The recent arrest of political cartoonist and anti-corruption campaigner Aseem Trivedi in Mumbai on sedition charges for allegedly depicting national symbols in a despicable manner has triggered a fresh debate in India on freedom of speech and expression. Though the Bombay High Court ordered his release, many still find it difficult to digest that a cartoonist can be charged with sedition.
This comes close on the heels of the government’s order blocking websites and Twitter accounts in the wake of violence last month following riots between Bodos and alleged Bangladeshi Muslim immigrants in Assam. Though the current debate freedom of speech and the restrictions imposed by the government is more intense, the tussle is quite old.
Through the ages, the State, monarchs and the Church have tried to silence dissent. Almost 2,400 years after Greek thinker Socrates sacrificed his life for the sake of freedom, the situation in totalitarian states such as China and North Korea is no better. Historically, there have been two schools of thought. Plato believed citizens belonged to the State. Machiavelli said security of the State was paramount. In contrast, John Stuart Mill said, “If all mankind minus one, were of one opinion and only one person were to be of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified silencing mankind.”
“This tussle between quest for individual freedom and the State’s attempt to muzzle it is a continuous process and it’s still evolving,” says Navnita Behera, Professor of Political Science, Delhi University. India suddenly appears to be caught in controversy around attempts to restrict individual liberty. Article 19(1)(a) of the constitution guarantees the right to freedom of speech and expression with certain restrictions. Governments at the Centre and states have tried to curb this right in the name of sovereignty and integrity of India, security, public order, decency or morality and incitement to an offence. But barring a few exceptions, including the Emergency-era, the judiciary has come to the rescue.
Outdated sedition law
The British used Section 124 A of the Indian Penal Code to jail freedom fighters. Post-independence the provision is being used to slap sedition charges against activists. Terming the charges against Trivedi as “illegal and absurd”, advocate Prashant Bhushan said, “Post-Constitution, the provision became unconstitutional as it violated Article 19(1)(a).” Press Council of India chairperson Justice Markandey Katju even demanded the arrest of the policemen who invoked the law against Trivedi.
There is no doubt that material posted on many websites, particularly social networks, is often objectionable. But blocking websites and seeking filtering of material raises questions about the limits of free speech in a democracy. “When social media is being used to created hatred against one community and create communal tension in the country, the government would certainly be justified in blocking the websites,” says senior advocate and former additional solicitor general Vikas Singh. “If the purpose... is to ensure that no adverse publicity is given to the government... then it is wrong and it can not withstand judicial scrutiny,” adds Singh. But Cyber Law expert Pawan Duggal says, “Blocking of websites is a 20th century solution to a 21st century problem. While the government’s intention is noble, the implementation is tardy and faulty.”
Courts can gag Media
The Supreme Court has even ruled that courts can gag the media to prevent reporting on sub-judice cases. “The idea that you can impose a ban on the press to protect rights of an accused is abhorrent,” says senior advocate Rajiv Dhavan.
Why is it that there is now clamour for checks on the media, including social media? Former US President Thomas Jefferson said: “There are rights which it is useless to surrender to the government and which governments have yet always been found to invade. These are the rights of thinking and publishing our thoughts by speaking or writing.” These words remain relevant even now.
Right to speak & right to offend
A look at how India’s right to freedom of speech and expression compares to the world
The US protects the right to freedom of expression which consists of the freedom of speech, press, assembly and to redress. It protects against government interference. In the context of sedition, prosecutions are rare. But sedition remains a crime under a federal statute which punishes seditious conspiracy to overthrow the federal government by force. In terms of contempt of court, freedom of press absolute. Any interference with the media’s freedom to access, report and comment upon ongoing trials is unlawful. Religious civil liberties are guaranteed. It upholds the free exercise of religion. Artistic creations are protected. The government is forbidden to suppress the creation or distribution of any music, play, painting, sculpture, photograph, film, or even comic book. The US Supreme Court has protected flag desecration as free speech but a debate is on as the government wants to overrule the SC by an amendment.
The unwritten constitution does not define freedom of speech and expression therefore it is vast and liberal. There are of course restrictions for extremem cases like speech or behavior likely to breach peace or incite terror, dissemination of terrorist publications, obscenity, defamation and classified material. Sedition was once an offence but in 2009 both sedition and seditious libel were abolished. Contempt law seeks a balance between fair trial rights and free media rights. Courts can postpone publication of a report if it prejudices administration of justice. Religious liberties are guaranteed with restrictions on incitement to hatred. People are free to express their beliefs. Worship, teaching and practice of the belief are protected too. Artistic freedom is subject to restrictions of obscenity: corruption of public morals, outraging public and defamation. But it can be defended on literary merit.
Constitution does not expressly protect freedom of speech or expression but court rulings have held it’s implied in the constitution. One can be charged with sedition for use/intention of violence to overthrow the State or indulge in violence against other groups in the community. The country does not have an official religion, does not enforce any religious doctrine and religious practices must conform to law. There are laws against inciting hatred against others because of culture, ethnicity or background. Australian courts can impose publication bans to regulate their own proceedings. Contempt laws deal with reporting of court proceedings and the publication of such material that interferes with the pending proceedings. Artistic freedom exists provided it does not amount to blasphemy, profanity, defamation, obscenity, sedition, vilification and incitement. But prosecution in such cases is rare.
The right to freedom of speech and expression is guaranteed to citizens. Its scope has been widened by judicial pronouncements. It includes expression of opinion via any medium. The Indian Penal Code provides for a sedition charge. But it is a repressive colonial remnant. An SC ruling narrowed its application. It has been used in the past against the media, activists, artists, and intellectuals. The constitution also grants freedom of religion. All religions are equal before law. Freedom of the press is founded under freedom of speech. Contempt laws exist but we strive to maintain a balance between free speech and fair trial. The SC has drawn from the law to order postponement of publication as a last resort. Artists enjoy freedom, but at times come under attack for allegedly hurting religious sentiments, such as MF Husain. Cartoonist Aseem Trivedi was arrested for allegedly insulting the national emblem.
Their Bill of Rights deals with freedom of expression including freedom (of media, to receive/impart information, of artistic creativity, academic freedom and scientific research). Post-apartheid era, freedom improved considerably. The crime of sedition continues to exist, but courts severely curtailed it. The courts have articulated a robust defence of freedom of expression. It is subject to a few narrow exceptions. Only a direct and successful call for violence or disorder can be called sedition. The law protects freedom of religion. It is tolerant of diversity. Contempt laws are fairly liberal. It is usually punished with a fine. Imprisonment is there only in serious cases. Artistic creativity is protected. Recently a portrait of President Jacob Zuma entitled “The Spear,” which depicted Zuma in a Soviet propaganda pose with his genitals exposed which gave rise to a huge political debate.
Post mid-80s freedom of expression was constitutionally guaranteed. Expression of intellectual, artistic, scientific, and communications activities is free of censorship. But, like in India, Brazil has laws which criminalise desecration of religious artifacts, hate speech, racism, defamation and libel. However it has not succeeded in building effective democratic bodies to govern media. The Charter of Religious Liberty helps galvanise freedoms of belief. It recognises freedoms enjoyed by all communities. Brazilian law also defines treason. Treason during warfare is the only crime for which death sentence exists. The constitution guarantees a free press. But courts often hamper reporting of criminal cases. Internet access is not generally restricted. But, the judiciary has grown aggressive in its attempts to regulate content. Artistic freedom is not restricted by censorship or license.
The Chinese constitution does guarantee the freedom of speech, publication, assembly, procession and demonstration but all its physical manifestations are curtailed, on the pretext of maintaining social order. The term ‘disturbing social order’ has been extended to criminalise actions ranging from peaceful protests to critical publications. This broad interpretation allows police to investigate activists and charge them with serious crimes. Religious activities outside the recognised religions of Buddhism, Taoism, Christianity and Islam are prohibited. Practicing any other religion leads to arrest, detention or fine. Information about proceedings is often hard to obtain and leaks from court officials are punished. An extensive censorship bureaucracy licenses media outlets and publishing houses. Artistic and creative freedom is restricted with so-called Chinese art serving the official agenda.
Iran guarantees freedom of expression but can curb it with regard to security considerations. Sedition laws suppress those who try to create a rift between the establishment. As per their blasphemy law, blasphemers are charged with “spreading corruption on earth”. The law complements laws against criticising the Islamic regime, insulting Islam, and publishing materials that deviate from Islamic standards. The regime uses these laws to persecute religious minorities, dissidents and journalists. Many newspapers and websites have been banned and scores of Iranian journalists and bloggers arrested after criticising government officials/policy. Media restriction includes banning of satellite TV, student publications, books, newspapers, or magazines from criticising the government, and filtering material on the Net. Artistic freedom is repressed with many artists fleeing the country.
The Cuban constitution recognises the right to speech and press but also states that this freedom must conform to the state’s needs, and that these freedoms can be exercised only in the state media. Cuban law provides for imprisonment for anyone who collaborates with the enemy’s media. The Cuban Criminal Code’s definition of sedition explicitly includes non-violent opposition to the government. Those who “perturb the socialist order […], or impede the completion of any sentence, legal disposition or measure dictated by the government, or by a civil or military authority in the exercise of their respective functions, or refuse to obey them” can face from 10-20 years in prison, even if they do so “without […] employing violence.” Freedom of religion is not fully available and persecution of those who publicly profess a creed exists. The state maintains a monopoly on all media. Artists continuously face cultural imperialism.
— Upasana Mukherjee