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If you are part of a WhatsApp group or on social media in Tamil Nadu, you should be worried. The Tamil Nadu police has arrested eight people, most of them charged under Section 505 of the Indian Penal Code, for spreading rumours on social media, in the past few days. This is nothing but another Victorian-era law being twisted to terrify people in a time of political uncertainty. It is an assault on free speech — an act forbidden by the Constitution and repeatedly admonished by the highest courts.
Section 505 is one among a battery of “hate speech laws”. These laws, like sedition (Section 124A), were used by the British government to muzzle dissent against the rulers and strike fear among Indian subjects. The internet has created a culture of rapid information dissemination and citizen empowerment. Years of free speech activism have allowed constitutional courts to mould a balanced and nuanced approach towards maintaining fundamental rights as well as public order. Yet, the Tamil Nadu police seems to have a reckless disposition to misuse penal provisions.
The fundamental right to freedom of speech and expression provided under Article 19(1) of the Constitution is certainly not absolute. The citizen’s right is tempered with the state’s duty to protect “interests of the sovereignty and integrity of India, security of the State, friendly relations with foreign states and public order”. The Constituent Assembly of India deliberated on the extent and scope of this fundamental right in detail on December 1, 1948. The debate sparked massive interest, but the submission of Thakur Dass Bhargava made a a telling impact. Upon Bhargava’s request, B.R. Ambedkar changed the terminology from just “restrictions” in Article 19(2) to “reasonable restrictions”. This was done so that the actions of the state to restrict fundamental rights can be examined by the courts to assess if they are reasonable or not. By prefixing one word, the question of fundamental rights and restrictions exercisable by the state became justiciable.
In S. Rangarajan vs P Jagajivan, the Supreme Court interpreted how freedom of expression must be treated when it conflicts with social interests. They advocated the “spark in a powder keg” test, which simply means that freedom of expression can only be suppressed if situations created by allowing such freedom are pressing. The court said that “the anticipated danger should not be remote, conjectural or far-fetched” and it “should have proximate and direct nexus” with that expression.
In 2005, actor turned politician Khushboo faced a series of cases under Section 505 IPC for speaking out on premarital sex. In all, 22 cases were filed against her by people who claimed her interview had denigrated Tamil culture. All cases were quashed by the apex court. In the last five years, 214 defamation cases have been filed by the Tamil Nadu government against political opposition and the media. Those protesting against nuclear power and the government’s policies on alcohol have been subjected to sedition charges. There is a mindless misapplication of archaic laws against people who are critical of the government, its policies and its agents.
Arrest of eight persons in the last three or four days for spreading rumours about the chief minister’s health is the culmination of such high-handed behaviour. Those arrested have been accused of posting messages regarding the chief minister’s health on social media and, in one case, conversing within a bank premises. They have been charged under a number of provisions, including Section 505 of IPC, which deals with “statements conducing to public mischief”. Yet, none of the alleged statements bear out what public mischief was created. In Bilal Ahmed Kaloo vs Andhra Pradesh, the apex court has said mechanically convicting a citizen for offences of such serious nature like sedition and promoting enmity and hatred “does harm to the cause”. In this regard, the courts have, time and again, recommended the Brandenburg test which says that there must be an imminent danger to society to justify curtailment of free speech.
The police and their superiors seem to have paid scant attention to such judicial advice. Instead, laws have been bent to suit narrow purposes. Such actions by the police show that they do not believe they are accountable to the people, but follow orders of partisan political masters. The only way forward is for courts to play a proactive role in striking down the misuse of the hate speech laws and reaffirming civil rights in our country.