Sunday, January 29, 2023

Freedom, Finally: Senior Advocate Dr GV Rao on the Supreme Court’s recent stay on the sedition law

The right to freedom of speech and expression is subject to the rigours of hate speech or seditious content. With the apex court boldly moving to suspend the sedition law, free speech will be protected.

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By Dr GV Rao

Democracy is oft described in its clichéd form as a government “of the people, for the people and by the people”. Historically, democracy has been a transition from monarchies and oligarchies, which governed their kingdoms by ancient diktats to be seen by divine ordain. These rulers were often indolent, prone to avariciousness and committed to excesses. And those that were governed, the subjects, were oppressed and exploited.

By Dr GV Rao

This struggle between the privileged and the underprivileged, between those who were gifted, meritorious and hardworking and those that simply had fortunes and opportunities bestowed upon them due to inherited entitlement led to political revolutions like the French Revolution, which had its basis in slogans like Liberate’ Égalité and Fraternaté. This led to the evolution and development of democratic forms of governance.

The word democracy itself finds its origins from the ancient Greek world and resurfaced in the late 16th century: from French démocratie and Greek dēmokratia, which came into existence with the connection of two words—dēmos (the people) and kratia (power, rule).

In furtherance of the lofty ideal of those times, when democratic thinking was in its nascent stage, Voltaire, the eminent French philosopher famously said: “I disapprove of what you say but I will defend to death your right to say it.”

A further evolution of the concept of power to the people was the free exchange of ideas and the freedom to think, speak and act and came to be inherent aspects of democratic functioning. Benjamin Franklin, founding father of the US, stated: “Freedom of speech of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins.”

Post-World War-II was seen as the victory of democratic forces over the fascist regimes of Hitler, Mussolini and the Imperial forces of Japan. The United Nations and its Charter give to the world newer meanings to freedom, democracy, human rights and free speech. In 1948, the Universal Declaration of Human Rights was adopted by the UN of which Article 19 states: “Everyone has the right to freedom of opinion and expression. This right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

In modern times, especially over the last two decades, with the exploration and exponential expansion of cyberspace, freedom of speech and expression were stretched to unprecedented lengths. Elon Musk, the superstar and poster-boy of modern tech, stated with aplomb and panache while acquiring Twitter: “Free speech is the bedrock of a functioning democracy and Twitter is the digital town square where matters vital to the future of humanity are debated.”

Based on Poet John Milton’s arguments, freedom of speech is understood as a multi-faceted right that includes not only the right to express and disseminate information and ideas but has three further distinct aspects:

  • the right to seek information and ideas
  • the right to receive information and ideas
  • the right to impart information and ideas

International, regional and national standards also recognise that freedom of speech, as the freedom of expression, includes any medium, be it oral, written, print, internet or art forms. This means that the protection of freedom of speech as a right includes the content and the means of expression and is sacrosanct and the fundamental basis of democracy.

The sanctity of free speech must be tested on the anvil of hate speech, followed by the graver offence of sedition under Section 124A of the Indian Penal Code. Both these are being grappled with by the Indian judiciary in view of the need to balance the freedoms and rights enshrined in the Constitution under Article 19(1)(a), the Right to Freedom of Speech and Expression.

Freedoms and liberties granted to citizens are never a licence to utter or speak irresponsibly and beyond the pale and parameters of civil discourse. In the Indian legal jurisprudence, it’s referred to as reasonable restrictions.

Freedom of speech and expression guaranteed to Indian citizens is subject to the reasonable restrictions of community acceptable standards of not misusing this right to create disaffection, friction, hatred and violence. The IPC makes such malicious attempts by any citizen(s) or individuals a punishable offence. Two sections mainly prohibit such actions and are Section 153A & 295A IPC which read as follows:

Section 153A says: “Whoever (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, . . . shall be punished with imprisonment which may extend to three years, or with fine, or with both.”

Section 295(A) of the IPC, enacted in 1927, says: “Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India], [by words, either spoken or written, or by signs or by visible representations or otherwise], insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both.”

There is a dangerous link between hate speech and violence, and criminal prohibition is necessary when hate speech publicly incites violence against individuals or groups of people. At the same time, criminal sanctions should be used as a measure of last resort and, all along, a balance must be kept between fighting hate speech on the one hand and safeguarding freedom of speech on the other. Any restrictions on hate speech should not be misused to suppress criticism of official policies, political opposition or deleterious religious beliefs. Violence in “the name of religion” is often manifested through targeted attacks on individuals or communities, acts of extremism or terrorism and communal violence.

Those who violated these prescriptions of law were known to be promoting “hate speech”. There have been numerous prosecutions and cases against persons who either in public life or even privately, online, etc., indulged in such scandalous and scurrilous activities. These incidents, many times, have led to riots, arson and communal violence as well. The north-east Delhi riots of 2020 were evidence of that. The famed seer and religious guru, Kalicharan Maharaj of Madhya Pradesh, was taken into custody in January 2022 for making inflammatory speeches against the Muslim community.

The recent judgment of the Delhi High Court became controversial when CPI(M) leader Brinda Karat sought prosecution of two leaders namely, Union Minister Anurag Thakur and MP Parvesh Verma, for allegedly making hate speeches. The Court held that if alleged inflammatory content was stated in public discourse smilingly then, it would not amount to “hate speech”. This judgment is bound to be appealed and hence cannot be treated as final. In Uttarakhand, provocative speeches were made by a duo—Jitendra Tyagi and Yati Narsinganad. They spoke of extermination of the minority community in India and were arrested.

Similarly, a large number of persons from the minority community making similar such vitriolic and caustic speeches with the view to inciting violence have been either prosecuted or reprimanded by law. Outrageous instances of the Owaisi brothers in Hyderabad who have shown scant regard for law are a pointer. Akbaruddin Owaisi, MLA, has been known to repeatedly make inflammatory statements against Hindus and the State in order to gain political support during elections, and was prosecuted for the same. Similarly, his elder brother, Asaduddin Owaisi, MP, has been spreading disaffection and communal hatred by threatening the UP police and people in general about the PM and the CM of UP by stating that when these Hindu leaders are gone, who will come to their rescue. All such matters are, no doubt, punishable offences.

Hate speech poses grave dangers for the cohesion of a democratic society, the protection of human rights and the rule of law. If left unaddressed, it can lead to acts of violence and conflict on a wider scale. In this sense, hate speech is an extreme form of intolerance which contributes to hate crime. Typical hate speech involves epithets and slurs, statements that promote malicious stereotypes and speech intended to incite hatred or violence against a group.

An effective approach to tackling hate speech, in particular cyber hate, is self-regulation by the public and private institutions, media and the internet industry. This includes the adoption of codes of conduct accompanied by sanctions for non-compliance such as blocking the content or suspender of the user of social media sites. Education and counter-speech are also equally important in fighting the misconceptions and misinformation that form the basis of hate speech.

Another exception to freedom of speech and expression is what the State believes to be seditious content. This is when anyone disseminates criticism of the State publicly and arouses disaffection against the government or the State. The law on sedition is prescribed under Sections 124A and 505 of the IPC which states:

“124 A states whoever, 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 shall be punishable with Life Imprisonment. The following are considered as seditious activities:

1. Any words, whether written or spoken, as well as signs such as placards/posters (visible representation),    

2. must incite hate, disdain, or dissatisfaction with the Indian government,

3. resulting in “imminent violence” or public disorder.”

According to the Court’s reading of Section 124-A, the above acts are considered “seditious”:

  • Groups raising slogans against the government, such as “Khalistan Zindabad”
  • To be deemed seditious, a speaker’s speech must cause violence or public disorder. Following cases have gone on to expand the definition to include “incitement to imminent violence.”
  • Any published work that incites public disturbance and abuse.

One of the earliest cases where sedition was examined was Kedar Nath vs The State of Bihar. Here, the Supreme Court laid the test of the motive or propensity to cause disorder, disruption of law and order, or incitement to violence. It said all these must be present for sedition to be committed, and set aside the conviction of the accused.

In Aseem Trivedi vs State of Maharashtra – 2010, the accused made insulting and derogatory depictions and cartoons against Parliament and uploaded them on social media to mock corruption in the government.

In Shreya Singhal vs Union of India, the apex court disapproved of and struck down Section-66A of the Information Technology Act, 2000. The Court’s decision that an individual could not be prosecuted for sedition unless his speech, no matter how “unpopular”, offensive, or unacceptable, was connected to any provocation of violence or disturbance of public order is crucial.

The Supreme Court recently stayed and suspended the use of this British colonial sedition law. This is a bold move towards protection of free speech. It has directed the central and state governments to stop filing cases under the sedition law. In effect, all pending cases in various courts have been held in abeyance.

Both the law on hate speech and sedition are restrictions on the fundamental right guaranteed on freedom of speech and expression. They have been seen to require review. The Court had recommended in Pravasi Bhalai Sangathan vs Union of India (2014) that the Law Commission review these provisions on hate speech and sedition.

The Law Commission in its 267th Report on hate speech in 2017 reviewed the provisions of 124A, 153A & B, 295A, 298, 505(1) & (2) IPC, Sections 95, 107, 144 CrPC, the Representation of the People Act, 1951, Protection of Civil Rights Act 1955, the Cable Television & Network Act 1955 and Cinematographic Act 1952.

The Law Commission after having reviewed major judgments on these provisions made recommendations for amendments to the provisions of the IPC and CrPC, removing all scope of misuse, which are yet to be adopted.

Similarly, in August 2018, the Law Commission found the archaic, colonial era provision of Section 124A of the IPC as having outlived its utility and contrary to the fundamental rights and freedoms guaranteed under the Constitution and released a consultation paper for debate on sedition law and its misuse. It raised 10 pertinent questions regarding the use and misuse of the law. Hopefully, the Supreme Court in its final judgement will speak its mind about these questions.

To sum up in the words of respected European Diplomat, Karel De Gucht: “Freedom of speech is a fundamental cornerstone of a democratic society, but at the same time, responsible media can contribute to the stimulation of dialogue and mutual respect.”

—The writer is Senior Advocate, Supreme Court of India

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