A research report by the International Human Rights Programme (IHRP) at the University of Toronto, the Faculty of Law; PEN Canada, the Canadian Centre of PEN International, and PEN Delhi members, titled “Imposing Silence”, provides a glimpse of how Indian laws dangerously endanger free speech. Text of the executive summary of the 85-page report:
The democratic freedoms enshrined in India’s Constitution set out a political vision that was forged in the crucible of Partition. This vision has informed India’s complex postcolonial history and held the nation together despite its manifold religious, regional, linguistic and caste tensions. The Constitution recognises freedom of expression as a cornerstone of India’s democracy and its enduring importance has helped preserve the country’s fractious public sphere and to sustain its secular, multicultural character. The resulting cultural dynamism has produced, in the words of one observer, “a society of swiftly inflating expectations, where old deference crumbles before youthful impatience,” where “capital is restless [and] new, unforeseen threats and risks are facts of life.”
Despite its Constitutional commitment to free speech, India’s legal system makes it surprisingly easy to silence others. Routine corruption, inefficiency, and the selective enforcement of vague and overbroad laws allow individuals, or small groups, to censor opinions they find distasteful. The Indian Penal Code (IPC) offers would-be censors a wide range of potential offences, many of which do not require malevolent intention on the part of the communicator. If you disagree with something that can be said to promote “enmity,” jeopardise “national integration,” “maliciously” insult religion, or foster “enmity between groups,” it is not difficult to invoke censorship.
India inherited many forms of censorship from the British but it has also “preserved, sustained and expanded” this legacy. Every year thousands of ordinary citizens endure the graft and inefficiency that result from overreaching legislation and a poorly administered justice system. This exacerbates existing social disparities and prevents redress for those who are silenced. The resulting chill deters many who might have otherwise spoken out, often marginal voices and critics of the reigning political establishment.
An ineffective lower court judiciary, and inconsistent legal precedents from appellate courts undermine predictable application of the law. This emboldens plaintiffs to pursue suits that would otherwise be dismissed for lack of cause. The resulting wave of mala fide actions consumes scarce judicial resources, and forces defendants to bear significant legal costs and/or waste years in court defending their right to free speech.
Despite the Supreme Court of India decision vindicating aspects of free expression on the Internet earlier this year, the overall trend reveals declining interest on the part of the judiciary in defending freedom of expression, especially in local courts that are more susceptible to corruption and undue influence and where the judges tend to hold less liberal values.
Taken together, these problems result in numerous violations of Indian citizens’ right to freedom of expression, and to the due process guaranteed in international treaties to which India is bound as a party.
Repeals and amendments to current legislation would clarify Indian law, decrease police overcharging, reduce caseloads, and result in speedier trials. A clarification of Supreme Court precedents would lessen uncertainty in lower courts and discourage frivolous lawsuits. As it did recently the Supreme Court is also in a position to re-interpret Constitutional limits on freedom of expression and harmonise them with international human rights law.
The vague and overbroad phrasing of several sections of the Indian Penal Code (IPC) and the Code of Criminal Procedure (CCP) can be used to restrict freedom of expression, not only by governments, but by almost anyone who wishes to silence another. These include:
- Section 95 of the CCP, which empowers state governments to seize and prohibit publications that “appear” to violate six discrete sections of the IPC. Although explicit grounds must be given for a forfeiture declaration, the burden of proof for underlying offences does not even rise to a balance of probabilities in court.
- Section 124A of the IPC, which criminalises sedition. Throughout India’s history this overbroad provision has been used to silence public figures, including Mahatma Gandhi. More recently it has been used to justify the harassment of several thousand protesters at a nuclear site, a situation that prompted a formal inquiry from three UN Special Rapporteurs.
- Section 153A of the IPC, which attempts to preserve “harmony” between a variety of enumerated groups by barring speech and several other acts. In January 2015, a BJP Minister was charged under s.153A for referring to a Minister in Uttar Pradesh as a “terrorist” – the complainant (a member of the public) felt that the statement hurt the feelings of the Muslim community. Similar charges were brought later in the month against a politician who criticised one of his opponents for doing nothing for his constituents “apart from procuring a new fleet of vehicles for the police and changing the colour of the vehicles in the convoy.” The opposing party found the statements “objectionable” and argued they “could affect peace and tranquility.”
Obscenity, Blasphemy, and the Control of Religious and Political Narratives
India’s obscenity laws side with the offended party and are easily leveraged by aggrieved groups or individuals. In 2012, when the television regulator imposed a 10-day ban on Comedy Central for broadcasting a risqué skit, the Delhi High Court questioned neither the constitutionality of the Act, nor the penalty imposed. Obscenity laws have also been used to censor an actress whose opinions on pre-marital sex were published in a magazine. In the latter case one complainant only had second-hand knowledge of the alleged offence.
Blasphemy, which is criminalised by s.295A of the IPC, is defined as expression that is “intended to outrage religious feelings of any class by insulting its religion or religious beliefs.” In 2007, charges were successfully laid against the author of a book that dealt with the purported “political world invasion by Muslims.” It took three years before the High Court heard the application to remove the forfeiture — which was subsequently upheld.
The laws have also been used to police religious narratives. In February 2014 University of Chicago professor Wendy Doniger’s book “The Hindus: An Alternative History” was removed from bookstores after criticism from bloggers who believed it attacked Hinduism and sexualised Hindus, and a formal complaint by a member of a far-right conservative Hindu organisation. The book’s publisher noted that s.295A “will make it increasingly difficult for any Indian publisher to uphold international standards of free expression without deliberately placing itself outside the law.” Weeks later a different publisher put on hold the re-printing of another of Doniger’s books, “On Hinduism”, until it was reviewed by independent experts, in response to a charge by the same group.
Section 499, which criminalises defamation, can be used to secure a conviction without proof that actual harm has occurred – the intent or knowledge that harm would likely result is sufficient. Predictably, this provision has been used to silence political speech. In May 2014, the IPC’s public mischief provisions (s. 505) were used to arrest a Bangalore student who sent an allegedly offensive WhatsApp message about Prime Minister Modi.
India’s regulatory provisions may be used with more subtlety, but their impact on legitimate criticism of the government is no less significant. The penalties for regulatory offences are so steep, including imprisonment, that for all practical purposes they are just as threatening as criminal prosecutions.
The Cable Television Network (Regulation) Act, 1995 and the associated Cable Television Network Rules permit sanctions for a broadcaster who “offends against good taste or decency,” voices “criticism of friendly countries” or “aspersions against the integrity of the President and judiciary.” Since the rules are not enforced by an independent body, the High Court of Delhi has correctly described this situation as “anathema in a democratic setup inasmuch as it would put broadcast under the direct control of the state.”
The Unlawful Activities (Prevention) Act, 1967 (UAPA) has been used to prosecute a woman found with “Maoist leaflets,” even though, in a separate case, the High Court of Bombay held that the possession of propaganda from a banned organisation was not sufficient proof of membership. Local human rights groups report that the Act has been used with “fabricated evidence and false charges” to detain and silence peaceful activists.
The Foreign Contribution (Regulation) Act, 2010 (FCRA) has been used to lodge complaints against small NGOs who do not toe the party line. “I’m quite conservative,” said the Executive Director of one NGO interviewed for this report, “because I don’t want the organisation to be shut down. We can’t be seen as influencing public policy through public campaigns.” The NGO avoids, or downplays, discussion of religious issues and human rights reporting from certain disputed regions in the northeast of India. In April 2015, the Ministry of Home Affairs used the Act to suspend Greenpeace’s registration in India, observing that they were adversely affecting the national interest.
The Cinematograph Act, 1952 and its associated regulations empower the Central Board of Film Certification (CBFC) to censor parts of films or to ban them outright, not only for “decency or morality” but ostensibly to maintain public order and prevent crime. But even when films are approved by the Board, the threat of violence at screenings and the state’s inability, or refusal, to protect filmmakers, often combine to exert a chilling effect. As this report was being prepared, the Board was deliberating over the certification of two controversial films.
The Contempt of Court Act, 1971 punishes ‘criminal contempt’ including expression that scandalises or ‘tarnishes’ the image of the court. A former Supreme Court Justice has called the law a “great silencer,” which has been used to suppress public discussion of questionable judicial conduct. Excesses include contempt cases lodged against policemen “who dare to hold up judges’ cars while controlling the flow of traffic,” and a judge who threatened to fine a railway official in contempt for not doing as he asked.
The Information Technology Act, 2000 (ITA) was enacted to promote e-commerce, e-government, and to amend criminal and evidence law to take account of electronic transactions. But many provisions of the act are troublesome. Section 66A — which was struck down in the Supreme Court of India’s landmark 24 March 2015 decision – was used to lay charges against a shipbuilder whose Facebook post criticised the prime minister. Police in Maharashtra have reportedly used the provision against individuals who “liked” allegedly objectionable Facebook posts about local politicians. In an interview for this report a retired judge described the breadth of the provision as “legislative carpet bombing.”
Section 69 of the ITA, which remains in force, authorises mass surveillance and permits the authorities to “intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource.” The resulting Central Monitoring System, a wide-ranging surveillance program, raises concerns about digital censorship and surveillance.
A Punitive Process
A right to freedom of expression means little if the administration of justice — the processes that guarantee fairness and expediency — is inadequate. Nearly all of the more than 30 individuals interviewed for this report said that the bureaucratic inertia and costly delays typical of India’s legal system have transformed the process itself into a form of punishment. In late 2009, for instance, more than 30 million cases — two-thirds of them criminal matters — were pending in courts even though the Supreme Court recognises a Constitutional right to a “speedy trial.”
As the process itself has become a de facto punishment, several groups and individuals have learned how to exploit the breadth and vagueness of the IPC and pressure the police into laying baseless charges. Once in court, the resulting cases often face lengthy delays due to ineffective legal counsel, a poorly trained judiciary, and an overburdened bureaucracy. Regardless of the merits of the case against them, defendants may face years of pointless litigation — a situation that fosters self-censorship and chills freedom of expression.
Without prosecutors to help them vet First Information Reports (FIRs), documents prepared by the police upon receiving a complaint, Indian policemen rarely have sufficient training to ensure that legislation is not being applied incorrectly; they simply read the text of the statute, investigate, and charge. When presented with vexatious FIRs the police often rubberstamp them. This encourages “overcharging” — the unreasonable multiplication of charges against a single defendant — in order to increase the likelihood of a conviction. Thus, by trying to avert a putative law and order problem, the police facilitate censorship and surrender their obligation to protect controversial speakers.
The justice system’s poor record on freedom of expression cases is also due to the Supreme Court’s inconsistent rulings in Article 19 jurisprudence, particularly its contradictory tests for determining whether a law can be considered to be one of the “reasonable restrictions” mentioned in Article 19(2). As a result, the lower court judiciary cannot be relied upon to produce consistent rulings in freedom of expression cases. Each case remains open to wide judicial discretion since judges can cherry-pick precedents they wish to follow.
In recent years there has also been a tendency to transform civil disputes into criminal cases. The Supreme Court has condemned the practice, but acknowledges “a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of [claimants].” The Court further notes “an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement.”
The Supreme Court of India’s 24 March 2015 decision to strike down s.66A of the ITA was a welcome counter-pressure to these tendencies. The Court’s decision noted that s.66A “is cast so widely that virtually any opinion on any subject would be covered by it” and that it was “liable therefore to be used in such a way as to have a chilling effect on free speech.” This decisive stand against overbroad laws that are effectively “completely open-ended and undefined” bodes well for future Article 19 rulings.
Section 161 of the IPC criminalises corruption by public servants. But corruption in India is endemic, notoriously so within the police force. In 2010, one poll found that 54 per cent of respondents had bribed a government official; 44 per cent felt government anti-corruption efforts were ineffective, and 74 per cent felt corruption had increased during the last three years.
The Indian police force leads the country’s institutions in terms of bribery and its corruption has been especially notable for its impact on the marginalised. A 2008 Transparency International report found that two-thirds of the 5.6 million poor households which had interacted with the police during the previous year, had either “paid a bribe” or “used a contact”; 22 per cent of the bribes were paid by people accused of a criminal offence.
The Indian judiciary has fared little better than the police. A study recently published in the Harvard Human Rights Journal found significant incompetence among the lower court judiciary in India. In part this was due to the appointment of lawyers with little courtroom experience. Consequently, many lack the appropriate experience and knowledge and feel “insecure, cautious, and unwilling to take a more assertive [position]” when confronted by senior lawyers. Many judges defer to senior lawyers’ arguments, or to the government, or strategically adjourn cases to buy themselves more time. Judges often yield to social pressure, particularly when their rulings may result in violence.
More blatant corruption is also rife. One study found that 80 per cent of litigants interviewed in Gujarat reported being “asked to pay a bribe by a lower-level [judicial] staff at some point during an administrative proceeding.”
Access to Justice
High legal fees and drawn-out court proceedings often mean that poor people lack the resources to successfully defend their rights in India. The Legal Services Authorities Act, 1987 provides for free legal services in cases that meet certain requirements, but it has failed to provide access to justice for many people. The resulting imbalance favours wealthy litigants over poorer defenders, and undermines the principle of fairness in adversarial trials.
The best-known strategy used to exploit this asymmetric access to legal resources is the Strategic Lawsuit Against Public Participation (“SLAPP suit”), which often has devastating impacts on the freedom of expression of marginalised people. SLAPP suits are frequently initiated for the sole purpose of silencing under-resourced defendants, and socio-economic status is usually a decisive factor in their success. Such coercive legal strategies have been used to intimidate participants at the 2012 and 2013 Jaipur Literature Festival, after they read passages from Salman Rushdie’s novel “The Satanic Verses”.
Our research indicates that journalists are particularly vulnerable to coercive litigation. Once entangled in legal proceedings, they often receive little support from fellow journalists. In contrast, artists, writers and filmmakers who have stronger and better-developed support systems are able to band together to resist legal harassment. Defendants in cities tend to have better access to legal and professional resources than their rural counterparts, and journalists working outside of big cities remain particularly vulnerable.
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