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Freedom of Speech

  • Supreme Court recently upheld the validity of the criminal defamation law
    • sections 499 and 500 of the Indian Penal Code providing for criminal defamation
  • the court said though free speech is a “highly valued and cherished right”, imprisonment is a proportionate punishment for defamatory remarks
  • Why should it be retained?
  • According to Supreme Court
    • Reputation of an individual, constituent in Article 21 is an equally important right as free speech
    • Criminalization of defamation to protect individual dignity and reputation is a “reasonable restriction”
      • Editors have to take the responsibility of everything they publish as it has far-reaching consequences for an individual and country’s life
    •  acts of expression should be looked at both from the perspective of the speaker and the place from where he speaks, the audience etc.
  • Other arguments
    • been part of the statutory law for over 70 years. It has neither diluted our vibrant democracy nor abridged free speech
    • Protection for “legitimate criticism”  available in the
      • Civil law of defamation
      • Under exceptions of Section 499 IPC
    • The mere misuse or abuse of law can never be a reason to render a provision unconstitutional rather lower judiciary must be sensitized to prevent misuse
    • Monetary compensation in civil defamation is not proportional to the excessive harm done to the reputation
  • Significance of this judgement
    • judgement raises reputation to the level of “shared value of the collective” and elevates it to the status of a fundamental right under Article 21 of the Constitution
    •  there is a correlative duty on citizens not to interfere with the liberty of others, as everyone is entitled to the dignity of a person and of reputation.
  • Why should it be deleted?
    • British imported their idea of criminal libel into the newly-minted Indian Penal Code (IPC)
      • In the 400 years after the origin of criminal defamation in England, and the world has moved on. There are no more duels. The United Kingdom abolished criminal defamation altogether.
    • Freedom of speech and expression of media is important for a vibrant democracy and the threat of prosecution alone is enough to suppress the truth.
    •  influential people misuse this provision to suppress any voices against them.
    •  anecdotal evidence, every dissent may be taken as unpalatable criticism.
    • The right to reputation cannot be extended to collectives such as the government, which has the resources to set right damage to their reputations.
    • process in the criminal cases itself becomes a punishment for the accused as it requires him to be personally present along with a lawyer on each date of hearing.
    • It goes against the global trend of decriminalizing defamation
      • Many countries, including neighbouring Sri Lanka, have decriminalized defamation.
      •  the Constitutional Court of Zimbabwe struck it down as an unconstitutional restriction on the freedom of speech
    • In 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights called upon states to abolish criminal defamation, noting that it intimidates citizens and makes them shy away from exposing wrongdoing
  • Defamation should be decriminalized on following grounds:
    • Present structure of law imposes arbitrary restrictions instead of reasonable restrictions
    • Acts can be misused to settle political scores and thwart others’ freedom of speech
    • the law is not in tune with the present trends of promoting free speech
      •  repeal of section 66A of IT Act by Supreme Court and dismissal of sedition charges against cartoonist Assem Trivedi by the Bombay HC.
    •  it gives a chilling effect on free speech
    • Defamation and criticism provide conduits for improvement as concerns of people are heard and corrective actions are taken
    • it can be said that criminalizing defamation should be done away with and instead suitable amendments be made to allow the authorities to frame charges as civil offence in case there is a mala Fide intention behind such defamatory acts.

SECTION 295A OF IPC

  •  comedian Kiku Sharda was arrested for acting out a spoof on godman Gurmeet Ram Rahim Singh.
  • S.295 of Indian Penal Code incriminates any act that outrages the religious feelings or sentiments of others
  •  IPC provision is seen as a tool in the hands of the ruling government to curb dissent
  •  Also, use it to promote their political cause by pleasing a certain section of the community at the cost of others.
  •  direct violation of Freedom of Speech and Expression guaranteed under A.19 (1) (a)
  • It also goes against A. 51A of the Constitution that states that it is a “fundamental duty of every citizen of India to develop the scientific temper, humanism and the spirit of inquiry and reform”.
  • Way forward
    •  the real issue is not the provision itself but its misapplication
    • the provision clearly states the requirement of ‘malice’ or ‘bad intention’ on the part of the perpetrator.
    • However, the police and the ruling class use this for its own personal benefits many times. There is a need to read down the provision and give clear guidelines to the police for its application. Misapplication should be strictly dealt with.

FREEDOM OF PRESS

  • papers were instructed to refrain from publishing news related to Naga insurgent group NSCN-Khaplang [NSCN-K]
  • Concerns:
    • notifications have implications for the freedom of the press
    • India ranks at 136 among 190 nations on the World Press Freedom Index published by Reporters without Borders.
    •  incident draws attention to the problems faced by the press in conflict zones, trapped as media persons between the state armed with the law to enforce varying degrees of censorship, and militant groups who use methods of intimidation to have their versions published
    • The role of Press Council of India (PCI):
    • PCI has taken Suo Motu note of the case and served notices to the paramilitary force and the State government
  •  BAN ON MURUGAN’S BOOK REVERSED
  • High Court Verdict
    • Madras HC has rejected the demand for banning the book or prosecuting the author.
    • It is a liberal and progressive judgment that emphasises and upholds the freedom of writers to write
    •  HC lambasted the practice of self-appointed super censors in the society to decide on what the people should read or watch
    • Court’s opinion those professing to be hurt by a book should just avoid reading it.
    • The bench also reminded the state authorities, like police and the local officials, of their duty to secure freedom of expression and not to succumb to mob demands in the name of preserving law and order. [HECKLER’S VETO]
  • Issue of Judicial Censorship
    • Indian Criminal law prescribes a two-step safeguard on freedom of speech in case of banning a book
      •  application of mind by the government when it bans a book under S.95 and 96 of the CrPC
      • judicial review of the government’s move by a writ petition.

SECTION 124A: SEDITION

  • a pre-independence provision which covers sedition charges against the government.
  • Human rights activists and supporters of free speech argued that this section is draconian and should be got rid of.
  • Popular cases under section 124A
    • Protesters of Kudankulam nuclear plant
    • JNU leader Kanhaiya Kumar
    • writers like Arundhati Roy
  • Arguments in favour of Sedition Law

    • 1962, the Supreme Court in Kedar Nath Singh vs the State of Bihar upheld Section 124A and held that it struck a “correct balance” between fundamental rights and the need for public order.
    •  the court had significantly reduced the scope of Sedition law to only those cases where there is an incitement to imminent violence towards the overthrow of the state.
    • the Court held that it is not merely against the government of the day but the institutions as a symbol of the state
    • To check and balance the public disorder created by different ideologies and hateful remarks.
    •  the integrity of the nation by curbing insurgency
    • Defines a boundary for criticizing government to a limit only
  • Argument against section 124A

    • stifles the democratic right of people to criticize the government.
    • police might not have the “requisite” training to understand the consequences of imposing such a “stringent” provision.
    •  used arbitrarily to curb dissent
    • targets have been writers, journalists, activists who question government policy and projects, and political dissenters.
    • draconian nature of this law—non-bailable, non-cognisable and punishment that can extend for life— has a strong deterrent effect on dissent even if it is not used.
    •  the press should be protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.
    • Legislation exists to deal with unlawful activities and armed movements. There is no need to criminalize words spoken or written.
    • As article 19(1) gives the freedom to speech, 19(2) imposes legal restrictions on its limit. Section 124-A just acts as an unnecessary deterrent.
    •  excessive discretionary power to the police.
    • Does not differentiate between aggressive or diffident nature of the demands.
    • Puts a ban on freedom of expression. E.g: Aseem Trivedi and Arundhati Roy case.
  • Way Forward
    • guidelines of the SC must be incorporated in S.124A as well by amendment to IPC so that any ambiguity is removed
    • state police must be sufficiently guided as to where the section must be imposed and where not.
    • ensure that section 124 A of IPC strikes a balance between security and smooth functioning of state with the fundamental right of freedom of speech and expression.
    • Implementing the Law Commission’s recommendations in this regard to include ‘acts against overthrowing of Judiciary’ also under it.
    • Reduce the punishments which currently includes life imprisonment.
    • The committee involving Government and renowned civil society members while deciding cases under section 124 A.
    • To limit the discretionary power as much as possible through better and comprehensive drafting of guidelines.
    • Cases
      • Kedar Nath Singh Vs State of Bihar 1962: constitutional bench of supreme court made clear that allegedly seditious speech & expression may be punished only if speech is an incitement to violence or public disorder.
      • In Indra Das vs State of Assam & Arup Bhuyan vs the State of Assam, Supreme Court stated that only speech that amounts to “incitement to imminent lawless action” can be criminalised

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