Policing Rumour

Tamil Nadu is misusing hate speech laws by arresting people for social media comments.

Written by Manuraj Shanmughasundaram | Updated: October 20, 2016 6:25 am
Jayalalithaa, Jayalalitha, Jaya, Rajinikanth, Jayalalithaa health, Jayalalitha health jaya health, apollo hospital chennai, tamil nadu news, inida news Tamil Nadu Chief Minister J Jayalalithaa was admitted to the hospital on September 22 after she complained of fever and dehydration.

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.

The writer is lawyer Madras High Court and spokesperson, DMK

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    bala Raja
    Oct 20, 2016 at 4:05 am
    The le should be "abuse" and not misuse. Where is the judiciary in all this? Shouldn't the lowest level magistrate dismiss such charges summarily when the accused is produced before him? Rather, the accused is remanded for lengthy periods. Just the arrest becomes a punishment in India because the judiciary goes along with this. Also, has any TN goverbment, DMK or ADMK, blameless in suppressing free speech? Both these parties, either through goondas or through the abuse of the police machinery, have attached those with perceived adverse opinions. Remember the burning of the Dinakaran office in Madurai by DMK thugs for publishing an article the local leader didn't like?
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      Dr M
      Oct 21, 2016 at 12:42 pm
      Truth is the panacea for all rumor. People start speculation in the absence of truth.
      Reply
      1. S
        Sankaran Krishnan
        Oct 20, 2016 at 7:32 am
        This culture of arrest happens and of course introduced by the Dravidian Parties and both DMK and AIADMK are responsible for this sorry state of affairs. For spreading rumours one can be fined nd also threaten them not to abuse once again but not to arrest them and har them and put behind the bars which is nothing but authoritarian governance !!!
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          Niladrinath Mohanty
          Oct 20, 2016 at 2:47 am
          In Tamilnadu hero/heroine worship has reached the peak. Govt. servants who are supposed to be loyal only to the Consution of India also have joined the crowd.
          Reply
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            niyaayavaadhi
            Oct 22, 2016 at 1:26 pm
            I am 68 years old. Some 55 years back, I remember one incident. In TN, the puranic lecturer ,Sri. Kirupananda wariar, is reported to have told , on the death of Mr. Annadurai, the then CM, that nobody can beat the fate and that Mr. Annadurai's time was over and he had to go. For this, there was a nasty, rowdy type reaction . The DMK cadres attempted to beat the poor man and the discourse pandal was set on fire. The old people can not forget this unruly behaviour of DMK rowdy elements, though the younger generation might not know this.
            Reply
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