Over the decades, the Indian Supreme Court has developed a rich and robust jurisprudence of free speech and, with a few exceptions, has generally ruled in favour of free speech against repressive measures. This was most recently evidenced in the famous Shreya Singhal judgment that held Section 66A of the Information Technology Act to be in violation of Article 19(1)(a). And yet we persistently hear of cases, including the ongoing sedition case against students of JNU, where the law is used to harass or silence any form of critique or dissent.
The Supreme Court has persistently held that for the offence of sedition to be satisfied, there has to be a causal relationship between speech and acts of violence, and mere speech, regardless of how subversive it is, does not amount to sedition. But the ease with which complaints of sedition or speech that allegedly hurts the sentiments of a community are brought before the police and criminal action initiated against the speakers is a cause of worry. Rajeev Dhavan, in his book, Published and be Damned, argues that imperfect as the jurisprudence of free speech in India is, it at least provides us with a platform to challenge unreasonable acts of the state. The real challenge is how we tackle lumpen threats that also expertly use the law in strategic ways. Violent attacks are generally preceded by or followed by the use of criminal law as a strategy of harassment. In addition to the well-known strategy of Slapp suits (strategic legal action against public participation), Dhavan invents a new acronym, Kicks (kriminal intimidatory coercive knockout strategies), to describe a mode of using the law for the most illegal purposes by the most lawless groups. Recall the way that M.F. Husain was literally “Kicked” out of the country by the many criminal cases filed against him.
People concerned with the misuse of these laws often ask for them to be repealed or struck down on the grounds that they violate Article 19(1)(a). But herein lies the problem. Most of these laws have, in fact, been challenged and their constitutional validity has already been upheld. Section 295A (“deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs”) was found to be constitutional in the Ramjilal Modi case (1957) and Section 124A (sedition) was held to be constitutional in the Kedarnath case (1962).
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Both these were Constitution benches and even though the effect of these judgments has been subsequently watered down through more liberal judgments, these cases remain the law of the land. While one wishes that these laws would be trashed in the future, it is unlikely that Parliament will repeal them in a hurry. In the case of sedition, the provision is beneficial to every government regardless of its ideology, and in the case of hate speech, the colonial self-fulfilling prophesy that Indians are “emotionally excitable” subjects sadly remains the persistent myth.
How then are we to address systemic reforms that ensure that these laws are not misused in a way that makes a joke of our fundamental right to freedom of speech and expression? If we are unlikely to see changes in the substantive law very soon, I would suggest that one way of protecting free speech is by focusing on procedural reforms and safeguards that at least render the malicious use of these laws more difficult. There are at least five that immediately come to mind. First, all speech-related offences should be made bailable offences; this would lessen the harmful impact of using arrest and custody as a way of harassing anyone exercising their rights under Article 19(1)(a).
Second, the offences should be made non-cognisable so that there is at least a judicial check on the police acting on the basis of politically motivated complaints. In the case of offences under Sections 153A (“promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony”) and 295A of the Indian Penal Code, it is mandatory under Section 196(1) of the Code of Criminal Procedure to obtain prior sanction of the government before taking cognisance of the offences. This needs to be extended to the offence of sedition under Section 124A. The Gujarat High Court in a 1980 decision (Shalibhadra Shah) observed that the reason that prior sanction is needed is because in many cases “the very filing of a prosecution after tempers have cooled down may generate class feelings which could well be avoided by the government by refusing to accord sanction” and “that the article complained of pertains to a matter falling within the area of social reform and attacks certain dogmas in a general way without intending to outrage religious feelings”. Fourth, in the case of hate speech, it is important to raise the burden of proof on those who claim that their sentiments are hurt rather than accept them at face value. And finally, it is crucial that courts begin to take action against those who bring malicious complaints against speech acts.
One of the important innovations of the Shreya Singhal judgment was the fact that in addition to striking down the provision on grounds of it being vague and having overreach, the court also recognised “chilling effects” as one of the ways in which it violated Article 19(1)(a). This principle has also been recognised in the Khushboo judgment (2010), in which the court said, “If the complainants vehemently disagreed with the appellant’s views, then they should have contested her views through the news media or any other public platform. The law should not be used in a manner that has chilling effects on the ‘freedom of speech and expression’.”
The true test of a democracy lies in how much it can tolerate disagreement and even speech that we strongly disagree with. But despite the Supreme Court affirming our right to disagree and dissent in substantive law, the ease of filing complaints and the ever-looming threat of police action undoes procedurally what we have substantively. If we are to regain our fundamental rights, then it might well begin with procedural reforms that support rather than negate free speech.