Why is it Important to Preserve and Protect our Freedom of Speech, Expression and Right to Protest

The attack on journalists and charges of sedition have seen a drastic rise in recent times. Delivering the B.G. Verghese Memorial Lecture 2020 organised by The Media Foundation, JUSTICE MADAN LOKUR calls for the state's higher duty to protect the Rule of Law. The following are excerpts from the same lecture.

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I would like to address a gradual erosion of one of our most precious fundamental rights – the inalienable right to freedom of speech and expression, an erosion that is leading to the gradual destruction of our human right to dissent and protest.

This lethal cocktail is adversely impacting the liberty of all those who dare to speak up. Article 21 of our Constitution, the right to life and personal liberty is under a silent threat and we all know the consequence of losing our liberty – simply put, we will cease to be a democratic republic.

Of course, our fundamental rights cannot be absolute and so our Constitution has placed a few reasonable restrictions on the exercise of the right to free speech and these include restrictions placed in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation and incitement to an offence. Yet, it is important to note that these restrictions can be imposed only by the law enacted by Parliament and the restrictions have to be reasonable.

Our freedom of speech is being eroded and mauled through twisting and turning the law if not abusing it altogether.

The law needs to be objectively interpreted but subjective satisfaction has taken over and the consequences are unpalatable: dissent or expression of a different point of view has become an issue to the extent that bona fide speech sometimes becomes a security threat.

Some cynics glibly suggest that if the speaker is not guilty, he or she will be acquitted of the charges framed, but the fact of the matter is that detention as an under-trial is a gut-wrenching experience for anyone and particularly for a person whose cries of innocence fall on deaf ears. Such a person looks to the judiciary for protecting his or her freedom of speech and liberty but gets overwhelmed by the painfully slow justice delivery system.

Free speech and sedition

Ours is a country governed by the rule of law, so let us first appreciate what the law has to say on some aspects of freedom of speech. In my opinion, one of the worst forms of curtailment of the freedom of speech is charging a person with sedition.

The Supreme Court [in Kedarnath v. State of Bihar] drew a correlation between sedition and violence, sedition and inciting violence, and sedition and tendency to incite violence – not just simple violence but the violence of such a degree as to bring it within the purview of public disorder.

So, when you have rival gangs confronting each other and one of them shouts, "maro", a law and order situation of rioting and attempt to murder arises, not of sedition… when a speaker raises a slogan at a public gathering of supporters by shouting "goli maro", a charge could possibly be laid of tending to incite violence or incitement to violence and raising a public order issue rather than a law and order issue. The distinction is quite clear and should be clear to any policeman and magistrate.

On the other hand, when there is a call to protest for a cause without any incitement to violence, it would not be sedition under any circumstances. For example, when a call was made for large numbers to assemble on the lawns of India Gate to protest against the rape and murder of Nirbhaya, the organisers of the protest were not committing sedition.

Frequent use of the law against sedition began sometime in 2012 during India Against Corruption movement. Among the first few persons to be arrested for sedition was a political cartoonist who depicted the national emblem of three lions and the Parliament building in a manner unacceptable to the establishment. The cartoonist was charged with having violated the provisions of the State Emblem of India (Prohibition of Improper Use) Act, 2005.

I have reservations whether an offence is made out under this law and I will not be surprised if the police also felt that way. But perhaps the idea was to keep that cartoonist in custody by hook or by crook and so the charge of sedition was added.

The companion law adverted to by the Supreme Court, that is, Section 505 of the IPC was made use of against two young girls for a Facebook post in 2012. One of them questioned the need for declaring a holiday on the death of a political leader and the other 'liked' that post2. At best this was only an expression of an opinion that one may agree or disagree with. Unfortunately, both the young girls were arrested for creating or promoting enmity, hatred, or ill-will between classes.

So, the expression of a possibly unpalatable opinion became a criminal offence against the establishment.

Free speech and cooked up cases

In recent years new methods of silencing speech have been introduced: attribute something to a speaker that he or she never said. I find this simply amazing.

A doctor delivered an address to students of the Aligarh Muslim University sometime in December 2019 criticising the Citizenship Amendment Act and the National Register of Citizens3. More than one month later, he was arrested for making an inflammatory and provocative speech. About 10 days later, he was granted bail but was not released for reasons that are not clear. However, immediately thereafter he was kept in preventive detention under the National Security Act by an order issued on 13th February, 2020.

This is a draconian law … In other words, the detaining authority says that he or she is satisfied on the basis of past conduct that the detenu is likely, in the future, to act in a manner prejudicial to the security of the State or to the maintenance of public order. Therefore, it is necessary to preventively detain that person so as to prevent him or her from committing an offence.

The doctor had been in preventive detention, without trial, for more than six months before being set free…. Almost every procedure known to law was violated. Additionally, on a limited judicial review of the grounds of detention, the Allahabad High Court concluded that the detenu was alleged to have said things which he did not. For example, while he spoke of national integrity, he was accused of promoting hatred; while he deprecated violence, he was accused of promoting violence.

Another recent case on the same subject of attribution is that of a student activist, accused among things, of attempt to murder and making an inflammatory speech and inciting violence4. The Delhi High Court while granting bail noted that the prosecution had "failed to produce any material that she in her speech instigated women of particular community or gave hatred speech due to which precious life of a young man has been sacrificed and property damaged. Admittedly, agitation was going on since long, print and electronic media was present throughout in addition to cameras of police department, but there is no such evidence which establishes that the alleged offence has taken place on the act done by the petitioner, except statements recorded under Section 164 Cr.P.C. much belatedly, though, those witnesses were allegedly remaining present at the spot throughout."

These cases and there are others, lead to a frightening inference that if a citizen exercises the freedom of speech and says something that is not even distasteful, yet, he or she can be arrested on the basis of a fairy tale and will have to go through a long-drawn process for being set free.

We are gradually witnessing a somewhat similar situation, the only difference being that during the Emergency days the alleged threat was to the internal security of the country and today the alleged threat is to the sovereignty and integrity of the country.

Free speech and fake news

Passing on fake news by a citizen, if it is narrowly interpreted, could lead to a charge of sedition in a given case.

How does one look at propaganda disseminated by the establishment? Is it fake news, or misinformation or disinformation? Would it invite a charge of sedition against the purveyor of that propaganda? That question needs to be asked.

A student tweeted to the effect that the Army was "entering houses at night, picking up boys, ransacking houses and deliberately spilling rations on the floor." She also alleged that four men were called into an Army camp and interrogated (read tortured). A microphone was kept close by so that the screams of those being tortured could be heard in the area and the people terrorised. The allegations were denied as baseless by the Army and it appears that it had closed the matter and no complaint was filed against her for the tweets. However, some public-spirited person lodged a police complaint alleging that this was a case of fake news that excited disaffection towards the government established by law and is, therefore, sedition.

Three questions arise from this episode: Can the tweets be categorised as seditious in light of the judgment of the Supreme Court? If the Army, against whose credibility the tweets were directed, has dismissed the allegations and not lodged any complaint and effectively closed the matter, should a complaint by a third party at all be entertained by the police? Finally, does it take more than a year to analyse a few tweets to determine if they are seditious or not, or are police investigations being used merely to silence her?

Similarly, a person in Punjab was charged with sedition for spreading fake news that ventilators were not available for COVID-19 patients in a particular district6. Assuming this was not true, it could easily have been denied by the district administration, but a charge of sedition on him?

Apart from a vague definition of fake news and its subjective interpretation, these cases show that the establishment prefers to act against the weak and defenceless with what was recently described as an iron hand rather than against the privileged who can get away by saying anything. The fundamental right of freedom of speech cannot be applied arbitrarily.

Free speech and the Press

We all recall Mr. L.K. Advani's observation that during the Emergency journalists were merely asked to bend but they chose to crawl. Today, there is no Emergency and nobody has asked the media to bend, yet the perception (maybe wrong) is that they are crawling. It is quite a mystery.

There are two possible reasons: The first is a June 2020 report by the Rights and Risks Analysis Group which recorded that "A total of at least 55 journalists faced arrest, registration of FIRs, summons or show causes notices, physical assaults, alleged destruction of properties and threats for reportage on COVID-19 or exercising freedom of opinion and expression during the national lockdown from 25 March to 31 May 2020."

The second possible reason is that an unseen "iron hand" has been used to silence dissent and criticism.

Just a few days ago, the horrible gang rape and murder of a young girl in Hathras resulted in another and rather an ingenious method of restricting the freedom of the Press. With a view to prohibiting the media from reporting anything about the events, the establishment completely cordoned off the entire area with a few hundred policemen and issued a prohibitory order under Section 144 of the Cr.P.C. so that nobody could enter that area. Some intrepid journalists attempted, individually, to meet the family of the victim without violating the prohibitory order but were stopped from doing so on the basis of some undisclosed order said to have been passed by some higher-ups. This is nothing but an egregious violation of the freedom of the Press through a bizarre abuse of the law.

Everyone is hearing and seeing what is going on, but is anybody listening?

Weaponising the sedition law

Figures for 2019 recently released by the National Crime Records Bureau reveal that 93 cases were registered – a 30% increase. Almost every State seems to have weaponised sedition as a means of silencing critics and the numbers are increasing.

In an absolutely peaceful atmosphere, a teenager in Bengaluru raised a particular slogan three times and this resulted in her arrest on charges of sedition11. Could this ever amount to an attempt to destabilise the government? But this teenager spent four months in jail before she was granted bail. Again in Karnataka, as many as 85 school children were interrogated by the police concerning a play in which a child recites what the authorities found to be an objectionable dialogue12. The mother of the child and the teacher who oversaw the play were charged with sedition and arrested.

In July, the Special Operations Group in Rajasthan filed FIRs against six MLAs for sedition because they had indulged in horse-trading with a view to toppling the government. However, just before the High Court was to take up the challenge to the sedition charge, the allegations were withdrawn13. A pity, because it would have been a fun case.

Free Speech and the Internet

District or state-wide internet shutdowns are becoming a tool to stifle freedom of expression through prior restraint…. An internet shutdown is a highly disproportionate response….

In Anuradha Bhasin's case, the Supreme Court in January 2020 while deciding the legitimacy of internet shutdowns as well as physical lockdowns in Jammu and Kashmir stopped short of declaring access to the internet as a fundamental right, but declared that "the right to freedom of speech and expression under Article 19(1)(a) and the right to carry on any trade or business under 19(1)(g), using the medium of internet is constitutionally protected16."

In September last year, the Kerala High Court recognised that access to the internet is essential for not only the exercise of freedom of speech but also the right to education17. It was noted that the UN Human Rights Council had declared that the right to access the internet is a fundamental freedom.

We have the unenviable record of stifling freedom of speech and expression through the maximum number of internet shutdowns for prolonged periods in any vibrant democracy.

While it is important for each one of us to exercise our fundamental rights within reasonable limits laid down by law, there is a greater obligation on the establishment to ensure that the laws are not twisted, misused or abused in such a manner that citizens are deprived of fundamental rights that impact the liberty of an individual.

It is time for the establishment to realise that the people of this country mean well and as in any democracy, there are bound to be different points of view. These must be respected — otherwise, the fabric of our society might disintegrate, and fraternity, one of the keywords in the preamble to our Constitution might just become another dead idea.

(Justice Madan Lokur is a constitutionalist and former judge of the Supreme Court of India.)