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.

 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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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:

1. 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.
2. Hate speech is “discriminatory” (biased, bigoted or intolerant) or “pejorative” (prejudiced, contemptuous or demeaning) of an individual or group.
3. 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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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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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:

1. Restrict freedom of speech and expression,
2. Validation of zamindari abolition laws, and
3. 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:

1. In the interest of public order and
2. 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 –

1. Sections 124A: Sedition
2. Section 153A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc. prejudicial to maintenance of harmony
3. Section 295A: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs and
4. 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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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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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 16^th 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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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:

1. To oblige with the Indian Constitution and respect the National Anthem and Flag
2. To cherish and follow the noble ideas that inspired the national struggle for freedom
3. To protect the integrity, sovereignty, and unity of India
4. To defend the country and perform national services if and when the country requires
5. To promote the spirit of harmony and brotherhood amongst all the people of India and renounce any practices that are derogatory to women
6. To cherish and preserve the rich national heritage of our composite culture
7. To protect and improve the natural environment including lakes, wildlife, rivers, forests, etc.
8. To develop scientific temper, humanism, and spirit of inquiry
9. To safeguard all public property
10. To strive towards excellence in all genres of individual and collective activities

The 11th fundamental duty which was added to this list is:

1. 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?

1. To preserve the rich heritage of our composite culture
2. To protect the weaker sections from social injustice
3. To develop the scientific temper and spirit of inquiry
4. 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.

10

Please leave a feedback on thisx

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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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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:

1. Sovereignty and integrity of India
2. Security of the nation
3. Friendly relations with foreign states
4. Public order
5. Decency or morality or
6. Defamation or incitement of an offense
7. 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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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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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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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?

1. The Rowlatt Act was based on the recommendations of the ‘Sedition Committee’.
2. In Rowlatt Satyagraha, Gandhiji tried to utilize the Home Rule League.
3. 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.

9

Please leave a feedback on thisx

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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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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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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:

1. 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.”
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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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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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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:

1. Security of the State
2. Friendly relations with foreign states
3. Public order
4. Decency and morality
5. Contempt of court
6. Defamation
7. Incitement to an offense and
8. 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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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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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:

[Burning Issue] Free Speech Vs. Contempt of Court

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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