A short history of Indian freedom of speech

Between 2009 and February 2011, at least 14 people were charged with sedition in India
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First Published: Thu, Sep 13 2012. 09 29 PM IST
This week, the apparent assault on free speech by the government culminated in the arrest on charges of sedition of cartoonist Aseem Trivedi . Photo: Hindustan Times
This week, the apparent assault on free speech by the government culminated in the arrest on charges of sedition of cartoonist Aseem Trivedi . Photo: Hindustan Times
Updated: Thu, Sep 13 2012. 10 42 PM IST
London: The typical citizen could be forgiven for fearing that the world’s largest democracy is hurtling towards George Orwell’s 1984 rather than 2013.
In late August the government’s department of telecommunications, citing the “communal tensions” around Assam, blocked more than 300 individual web addresses, including the Twitter profile pages of some journalists. It also ordered a limit of five mobile phone text messages per day per subscriber, which would impact not just those looking to spread malicious rumours but also democratic campaigners and average citizens.
In addition, politicians like Kapil Sibal and Mamata Banerjee have been collecting bad press for their attacks, verbal or otherwise, on free speech, while Internet service providers and the Madras high court have faced flak for blocking websites with vague and wide-ranging John Doe orders.
And in the meantime, private censorship regimes have been making inroads in India.
This week, the apparent assault on free speech by the Indian state culminated in the arrest on charges of sedition of Aseem Trivedi, a little known activist and cartoonist allied to the Anna Hazare-led anti-corruption movement, whose website was first blocked in December at the request of a Congress party politician.

Nothing new

“The action taken is a symbolic action—if anybody dares to speak against the government they will dare to suffer,” explained Hitesh Jain, litigation partner at ALMT Legal in Mumbai. “By initiating legal proceedings, it doesn’t matter who’s right or wrong, but certainly this becomes a harassment.”
“We’re not a Banana republic and fair criticism and tolerance are a foundation of the democracy. If the government is going to throttle and not going to be tolerant, it shows a sign of a government that is very worried, that wants to repress the public.”
If the government was really behind the Trivedi arrest, it was to some extent an own goal, generating terrible social and mainstream media buzz against the government and raising the cartoonist’s profile beyond what most public relation professionals could have achieved. Unsurprisingly Trivedi and his camp have been milking the episode for all it’s worth.
To be sure, there is no obvious connection to this government in Trivedi’s arrest.
A 27-year-old, self-styled activist, who studies law in Mumbai, supposedly filed the sedition complaint independently after he was upset by Trivedi’s depiction of the Ashoka pillar.
But could there be a case for nevertheless blaming the government for the apparent hostility to free speech in the current legal landscape?

Offences

While freedom of expression is protected under Article 19(2) of the Indian constitution, this can explicitly be trumped by the government citing national security concerns. In fact, most laws affecting freedom of expression clearly mirror that carve-out, explained Bangalore-based Trilegal partner Rahul Matthan, who was involved in the drafting of some of the legislation in the area.
So the protection of freedom of speech in India is nowhere near as strong as it is in the US. “If you want to victimize a person there are tools and machinery available which you can use,” agreed Jain.
Under the Indian Penal Code there are at least 10 offences that carry jail terms and fines related to the publication of information, according to IT lawyer Stephen Mathias, a partner at Kochhar and Co. in Bangalore, and one offence where the fine is unlimited (publishing falsehoods about candidates standing for election).
Trivedi’s alleged offence— sedition—is covered under section 124A of the Indian Penal Code introduced by the British in 1870. The wording of the oft-criticized law is so wide as to essentially threaten any criticism of the government with potential life imprisonment. During the freedom struggle famous victims of sedition law included Bal Gangadhar Tilak and Mahatma Gandhi.
The UK abolished the offence in 2009. In India the law remains on the books and between 2009 and February 2011, at least 14 journalists, activists, academics and politicians were charged with sedition for speeches, writings and even an exam paper question, according to research on sedition by the National Law School of India University (NLSIU) Bangalore and the non-governmental organization Alternative Law Forum (ALF).

Evolution

Matthan said: “Self-publishing is a phenomenon that did not exist when the constitution was drafted and when provisions were not applied to you and me, but to newspapers.” And so the law tried to adapt.
Under the Information Technology (Amendment) Act 2008, there are at least five criminal offences related to the publication of content which carry maximum jail terms of between three and seven years, as well as fines.
This was further expanded with the Information Technology (Intermediaries Guidelines) Rules 2011 that put the onus on Internet companies to remove objectionable content from their servers within 36 hours on request.
This is now the first line of attack or anyone wanting to remove content, according to lawyers. Jain explained that he had represented two or three clients, whom he declined to name, including senior politicians and businessmen against whom statements were published on social media. “We are first asking concerned social media like Twitter or Facebook, to block the content. Then we are advising (clients) to institute necessary actions, including civil suit, defamation, criminal complaint (or) mischievous rumour mongering.”
But in 90% of cases getting the content blocked and removed by contacting the host is successful, claimed Jain.
This is a much more worrisome development than the government blocking websites directly, claimed Pranesh Prakash, programme manager at the Bangalore-based Centre for Internet and Society (CIS), because there is no transparency in this process; even the government will not know how many actual websites were blocked using this method.
“It’s a terrible law and worst of all it’s something that you can’t really report on, unless you find out that someone has targeted you under that law, and that your web host has actually removed content,” Prakash said. “Unless you happen to somehow find out you’ll never know. Those kind of issues are infinitely more important than the government blocking 309 websites.”
Indeed, it is perfectly possible that, secretly, government politicians are filing takedown requests on their own behalf in respect of content that they feel disparages them—Congress party general secretary Digvijay Singh certainly did so in October 2011, filing first information reports (FIRs) against individuals and websites including Facebook, Twitter, YouTube, Sulekha and MSN for allegedly derogatory content posted online.
CIS’ research, conducted in late 2011, showed that six out of seven major Internet companies removed innocuous content after receiving a fake complaint from it. Apparently most companies simply do not have the bandwidth to examine the legality of every claim and there does not appear to be a willingness to fight potentially expensive battles for every piece of user-owned content.

Blame game

Most lawyers observing the field do not feel that the government has not had a malicious agenda in stifling freedom of speech, per se, but that there has simply been a lack of coherent policy or thinking between government departments, police and courts.
The block of 309 web addresses was clumsy, said Prakash, but he wrote on his blog that most blocked addresses appeared to at least be vaguely related to the topic of communal violence, if not the violence itself. “The goodness of the government’s intentions seem, quite clearly in my estimation, to be unquestionable. Yet, even with the best intentions, there might be procedural illegalities and over-censorship.”
“To me it’s a bit of a mess,” agreed Matthan, adding that the current system was causing “consternation among foreign investors”.
“Twitter and things like that give you instant access and a larger voice, which are features that have not been fully aligned or thought-through in government strategies… Everything you’ve seen in the recent past is a reaction to the government’s complete lack of understanding of this new phenomenon of social media and everything,” said Matthan, although he added that some government departments dealing with technology were actually very good.

Freedom to change?

P. Rajeev, minister of parliament from Kerala, tried unsuccessfully to annul the Intermediaries Rules in Rajya Sabha in May 2012, facing heavy resistance from Sibal. (See Mint story on 18 May)
CIS has sent the draft of a proposed new law to Sibal and other bureaucrats and politicians, but has received no response, and Prakash complained that members of civil society and academia have barely been invited to represent the interests of Internet users.
“I hope we’ll get some judgments,” suggested Matthan about the way the current rules could be improved by judicial intervention. “So far we’ve only seen the negative action—we’ve seen the executive actions get questioned and even when questioned we haven’t seen it go all the way to the Supreme Court.”
“I don’t know whether Indian courts are ready yet to take that view,” said Mathias. “If you look at all the core judgments in these areas (the court) tends to be in favour of a pro-government approach.”
Nevertheless, limited optimism is in order, claimed Matthan. “If you look at the history, the evolution in the way that the government has dealt with these issues, at the very least they’ve been getting better.
“And today they’re a lot worse than they should be, but a lot better than they have been in the past.”
Kian Ganz is a lawyer-turned-journalist based in Mumbai, from where he publishes legallyindia.com
Mint’s association with Legally India will bring you fortnightly insight and analysis of major developments in law, courts,firms and universities.
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First Published: Thu, Sep 13 2012. 09 29 PM IST
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