orders without prior notice to the individual against whom the order is directed.
What powers does the administration have under the provision?
- The magistrate can direct any person to abstain from a certain act or to take a certain order with respect to certain property in his possession or under his management.
- This usually includes restrictions on movement, carrying arms and from assembling unlawfully. It is generally believed that assembly of three or more people is prohibited under Section 144.
- However, it can be used to restrict even a single individual. Such an order is passed when the magistrate considers that it is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.
- However, no order passed under Section 144 can remain in force for more than two months from the date of the order, unless the state government considers it necessary.
- Even then, the total period cannot extend to more than six months.
Why is it criticised so often?
- The criticism is that it is too broad and the words of the section are wide enough to give absolute power to a magistrate that may be exercised unjustifiably.
- The immediate remedy against such an order is a revision application to the magistrate himself.
- An aggrieved individual can approach the High Court by filing a writ petition if his fundamental rights are at stake.
- However, fears exist that before the High Court intervenes, the rights could already have been infringed.
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