Freedom of Speech – Defamation, Sedition, etc.

Should a colonial era legislation that has the potential to chill free speech be allowed to remain on the statute book? Revisit a short summary of one of the most misused section of colonial era.

Freedom of Speech – Defamation, Sedition, etc.

India at 75 is ready for a sedition-less future

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Freedom of speech and restrictions on it

Mains level : Paper 2- Issues with Section 124A of Indian Constitution

Context

Chief Justice of India N V Ramana has ignited a passionate debate during a preliminary hearing concerning whether “sedition” should be an offence at all, and how to prevent its misuse or abuse, were it to remain

Issues with the sedition under Section 124A

  • Against fundamental right: The meandering meanings of expressions such as “disaffection” towards the government, “hatred”, “contempt” etc. constitute an unreasonable restriction on the fundamental right to free expression guaranteed under Article 19(1)(a).
  • Neither the framers of the Constitution nor the authors of the amended Article 19(2) included “sedition” as a ground for “reasonable restriction” to freedom of speech and expression.
  • Colonial past: CJI Ramana in preliminary hearings has pointedly asked the Attorney General whether “sedition under Section 124A of the Indian Penal Code is still required after 75 years of independence from colonial rule.
  • Prone to misuse: The lack of definition of terms used in the section leaves vide the scope for interpretation and thus rampant misuse and abuse.

Way forward

  • Some law luminaries have found new stirrings of hope in the Supreme Court to strike it down.
  • Find means to prevent misuse and abuse: Alternative way,as the learned attorney general observed is to find constitutional ways and practical means to prevent the abuse and misuse of law.
  • Forbid rampant private complaints:  A most immediate step is to forbid rampant private complaints by citizens and authorise only very senior police officials to take appropriate action.

Conclusion

What Gandhiji said — the law may not be used to “manufacture affection” under pain of a penal sanction — was as true then as it remains now. It is high time to realise that the law of “sedition” must go, even when it may strictly not even exist!

Freedom of Speech – Defamation, Sedition, etc.

Surveillance reform is the need of the hour

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 19 and 21

Mains level : Paper 3- Issues with surveillance by the government

Context

The ‘Pegasus Project’ report says that over “300 verified Indian mobile telephone numbers, including those used by ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, rights activists and others”, were targeted using spyware made by the Israeli firm, NSO Group.

Threat to press freedom

  • Revelations highlight a disturbing trend with regard to the use of hacking software against dissidents and adversaries.
  • A significant number of Indians reportedly affected by Pegasus are journalists.
  • This is not surprising since the World Press Freedom Index produced by Reporters Without Borders has ranked India 142 out of 180 countries in 2021. 
  • The press requires (and in democracies is afforded) greater protections on speech and privacy.
  • Privacy and free speech are what enable good reporting.
  • This has been recognised in Supreme Court decisions.
  • In the absence of privacy, the safety of journalists, especially those whose work criticises the government, and the personal safety of their sources is jeopardised.
  • Such a lack of privacy, therefore, creates an aura of distrust around these journalists and effectively buries their credibility.

Issues with the legal provision

  • Provisions of law under the Indian Telegraph Act of 1885 and the Information Technology (IT) Act of 2000 are used by the government for its interception and monitoring activities. 
  • While the provisions of the Telegraph Act relate to telephone conversations, the IT Act relates to all communications undertaken using a computer resource.
  • Both provisions are problematic and offer the government total opacity in respect of its interception and monitoring activities.
  • Section 69 of the IT Act and the Interception Rules of 2009 are even more opaque than the Telegraph Act, and offer even weaker protections to the surveilled.
  • No provision, however, allows the government to hack the phones of any individual since the hacking of computer resources, including mobile phones and apps, is a criminal offence under the IT Act.

Issues with surveillance system

  • Surveillance itself, whether under a provision of law or without it, is a gross violation of the fundamental rights of citizens.
  • Violation of freedom of speech: The very existence of a surveillance system impacts the right to privacy and the exercise of freedom of speech and personal liberty under Articles 19 and 21 of the Constitution, respectively.
  • It prevents people from reading and exchanging unorthodox, controversial or provocative ideas.
  • No scope for judicial scrutiny: There is also no scope for an individual subjected to surveillance to approach a court of law prior to or during or subsequent to acts of surveillance since the system itself is covert.
  • No oversight: In the absence of parliamentary or judicial oversight, electronic surveillance gives the executive the power to influence both the subject of surveillance and all classes of individuals, resulting in a chilling effect on free speech.
  • Against separation of power: Constitutional functionaries such as a sitting judge of the Supreme Court have reportedly been surveilled under Pegasus.
  • Vesting such disproportionate power with one wing of the government threatens the separation of powers of the government.
  • The existing provisions are insufficient to protect against the spread of authoritarianism since they allow the executive to exercise a disproportionate amount of power.

Way forward

  • There needs to be oversight from another branch of the government.
  • Judicial oversight: Only the judiciary can be competent to decide whether specific instances of surveillance are proportionate, whether less onerous alternatives are available, and to balance the necessity of the government’s objectives with the rights of the impacted individuals.
  • Surveillance reforms: Not only are existing protections weak but the proposed legislation related to the personal data protection of Indian citizens fails to consider surveillance while also providing wide exemptions to government authorities.
  • Surveillance reform is the need of the hour in India.

Consider the question “Discuss the threats posed by the use of surveillance systems by the government. Suggest the measures to deal with these threats.”

Conclusion

The only solution to the problem of spyware is immediate and far-reaching surveillance reform.

Freedom of Speech – Defamation, Sedition, etc.

Explained: Shreya Singhal case that struck down Section 66A of IT Act

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Shreya Singhal Case

Mains level : Section 66A

Six years after it struck down Section 66A of the Information Technology Act, 2000, the Supreme Court earlier this month termed its continued use by law enforcement agencies of various states as “a shocking state of affairs” and sought a response from the Centre.

What did Section 66A do?

  • Introduced in 2008, the amendment to the IT Act, 2000, gave the government power to arrest and imprison an individual for allegedly “offensive and menacing” online posts, and was passed without discussion in Parliament.
  • Section 66A empowered police to make arrests over what policemen, in terms of their subjective discretion, could construe as “offensive” or “menacing” or for the purposes of causing annoyance, inconvenience, etc.
  • It prescribed the punishment for sending messages through a computer or any other communication device like a mobile phone or a tablet, and a conviction could fetch a maximum of three years in jail.
  • In 2015, the apex court struck down the law in the landmark case Shreya Singhal v. Union of India, calling it “open-ended and unconstitutionally vague”, and thus expanded the contours of free speech to the Internet.

Why was the law criticized?

  • The problem was with the vagueness about what is “offensive”.
  • The word having a very wide connotation was open to distinctive, varied interpretations.
  • It was seen as subjective, and what might have been innocuous for one person, could lead to a complaint from someone else and, consequently, an arrest arbitrarily.

So, how did 66A come under the Supreme Court’s scrutiny?

  • The first petition came up in the court following the arrest of two girls in Maharashtra by Thane Police in November 2012 over a Facebook post.
  • The girls had made comments on the shutdown of Mumbai for the funeral of a political leader.
  • The arrests triggered outrage from all quarters over the manner in which the cyber law was used.
  • The petition was filed by Shreya Singhal, then a 21-year-old law student.

What were the grounds for the challenge?

  • The objective behind the 2008 amendment was to prevent the misuse of information technology, particularly through social media.
  • The petitioners argued that Section 66A came with extremely wide parameters, which allowed whimsical interpretations by law enforcement agencies.
  • Most of the terms used in the section had not been specifically defined under the Act.
  • The law was a potential tool to gag legitimate free speech online and to curtail freedom of speech and expression guaranteed under the Constitution, going far beyond the ambit of “reasonable restrictions” on that freedom.

What did the Supreme Court decide?

  • In March 2015, a bench of Justices J. Chelameswar and R.F. Nariman ruled in Shreya Singhal v. Union of India declared Section 66A unconstitutional for “being violative of Article 19(1)(a) and not saved under Article 19(2).”
  • Article 19(1)(a) gives people the right to speech and expression whereas 19(2) accords the state the power to impose “reasonable restrictions” on the exercise of this right.
  • The decision was considered a landmark judicial pushback against state encroachment on the freedom of speech and expression.
  • The bench also read down Section 79– now at the centre of the ongoing “intermediary liability” battle between the Centre and micro-blogging platform Twitter– defining key rules for the relationship between governments and commercial internet platforms.
  • Section 79 says that any intermediary shall not be held legally or otherwise liable for any third party information, data, or communication link made available or hosted on its platform.

Freedom of Speech – Defamation, Sedition, etc.

Sedition Law and its discontents

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Freedom of Speech

Mains level : Sedition law and Free speech

The CJI is now convinced that sedition law (IPC 124A) is being misused by the authorities to trample upon citizens’ fundamental rights of free speech and liberty.

What does Section 124A of the IPC say?

  • The section deals with the offence of sedition, a term that covers speech or writing, or any form of visible representation, which brings the government into hatred or contempt, or excites disaffection towards the government, or attempts to do so.
  • It is punishable with three years in prison or a life term.
  • “Disaffection”, it says, includes disloyalty and feelings of enmity.
  • However, it also says expressing disapproval of government measures or actions, with a view to getting them changed by lawful means, without promoting hatred or disaffection or contempt towards the government will not come under this section.

What is its origin?

  • Colonial past: Sedition was introduced in the penal code in 1870, a decade after the Indian Penal Code came into force.
  • It was a colonial law directed against strong criticism of the British administration.
  • Putting curb on Freedom fighters: Its most famous victims included Bal Gangadhar Tilak and Mahatma Gandhi.
  • Gandhi called it “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.

Is it constitutionally valid?

  • Violative of FRs: Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
  • Reasonable restrictions: The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
  • Kedar Nath Case: Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
  • At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
  • Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, are not an offence under this section.

Why the controversy now?

  • Frequent use: In recent times, the resort to this section is seen as disturbingly frequent.
  • Curbing dissent: Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
  • Misuse for propaganda: Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
  • Irrelevance: Many of them have also been detained under the National Security Act and UAPA.

What is being debated about it?

  • Liberals and rights activists have been demanding the scrapping of Section 124A.
  • It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.
  • The Law Commission has also called for a reconsideration of the section.
  • It has pointed that Britain abolished it more than a decade ago and raised the question of whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.
  • Some argue that a presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or bodies.

What has the apex court observed?

  • Justice D.Y. Chandrachud had flagged the indiscriminate use of the sedition law against people who aired their grievances about the government’s COVID management.
  • People have been charged even for seeking help to gain medical access, equipment, drugs and oxygen cylinders, especially during the second wave of the pandemic.
  • Justice U.U. Lalit, in his recent judgment, quashed a sedition case against a person for his alleged remarks about the PM and the Union Government.

Way forward

  • The time is long past when the mere criticism of governments was sufficient to constitute sedition.
  • The right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness, the CJI has recorded.

Try answering this PYQ:

Q.With reference to Rowlatt Satyagraha, which of the following statements is/are correct?

  1. The Rowlatt Act was based on the recommendations of the ‘Sedition Committee’.
  2. In Rowlatt Satyagraha, Gandhiji tried to utilize the Home Rule League.
  3. Demonstrations against the arrival of Simon Commission coincided with Rowlatt Satyagraha.

Select the correct answer using the code given below:

(a) 1 only

(b) 1 and 2 only

(c) 2 and 3 only

(d) 1, 2 and 3

Freedom of Speech – Defamation, Sedition, etc.

Testing the constitutionality of section 124A of IPC

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Testing the constitutionality of section 124A

The article highlights the issues with section 124A of the Indian Penal Code and suggests a review of its constitutionality in Kedar Nath judgement by a larger bench.

About section 124A of IPC

  • Section 124A of the IPC contains the law of sedition.
  • This law was enacted by the British colonial government in 1870 with the sole object of suppressing all voices of Indians critical of the government.
  • The gist of the offence is: bringing or attempting to bring the government into contempt or hatred, or exciting or attempting to excite disaffection towards the government.
  • It categorises four ways sources of seditious acts: spoken words, written words, signs or visible representations.
  • There are three explanations attached to this section.
  • The first explanation says that ‘disaffection’ includes disloyalty and all feelings of enmity.
  • The second and third explanations say that one can comment on the measures of the government without bringing or attempting to bring it into contempt or hatred or exciting or attempting to excite disaffection towards the government.

What did Supreme Court say in Kedar Nath case (1962)

  • In the ultimate analysis, the judgment in Kedar Nath which read down Section 124A and held that without incitement to violence or rebellion there is no sedition.
  •  It says that ‘only when the words written or spoken etc. which have the pernicious tendency or intention of creating public disorder’ the law steps in.
  • So if a policeman thinks that a cartoon has the pernicious tendency to create public disorder, he will arrest that cartoonist.
  • The Kedar Nath judgment makes it possible for the law enforcement machinery to easily take away the fundamental right of citizens.

Violation of Article 19

  • Sedition, as defined in Section 124A of the IPC, clearly violates Article 19(1)(a) of the Constitution which confers the Fundamental Right of freedom of speech and expression.
  • Further, this section does not get protection under Article 19(2) on the ground of reasonable restriction.
  • However, the Supreme Court invoked the words ‘in the interest … of public order’ used in Article 19(2) and held that the offence of sedition arises when seditious utterances can lead to disorder or violence.
  • This act of reading down Section 124A brought it clearly under Article 19(2) and saved the law of sedition from being declared unconstitutional.

Consider the question “What are the issues with section 124A of Indian Penal Code? Examine the interplay between Article 19 and section 124 of IPC.”

Conclusion

People will display disaffection towards a government which has failed them. The law of sedition which penalises them for hating a government which does not serve them cannot exist because it violates Article 19(1)(a) and is not protected by Article 19(2). Therefore, an urgent review of the Kedar Nath judgement by a larger Bench has become necessary.

Freedom of Speech – Defamation, Sedition, etc.

Protecting human rights in digital era

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Tackling disinformation

The article highlights the issues mentioned in the UNHRC report on disinformation and freedom of expression.

UNHRC Report: Upholding human rights helps dealing with falsehood

  • The UN Human Rights Council (UNHRC) Special Rapporteur  submitted her report on “Disinformation and Freedom of Opinion and Expression” recently.
  • The UNHRC report specifically speaks of information disorder that arises from disinformation.
  • Impact of disinformation: Such information disorder leads to politically polarisation, hinders people from meaningfully exercising their human rights, and destroys their trust in governments and institutions.
  • Human rights provide a powerful and appropriate framework to challenge falsehoods and present alternative viewpoints.
  • Upholding human rights is useful in dealing with falsehood in two ways:
  • 1) Freedom of opinion and expression enables governance and development.
  • 2) Civil society, journalists and others are able to challenge falsehoods and present alternative viewpoints.
  • So, the report says that human rights friendly governance is both possible and doable; it is also desirable, as it protects political power against itself.

Review of the business model needed

  • The report asserts that reactive content moderation efforts” are unlikely to make any worthwhile difference in the absence of a serious review of the business model that underpins much of the drivers of disinformation and misinformation.
  • Problems of inconsistent application of companies’ terms of service, inadequate redress mechanisms and a lack of transparency and access to data re-emerge constantly.
  • Aalthough the platforms are global businesses, they do not appear to apply their policies consistently across all geographical areas or to uphold human rights in all jurisdictions to the same extent.

Need for legislative clarity on twin concept of misinformation and disinformation

  • The report highlights the lack of legislative and judicial clarity on the twin concepts of “disinformation” and “misinformation”.
  • It emphasises that the intention to harm is decisive to the disinformation.
  • “Disinformation” is false information disseminated intentionally to cause serious social harm.
  • In contrast, misinformation consists in the dissemination of false information unknowingly.
  • Nor are these terms to be used interchangeably.
  • Acknowledging the fact that “extremist or terrorist groups” frequently engage in the dissemination as part of their propaganda to radicalise and recruit members, the report disfavours any state response that adds to human rights concerns.

Other factors contributing to growth of disinformation

  • The growth of disinformation in recent times cannot be attributed solely to technology or malicious actors, according to the report.
  • Other factors such as digital transformation and competition from online platforms, state pressure, the absence of robust public information regimes, and digital and media literacy among the general public also matter.
  • Moreover, disinformation enhance the frustrations and grievances such as economic deprivation, market failures, political disenfranchisement, and social inequalities.
  • Disinformation is thus not the “cause but the consequence of societal crises and the breakdown of public trust in institutions”.
  • Strategies to address disinformation will succeed only when these underlying factors are tackled.

Issue of use of disinformation by states

  • A 2020 Oxford study of “Industrialised Disinformation” mentions that as many as “81 governments” use “social media to spread computational propaganda and disinformation about politics”.
  • Some authoritarian countries like Russia, China and Iran capitalised on coronavirus disinformation to amplify anti-democratic narratives.
  • Online disinformation also results in offline practices of violent social excursion on actually existing individuals and communities such as ethnic, gender, migrant, sexual minorities.

Consider the question “Reactive content moderation efforts are simply inadequate without a serious review of the business model that underpins much of the drivers of disinformation and misinformation on the social media platforms.” Critically examine.”

Conclusion

Will future itineraries of human rights in the digital era repeat past mistakes? The report offers grist to the mill for profound thought and conscientious action.

Freedom of Speech – Defamation, Sedition, etc.

A national consensus on removal of sedition law is called for

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Section 124-A issue

Is the government entitled to the love and affection of the citizens? Answer to this question lies in the Kedar Nath judgment recently invoked by the Supreme Court in a case against a journalist. The article deals with this issue.

About the Kedar Nath judgement

  • A two-judge bench of the Supreme Court observed that every journalist is entitled to the protection under the Kedar Nath judgment (1962) on the petition filed by journalist Vinod Dua.
  • The court entertained Dua’s writ petition under Article 32.
  • In the Kedar Nath judgement, the apex court had held that a citizen has the right to say or write whatever he likes about the government or its measures by way of criticism so long as he does not incite people to violence against the government or with the intention of creating public disorder.
  • Section 124A read along with explanations is not attracted without such an allusion to violence. 

Increasing use of the sedition law

  • NCRB data shows that between 2016 to 2019, there has been a whopping 160 per cent increase in the filing of sedition charges with a conviction rate of just 3.3 per cent.
  • Of the 96 people charged in 2019, only two could be convicted.
  • A number of CAA (Citizenship Amendment Act) protesters are facing sedition charges.

Background of Section 124-A

  • Section 124-A was not a part of the original Indian Penal Code drafted by Lord Macaulay and treason was confined just to levying war.
  • It was inserted in 1870 in response to the Wahabi movement that had asked Muslims to initiate jihad against the colonial regime.
  • It was argued that Wahabis are going from village to village and preaching that it was the sacred religious duty of Muslims to wage a war against British rule.

Way forward

  • In 2018, the Law Commission had recommended that the sedition law should not be used to curb free speech.
  •  Let the criminal law revision committee working under the Ministry of Home Affairs make the bold recommendation of dropping the draconian law.
  • A political consensus needs to be forged on this issue.

Conclusion

No government, as Mahatma Gandhi told Judge R S Broomfield, has a right to love and affection and people in a free country committed to the liberty of thought and freedom of expression should not be criminally punished for expressing their opinion about the government.

Freedom of Speech – Defamation, Sedition, etc.

Should Sedition law be scrapped?

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Freedom of Speech

Mains level : Kedarnath Singh Guidelines

The Supreme Court has quashed the case of sedition filed against a journalist in Himachal Pradesh for allegedly making remarks against PM and the government’s handling of the migrant crisis during the Covid-19 lockdown last year.

What is the story?

  • In a video, the journalist had criticized PM Modi and the Centre for the handling of the migrant crisis last year.
  • A sedition case was filed against him under Section 124A of the IPC which penalizes sedition as punishable with either imprisonment ranging from three years to a lifetime, a fine, or both.
  • He was charged for spreading misinformation or incorrect information and cause panic in the perception of the general public.

What has the court ruled?

  • The case was quashed by SC. It held that his remarks constituted genuine criticism of the government and could not be labeled seditious.
  • In doing so, the court also reiterated the principles in the landmark case on sedition — Kedar Nath Singh v Union of India (1962).

What are the Kedar Nath Singh guidelines?

  • In the landmark 1962 Kedar Nath Singh case, the Supreme Court upheld the constitutional validity of the sedition law, it attempted to restrict its scope for misuse.
  • The court held that unless accompanied by incitement or call for violence, criticism of the government cannot be labeled sedition.

Seven principles in the Kedar Nath Singh ruling specify situations in which the charge of sedition cannot be applied:

  1. The expression “ ‘the Government established by law’ has to be distinguished from the persons for the time being engaged in carrying on the administration. ‘Government established by law’ is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.”
  2. The effect of subverting the Government by bringing that Government into contempt or hatred, or creating disaffection against it, would be within the penal statute because the feeling of disloyalty to the Government established by law or enmity to it imports the idea of a tendency to public disorder by the use of actual violence or incitement to violence.
  3. Comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal.
  4. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.
  5. The provisions of the Sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.
  6. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.
  7. The court proposed to limit its operation only to such activities as come within the ambit of the observations of the Federal Court, that is to say, activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.

What has been the impact of that verdict?

  • The significance of the verdict lies in the Supreme Court’s subsequent reiteration of the Kedar Nath Singh principles.
  • A fresh constitutional challenge by two journalists against the sedition law pending before the Supreme Court, and the ruling in Dua’s case, make a strong case against keeping the colonial law in the books.

Freedom of Speech – Defamation, Sedition, etc.

IBF to cover Streaming Platforms

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Indian Broadcasting Foundation

Mains level : Self regulation by electronic media

The Indian Broadcasting Foundation (IBF), the apex body of broadcasters, is expanding its purview to cover digital streaming platforms and will be renamed the Indian Broadcasting and Digital Foundation (IBDF).

Why such a move?

  • The move would bring broadcasters and OTT (over-the-top) platforms, which have seen a substantial jump in their viewership base after the pandemic, under one roof.
  • For this, the IBDF was in the process of forming a new wholly-owned subsidiary to handle all matters of digital media, an official statement said.
  • The IBDF would also form a self-regulatory body, the Digital Media Content Regulatory Council (DMCRC), for digital OTT platforms.

Indian Broadcasting Foundation

  • The IBF is a unified representative body of television broadcasters in India.
  • The organization was founded in the year 1999. Over 250 Indian television channels are associated with it.
  • The organization is credited as the spokesman of the Indian Broadcasting Industry.
  • The IBF is the parent organization of the Broadcasting Content Complaints Council (BCCC) which was set up in the year 2011.
  • The BCCC examines content-related complaints relating to all non-news general entertainment channels in India.

Note: The IBF has no statutory backing.

Freedom of Speech – Defamation, Sedition, etc.

Panel to define offences of Speech, Expression

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Hate Speech vs Free Speech

A panel constituted by the Union Home Ministry to suggest reforms to the British-era Indian Penal Code (IPC) is likely to propose a separate Section on “offences relating to speech and expression.”

Panel to define hate speech

  • As there is no clear definition of what constitutes a “hate speech” in the IPC, the Committee for Reforms in Criminal Laws is attempting for the first time to define such speech.
  • Legally speaking, for criminal Sections to be invoked, any such speech has to lead to violence or disturbance of law and order.

What constitutes Hate Speech?

  • Hate speech can be defined as “public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, sex, or sexual orientation”.
  • The word ‘hate speech’ as is a loaded term and merely criticizing someone is not hate speech.
  • There has been much debate over freedom of speech, hate speech and hate speech legislation.

Indian attempts for definition

  • The Bureau of Police Research and Development recently published a manual for investigating agencies on cyber harassment cases.
  • It has defined hate speech as a language that denigrates, insults threatens or targets an individual based on their identity and other traits (such as sexual orientation or disability or religion etc.).
  • Earlier in 2018, the Home Ministry had written to the Law Commission to prepare a distinct law for online “hate speech”.
  • A committee was formed in the wake of Section 66A of the IT Act, 2000, which provided punishment for sending offensive messages through communication services.
  • In 2019, however, the Ministry decided to overhaul the IPC, framed in 1860 and the Code of Criminal Procedure (CrPC) after seeking suggestions from various stakeholders.

Recommendations of various committees

  • The Viswanathan committee proposed inserting Sections 153 C (b) and Section 505 A in the IPC for incitement to commit an offence on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe.
  • It proposed punishment by up to two years along with ₹5,000 fine.
  • The Bezbaruah Committee was constituted by the Centre in February 2014 in the wake of series of racial attacks on persons belonging to the northeast.
  • It proposed amendment to Section 153 C IPC (promoting or attempting to promote acts prejudicial to human dignity), punishable by five years and fine or both and Section 509 A IPC (word, gesture or act intended to insult a member of a particular race), punishable by three years or fine or both.

Freedom of Speech – Defamation, Sedition, etc.

India retains 142 of 180 spot in World Press Freedom index

Note4Students

From UPSC perspective, the following things are important :

Prelims level : World Press Freedom Index

Mains level : Paper 2- Freedom of press in India

Where India stands on freedom of press

  • India is ranked at 142 out of 180 countries on the World Press Freedom Index 2021.
  • India at142th position is same as last year, after it had consistently slid down from 133 in 2016.
  • In the South Asian neighbourhood, Nepal is at 106, Sri Lanka at 127, Myanmar (before the coup) at 140, Pakistan at 145 and Bangladesh at 152.
  • The index is published by the international journalism not-for profit body, Reporters Without Borders (RSF).
  • China is ranked 177, and is only above North Korea at 179 and Turkmenistan at 178.

What the report said about India

  • The report released on Tuesday stated that India shares the “bad” classification with Brazil, Mexico and Russia.
  • RSF has highlighted that the “campaigns are particularly violent when the targets are women”.
  • Further, it said that criminal prosecutions are meanwhile “often used to gag journalists critical of the authorities” with sections for sedition also used.
  • Speaking about the larger Asia-Pacific region, the report mentioned that “instead of drafting new repressive laws in order to impose censorship, several of the region’s countries have contented themselves with strictly applying existing legislation that was already very draconian – laws on ‘sedition,’ ‘state secrets’ and ‘national security’.”
  • The report has also highlighted throttling of freedom of expression on social media, and specifically mentioned that in India the “arbitrary nature of Twitter’s algorithms also resulted in brutal censorship”

Measures adopted by India to improve ranking

  • The Indian government has been concerned about its low rankings in such international indices, and had last year started studying them to understand how to improve.
  • Soon after the index was released last year, Union Minister for Information and Broadcast  had tweeted on May 2: “Media in India enjoy absolute freedom.”

Freedom of Speech – Defamation, Sedition, etc.

Film Certification Appellate Tribunal (FCAT)

Note4Students

From UPSC perspective, the following things are important :

Prelims level : FCAT

Mains level : Not Much

The Government of India’s decision to abolish the Film Certification Appellate Tribunal (FCAT), under the Tribunal Reforms Ordinance, 2021, has triggered a wave of criticism with filmmakers.

The FCAT was the place filmmakers walked into as a penultimate resort to challenging edits suggested to their films by the Central Board of Film Certification (CBFC).

Plunging into crisis

  • FCAT is only one of many tribunals in the country that were either abolished or amalgamated under the Ordinance.
  • Earlier, if a filmmaker fails to clear the Examining Committee (EC) and Revising Committee (RC) hurdles of the CBFC, the FCAT was the next step of recourse, but that is no longer the case.
  • FCAT only charged a nominal fee to hold the screening for its members, and it would pass its judgment immediately.

Fighting the system

  • FCAT’s panel is predominantly made up of members from industry veterans who arrive at a judgment after balancing both CBFC and the filmmaker’s points of view.
  • Most of CBFC’s decisions were overruled by the Tribunal and that has reassured constitutional rights under Article 19 to filmmakers to express themselves freely.
  • A judge will only look at the issue from a legal perspective, not whether a particular edit will constrict the flow of the movie.

Re-classifying certification

  • To avoid such issues, the Government constituted the ‘Shyam Benegal Committee’ in January 2016.
  • The committee recommended regulations for film certification — a move away from the current practice adopted by CBFC, and submitted its report in April 2016.
  • According to many, a revamp of the certification system that doesn’t require censoring or cuts is the need of the hour.

Freedom of Speech – Defamation, Sedition, etc.

The IT Rules 2021 seek regulatory parity, but threaten to curb creative freedom

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Section 69A of IT Act

Mains level : Paper 2- Issues with the IT Rules 2021

The article argues that IT Rules 2021 far exceeds the rulemaking power granted under Section 69A of the IT Act.

Censoring online video streaming

  • Online video streaming platforms have marked a new dawn for the Indian entertainment industry.
  • The spectre of government regulation and criminalisation haunts this fledgling industry.
  • There have been various efforts to censor online video streaming platforms by petitioning the courts for a long time.
  • At least 23 petitions were being heard by different high courts on the issue of regulation of online video streaming platforms.
  • The grievances range from wounded religious sentiments to moral outrage against depictions of sexuality but the common thread that unites them is a desire to control what other citizens may watch in the privacy of their homes.
  • In addition to petitions seeking heavy-handed regulation, criminal proceedings have been initiated against employees of companies like Netflix and Amazon Prime.
  • While such FIRs may be in the context of specific films or shows, they cause substantial harassment and threaten the personal liberty of content creators and company executives.

IT Rules 2021 exceeds the rulemaking power under Section 69A of IT Act

  • The imposition of any kind of criminal liability under the IT Rules 2021 would far exceed the central government’s rule-making power under Section 69A of the IT Act.
  • The existing three-tier regulatory mechanism and content classification system prescribed under the rules are also unconstitutional for the same reason.
  • The following three issues need to be considered while considering the IT Rules 2021.
  • First, the powers under Section 69A can be exercised only in the interest of the sovereignty, defence, security of the State, friendly relations with foreign States or public order or for preventing incitement etc.
  • The implication is that the powers under Section 69A cannot be used to regulate online content which may be obscene or sexually explicit.
  • Second, Section 69A states that the central government may direct “any agency of the Government or intermediary” to block access to online content but online video streaming platforms do not fall into either of these two categories.
  • Companies like Netflix and Amazon Prime commission or license the films and shows available on their platforms, and they are not an “intermediary” under the IT Act.
  • Third, Section 69A only grants the central government the power to “block for access by the public or cause to be blocked for access by the public any information generated, transmitted, received, stored or hosted in any computer resource.”
  • However, the range of powers granted under the IT Rules 2021 is much broader and includes requiring an apology or disclaimer, re-classification of content and deletion or modification of content.
  • As a result, the IT Rules 2021 significantly expand the scope of powers available under Section 69A.

Issues with the three-tier regulatory framework

  • The three-tier regulatory framework created under the rules suffers from the substantive problem of lack of independence.
  • The third tier, which is the Inter-Departmental Committee, comprises entirely of bureaucrats and there is no guaranteed representation from the judiciary or civil society.
  • The Review Committee constituted under Rule 419A of the Indian Telegraph Rules, 1951 also solely consists of officials belonging to the executive branch.

Way forward

  • The solution is to start afresh with publication of a white paper which clearly outlines the harms that are sought to be addressed through regulation of online video streaming platforms and meaningful public consultation which is not limited to industry representatives.
  • If regulation is still deemed to be necessary, then it must be implemented through legislation that is debated in Parliament instead of relying upon Section 69A of the IT Act.

Consider the question “The IT Rules 2021 have been criticised for exceeding the rulemaking power under Section 69A of the IT Act. Examine the scope of the criticism.”

Conclusion

Many of the changes that the central government seeks to implement through the IT Rules 2021 may be well-intentioned and desirable. However, constitutional due process cannot be sacrificed at the altar of expediency

Freedom of Speech – Defamation, Sedition, etc.

[pib] India’s rebuttal to Freedom House Report

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Freedom of speech

Mains level : Free speech related issues

The Freedom House report titled “Democracy under Siege” in which it has been claimed that India’s status as a free country has declined to “partly free”, is misleading, incorrect, and misplaced.

The US who claims to be the champion of Human Rights has turned another sermon to India through its Freedom House Report. This report presents an inherently flawed and biased analysis of Indian democracy.

Rebuttal to specific points

(1) Discriminatory policies against Minorities

  • The GoI treats all its citizens with equality as enshrined under the Constitution of the country and all laws are applied without discrimination.
  • Due process of law is followed in matters relating to law and order, irrespective of the identity of the alleged instigator.
  • With specific reference to the North East Delhi riots in February 2020, the law enforcement machinery acted swiftly in an impartial and fair manner.
  • Proportionate and appropriate actions were taken to control the situation.
  • Necessary legal and preventive actions were taken by the law enforcement machinery on all complaints/calls received, as per law and procedures.

(2) Use of Sedition Law

  • “Public Order’ and ‘Police’ are State subjects under India’s federal structure of governance.
  • The responsibility of maintaining law and order, including investigation, registration, and prosecution of crimes, protection of life and property, etc., rests primarily with the concerned State governments.
  • Therefore, measures as deemed fit are taken by law enforcement authorities to preserve public order.

(3) Government response to COVID-19 through Lockdown

  • Between March 16 to 23, most State governments/UT resorted to partial or full Lockdown in their respective State/ UT based on their assessment of the COVID-19 situation.
  • Any mass movement of people would have spread the disease rapidly throughout the country.
  • The government was fully conscious that during the period of an inevitable Lockdown, people should not face undue distress.
  • India has, on a per capita basis, registered one of the lowest rates of active COVID-19 cases and COVID-19 related deaths globally.

(4) Government response on human rights organizations

  • The Indian Constitution provides for adequate safeguards under various statutes, including the Protection of Human Rights Act 1993 for ensuring the protection of human rights.
  • This Act provides for the constitution of an NHRC and SHRC in the States for better protection of human rights and for matters connected to this subject.

(5) Intimidation of academics and journalists and crackdown on expressions of dissent by media

  • The Indian Constitution provides for freedom of expression under Article 19. Discussion, debate, and dissent are a part of Indian democracy.
  • The GoI attaches the highest importance to the safety and security of all residents of the country, including journalists.
  • It has issued a special advisory to States and UTs on the safety of journalists requesting them to strictly enforce the law to ensure the safety and security of media persons.

(6) Internet shutdowns

  • Temporary suspension of the telecom services, including the internet, is governed under the provisions of the Temporary Suspension of Telecom Services (Public Emergency or Public Safety) Rules, 2017.
  • Hence, the temporary suspension of telecom/internet services is resorted to with the over-arching objective of maintaining law and order under strict safeguards.

(7) FCRA amendment leading to freezing of Amnesty International’s assets has led to declining in ranking

  • Amnesty International had received permission under the FCRA Act only once and that too 20 years ago.
  • Since then Amnesty International, despite its repeated applications, has been denied FCRA approval by successive governments since as per law it is not eligible to get such approval.
  • However, in order to circumvent the FCRA regulations, Amnesty U.K. remitted large amounts of money to four entities registered in India, by misclassifying the remittance as FDI.
  • A significant amount of foreign money was also remitted to Amnesty India without MHA’s approval under FCRA.
  • This malafide rerouting of money was in contravention of extant legal provisions.
  • Owing to these illegal practices of Amnesty, the previous government had also rejected the repeated applications of Amnesty to receive funds from overseas.

Freedom of Speech – Defamation, Sedition, etc.

Freedom in the World Report, 2021

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Freedom of speech

Mains level : Free speech related issues

Freedom in the World 2020: A Leaderless Struggle for Democracy

US-based human rights watchdog Freedom House has accused the present government of driving India toward authoritarianism with a lockdown scapegoating of minorities and a crackdown on critics, and downgraded India’s status from ‘Free’ to ‘Partly Free’, in its annual report.

Freedom in the World Report

  • It is Freedom House’s flagship annual report, assessing the condition of political rights and civil liberties around the world.
  • It is composed of numerical ratings and supporting descriptive texts for 195 countries and 15 territories.
  • The report has been published since 1973, allowing Freedom House to track global trends in freedom over more than 40 years.
  • Freedom House, which is largely funded through U.S. government grants, has been tracking the course of democracy since 1941.

What did the report say?

Political and civil rights

  • India’s freedom score, calculated using indicators of political rights and civil liberties, dropped four points to 67 this year, pulling the country down into the ‘Partly Free’ category.
  • India appears to have abandoned its potential to serve as a global democratic leader, elevating narrow nationalist interests at the expense of its founding values of inclusion and equal rights for all.

Reference to Kashmir

  • In a year when social media censorship has been hotly seated, while the government shut down Internet connectivity in Kashmir as well as on Delhi’s borders, India’s Internet freedom score dropped to just 51.

Crackdown on protesters

  • Last year, the government intensified its crackdown on protesters opposed to a discriminatory citizenship law and arrested dozens of journalists who aired criticism of the official pandemic response.

Judicial Independence

  • It noted that judicial independence had also come under strain.
  • It pointed to the case of a Delhi HC judge who was transferred immediately after reprimanding the police for taking no action during riots in the capital that leftover 50 people dead.

Religious freedom

  • Minorities were disproportionately blamed for the spread of the virus and faced attacks by vigilante mobs.
  • Uttar Pradesh’s law prohibiting forced religious conversion through interfaith marriage was also listed as a concern.

Rising Authoritarianism

  • Rather than serving as a champion of democratic practice and a counterweight to authoritarian influence from countries such as China, the government is tragically driving India itself toward authoritarianism, the report stated.

Freedom of Speech – Defamation, Sedition, etc.

The IT Act new rules and the challenge of Big Tech

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Issues with new Rules under IT Act

The article discusses the issues with the new rules issues under the IT Act.

Issues with the new rules

1) No discussion

  • Last week, the Union Government issued a set of rules under the Information Technology Act, superseding rules issued under Section 79 of that statute in 2011. 
  • This has happened in the absence of open and public discussion and without any parliamentary study and scrutiny.

2) Concerns over legal basis

  • The Union Government has chosen to pass these rules under the requirement to outline the due diligence that Internet intermediaries have to follow in order to be able to claim their qualified legal immunity under Section 79 of the IT Act.
  • These rules at the outset appear unlawful even with respect to whether they could have been issued under the Information Technology Act in the manner chosen by the government, leave alone their constitutionality with respect to fundamental rights.
  • The government’s gazette notification has further claimed that the rules were also issued under the legal authority to specific procedure for blocking web content under Section 69A of the IT Act.
  • However,  rules overseeing government web content blocking powers have already been issued for that section in 2009, and not superseded.

3) Using rule making power to issue primary legislation

  • The ability to issue rules under a statute — i.e. to frame subordinate legislation — is by its nature a limited, constrained power.
  • The executive branch is subordinate to what Parliament has permitted it and cannot use its rule-making power to seek to issue primary legislation by itself.
  • With the present Internet content and social media rules, the Union Government has done precisely that.
  • The executive branch has created new rules that apply only to “significant social media intermediaries” — a term that appears nowhere in the Information Technology Act.
  • The rules have grown to include a chapter on how digital news sites have to be registered before the Ministry of Information and Broadcasting.
  • However, digital news service registration is not required under the IT Act and streaming video content has not been included under the ambit of the Cinematograph Act.

Consider the question “What are the challenges in the regulation of Big Tech to democracies? Suggest the measures to deal with these challenges.”

Conclusion

Instead of advancing Internet content control, India needs to advancing surveillance law reform or enacting a strong statutory data protection framework.

Freedom of Speech – Defamation, Sedition, etc.

Big tech regulation and problems

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Regulation of Big tech and challenges

Article highlights the issues with the growing dominance of social media giants and challenges involved in regulating them.

Issues to consider

1) Conflict of interest

  • Many of the big tech companies were not, as they claimed, mere platforms.
  • This is because they began to curate and generate their own content, creating possible conflicts of interest.

2) Monopoly power

  • There is a suspicion that big tech companies were acquiring more monopoly power leading to lack of free competition.
  • There is a conjunction of technology and finance here.
  • The more companies were valued, the more they needed monopoly rent extraction to be able to justify those valuations.

3) Lack of accountability in algorithms

  • There was an irony in an opaque algorithm being the instrument of a free, open and equitable society.

4) Mixed implications for distribution of wealth

  • While the companies had immense economic impact, their distributive implications were more mixed.
  • They empowered new players, but they also seem to destroy lots of businesses.
  • These companies themselves became the symbol of inequality of economic and political power.

5) Lack of accountability and standards in regulating free speech

  • Big tech companies set themselves up almost as a sovereign power.
  • This was most evident in the way they regulated speech, posing as arbiters of permissible speech without any real accountability or consistency of standards.
  • The prospect of a CEO exercising almost untrammelled authority over an elected president only served to highlight the inordinate power  these companies could exercise.

6) Effects of big tech on democracy and democratisation

  •  The social legitimacy of California Libertarianism came from the promise of a new age of democratic empowerment.
  • But as democracies became more polarised, free speech more weaponised, and the information order more manipulated, greater suspicion was going to be cast on this model.
  • All democracies are grappling with this dilemma.

Big tech in Indian context

  • India will justifiably worry about its own economic interests.
  • India will be one of the largest bases of internet and data users in the world.
  • The argument will be that this should be leveraged to create iconic Indian companies and Indian value addition.
  • India can create competition and be more self-reliant in this space.
  • Pushing back against big tech is not protectionism, because this pushback is to curb the unfair advantages they use to exploit an open Indian market.
  • India can also justifiably point out that in China keeping out tech companies did not make much of a difference to financial flows or investment in other areas.

The real challenge

  • It will be important to distinguish between regulations that are solving some real problems created due to Big tech, and regulation that is using this larger context to exercise more control.
  • It will be easier to address those issues if the government showed a principled commitment to liberty, commitment to root out crony capitalism, an investment in science and technology commensurate with India’s challenges, and a general regulatory independence and credibility.

Consider the question “What are the challenges posed by the dominance of social media giants? Suggest the measures to deal with these challenges.”

Conclusion

We should not assume that just because big tech is being made to kneel, the alternative will be any better.

Freedom of Speech – Defamation, Sedition, etc.

Contours of Twitter-government faceoff

Note4Students

From UPSC perspective, the following things are important :

Prelims level : IT Act

Mains level : Paper 2- Section 69A of IT Act and issues with it

What is the faceoff about

  • Recently, Indian government issued direction to Twitter, ordering it to shut down user accounts connected with farmers’ protests.
  • The government has to exercise powers under Section 69A of the Information Technology Act to block user accounts critical of the farm bills.
  • The accounts which were sought to be censored are back online.
  • This is due to Twitter’s evident refusal to comply with the directions after a constitutional appraisal.
  • It has, as per press statements, cited the doctrine of proportionality in its defence.

Concerns with the directive

  • This direction presents a clear breach of fundamental rights but also reveals a complex relationship between the government and large platforms on the understanding of the Constitution of India.
  • The specific legal order issued is secret.
  • This brings into focus the condition of secrecy that is threshold objection to multiple strands of our fundamental rights.
  • It conflicts against the rights of the users who are denied reasons for the censorship.
  • Secrecy also undermines the public’s right to receive information, which is a core component of the fundamental freedom to speech and expression.
  • This is an anti-democratic practice that results in an unchecked growth of irrational censorship but also leads to speculation that fractures trust.
  • The other glaring deficiency is the complete absence of any prior show-cause notice to the actual users of these accounts by the government.
  • This is contrary to the principles of natural justice.
  • This again goes back to the vagueness and the design faults in the process of how directions under Section 69A are issued.

Constitutionality of Section 69A of IT Act

  • The secrecy clause represents a failure on the part of the Union executive, which framed the process for blocking websites in 2009.
  • he Supreme Court also failed to substantively examine the clause.
  • This is despite the opportunity offered by its celebrated judgment Shreya Singhal v. Union of India, when it struck down Section 66A of the IT Act as unconstitutional.
  • At the same time, the court stated in Shreya Singhal, that an aggrieved party could approach a court for remedy if their website or user account was blocked under Section 69A.
  • More recently, the court, when adjudicating the constitutional permissibility of the telecommunications shutdown in Jammu and Kashmir by its judgment in Anuradha Bhasin v. Union of India directed pro-active publication of all orders for internet shutdowns.
  • After this, a decent argument may be made that directions for blocking now need to be made public. 
  • However, several state governments are actively refusing compliance on the publication of orders on internet shutdowns.

Consider the question “Use of Section 69 of the IT Act to suspend the account of the users on a social media platform has raised concern. Examine these concerns.”

Conclusion

The episode leaves a sense of confusion and wonder about why our own government formed under the Constitution may be failing to fulfil its obligations when strangers who trade in our data for profit are seemingly more eager.

Freedom of Speech – Defamation, Sedition, etc.

OTT players adopt ‘toolkit’ for self-regulation

Note4Students

From UPSC perspective, the following things are important :

Prelims level : OTT

Mains level : Need for OTT media regulation

Online streaming providers have announced the adoption of an ‘implementation toolkit’, under the aegis of the Internet and Mobile Association of India (IAMAI).

What is the news?

  • Various OTT platforms say that this is in furtherance to the Universal Self-Regulation Code the body had introduced in September.
  • The government had rejected this USRC code.

Q.What is Over the Top (OTT) media services? Critically analyse the benefits and challenges offered by the OTT media services in India.

What are OTT Media?

  • An over-the-top (OTT) media service is a streaming media service offered directly to viewers via the Internet.
  • OTT bypasses cable, broadcast, and satellite television platforms, the companies that traditionally act as a controller or distributor of such content.
  • The term is most synonymous with subscription-based video-on-demand (SVoD) services that offer access to film and television content.
  • They are typically accessed via websites on personal computers, as well as via apps on mobile devices (such as smartphones and tablets), digital media players, or televisions with integrated Smart TV platforms.

Regulating OTT

  • Currently, there is no law or autonomous body governing digital content. The recent move will give the government control over OTT platforms, which were unregulated till now.
  • From time to time, the government had indicated the necessity to monitor these platforms.
  • In October 2019, the government had indicated that it will issue the “negative” list of don’ts for the video streaming services like Netflix and Hotstar.
  • It also wanted the platforms to come up with a self-regulatory body on the lines of the News Broadcasting Standards Authority.

What is the toolkit about?

  • The effort of the signatories, through this toolkit, is to also address feedback received from the ministry of information and broadcasting inter-alia, on the issues of conflict of interest and prohibited content.

The all-inclusive implementation toolkit will assist signatories in a seamless transition to self-regulation and guide them on various dimensions like:

  • Relevant laws of the land which will be adhered to by the signatories
  • Fair and transparent functioning of the grievance redressal mechanism, with escalation to an advisory panel with independent members
  • Training programs for creative and legal teams of OCCPs to enhance the knowledge and nuances of laws that govern content
  • Awareness programs for consumers to help increase understanding and use of age rating, content descriptor & parental controls
  • Implementation of a detailed audit and compliance mechanism

Why such code?

  • The code comes into force at a time when the government has put OTT platforms on the anvil of content regulation after a spate of complaints on the ‘sensitive’ and ‘objectionable’ nature of certain shows.
  • Earlier this week, I&B minister has assured the Parliament that guidelines for the regulation of OTTs have been practically hammered out and will be implemented soon.

Freedom of Speech – Defamation, Sedition, etc.

Petition in SC seeks Guidelines for Electronic Media

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Article 19(2)

Mains level : Free speech related issues

The Supreme Court has decided to examine a petition seeking the framing of guidelines outlining the broad regulatory paradigm within which the right to free speech of broadcasters and electronic media can be judicially regulated.

What is the petition about?

  • The petition wants the court to consider substantial questions of law, including whether the electronic media enjoys greater freedom than ordinary citizens and whether they could only be subject to self-regulation.
  • It has questioned whether free speech entails misinformation, fake news, hate speech, propaganda, paid news, communal and derogatory reportage, incitement, etc.
  • It has asked whether regulation will amount to the curtailment of the Press if done within the parameters specified under “reasonable restrictions” of Article 19(2) of the Constitution.
  • The plea said the right to life and dignity envisaged the right of citizens to “free, fair and proportionate media reporting”.

What is Article 19(2)?

  • This article authorizes the government to impose, by law, reasonable restrictions upon the freedom of speech and expression “in the interests of… public order.”
  • To understand the Supreme Court’s public order jurisprudence, it is important to break down the sub-clause into its component parts and focus upon their separate meanings.
  • Specifically, three terms are important: “reasonable restrictions”, “in the interests of”, and “public order”.
  • Clause (2) enables the legislature to impose certain restrictions on free speech under the following heads:
  1. Security of the State
  2. Friendly relations with foreign states
  3. Public order
  4. Decency and morality
  5. Contempt of court
  6. Defamation
  7. Incitement to an offense and
  8. Sovereignty and integrity of India
  • Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.

The task before the court

  • The principal issue before the court is to bring about a balance between the right to freedom of speech and the expression of the media and various other rights.
  • These include the competing right to information of the citizenry, the right to reputation and dignity as well as the interest of preserving peace and harmony in the nation.

Freedom of Speech – Defamation, Sedition, etc.

Back in news: Right to Protest

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 19

Mains level : Right to Protest and limtations over it

The Supreme Court has that said farmers have a constitutional right to continue with their “absolutely perfect” protest as long as their dissent against the three controversial agricultural laws did not slip into violence.

Q.It is the abundant duty of the State to aid and limit the exercise of Right to Protest peacefully. Examine.

Right to Protest

  • The right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.
  • The Constitution of India provides the right of freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution.
  • The Right to protest peacefully is enshrined in Article 19(1) (a) guarantees the freedom of speech and expression; Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
  • Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms.

Reasonable restrictions do exist in practice

  • Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter. They have to co-exist in mutual respect.
  • The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.
  • Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
  • The present case was not even one of the protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters.

Freedom of Speech – Defamation, Sedition, etc.

Issues with the regulation of digital media by government

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Freedom of speech and expression

Mains level : Paper 2- Regulation of digital media and issues with it

The article deals with the recent decision of the government to regulate digital media through the Ministry of Information and Broadcasting and issues with it.

Regulating the press

  • Recently, government put the online news and current affairs portals along with “films and audio-visual programmes made available by online content providers” under the Ministry of Information and Broadcasting.
  • Through the move, government is clubbing the only sector of the media which has pre-censorship, namely films  with the news media which has so far, at least officially, not been subject to pre-censorship.
  • The move hijacks matters before the Supreme Court of India relating to freedom of the press and freedom of expression to arm the executive with control over the free press, thereby essentially making it unfree.
  • It also hijacks another public interest litigation in the Supreme Court relating to content on “Over The Top” (OTT) platforms not being subject to regulation or official oversight to bring that sector too under the Ministry of Information and Broadcasting.
  • The move creates an artificial distinction between the new-age digital media which is the media of the future, the media of the millennial generation — and the older print and TV news media.

Reasons given by the government and issues with it

  • The explanation given is that the print media have the oversight of the Press Council of India and the TV media of the News Broadcasters Association (NBA).
  • Therefore the digital media needed a regulatory framework — no less than that of the Ministry of Information and Broadcasting.
  • However, there is no comparison between the Press Council of India and the NBA as professional bodies on the one hand and the Ministry of Information and Broadcasting on the other.
  • The fate of the digital media under the control of the Ministry of Information and Broadcasting leaves little scope for hope.

Consider the question “Regulation of digital media while solving some chronic issues gives rise to concerns over the freedom of press and expression. In light of this, examine the need for regulation of digital media by government and issues in it.”

Conclusion

The government regulations would be counterproductive for both the media practitioner and the media entrepreneur and for the startups that have been the new vibrant face of contemporary journalism.

Freedom of Speech – Defamation, Sedition, etc.

Contempt of Court and A-G’s consent

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Contempt of Court and its types, AGI

Mains level : Free speech vs. Contempt of court

Attorney-General gave his consent for the initiation of criminal contempt proceedings against the stand-up comedian for his tweets following a Supreme Court’s decision to grant interim bail to a news anchor.

Note important power, functions and limitations of AGI. A bluff can be created with the dicey statements in the prelims.

Also read:

[Burning Issue] Free Speech Vs. Contempt of Court

What is Contempt of Court?

  • According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
  • Civil contempt means wilful disobedience of any judgment, decree, direction, order, writ or another process of a court, or wilful breach of an undertaking given to a court.
  • Criminal contempt, on the other hand, is attracted by the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which:

(i) Scandalizes or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(ii) Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner

  • In 2006, the government brought in an amendment, which now provides “truth” as defence provided it is bona fide and in the public interest.

Why is the A-G’s consent needed to initiate contempt proceedings?

  • In cognizance of criminal contempt, The Contempt of Courts Act, 1971 has a provision under Subsection 1 of Section 15.
  • It reads that- in the case of criminal contempt, (other than contempt in the face of the Supreme Court or a High Court), the related court may take action on its own motion or on a motion made by (a) the Advocate-General, or (b) any other person, with the consent in writing of the Advocate-General.

Back2Basics: Attorney General of India (AGI)

  • The AGI is the Indian government’s chief legal advisor and is a primary lawyer in the Supreme Court of India.
  • They can be said to be the advocate from the government’s side.
  • They are appointed by the President of India on the advice of Union Cabinet under Article 76(1) of the Constitution and holds office during the pleasure of the President.
  • They must be a person qualified to be appointed as a Judge of the Supreme Court ( i.e. a judge of some high court for five years or an advocate of some high court for ten years or an eminent jurist, in the opinion of the President and must be a citizen of India.).

Functions and duties

  • The AGI is necessary for advising the Government of India on legal matters referred to them.
  • They also perform other legal duties assigned to them by the President.
  • The AGI has the right of audience in all Courts in India as well as the right to participate in the proceedings of the Parliament, though not to vote.
  • The AGI appears on behalf of Government of India in all cases (including suits, appeals and other proceedings) in the Supreme Court in which GoI is concerned.
  • They also represent the Government of India in any reference made by the President to the Supreme Court under Article 143 of the Constitution.
  • The AG is assisted by a Solicitor General and four Additional Solicitors General.

Freedom of Speech – Defamation, Sedition, etc.

Pondering on the free speech

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Right of free speech

Mains level : Paper 2- Free speech and violence

The article discusses the issues with blaming the expression of free speech for the violence inflicted by the people opposed to the ideas.

Context

  • The beheading of a teacher in France has brought to the fore the issue of free speech.
  • It is argued that there is a need to respect people’s religion and not be provocative in the aftermath of the gruesome killing.

Issues related to free speech

1) Free-speecher’s burden

  • The fact that a barbaric, crazy man can either get offended or inspired by either of the conflicting ideas cannot be a “free-speecher’s” burden.
  • Should any protest or campaign be mindful of a potential violent twist that may be given to their ideas?
  • Should a causal link between the expression of “offensive ideas” and sufferance of bodies allow violent zealots to hold the right to ransom?

2) Existence of ideas in person

  • Ideas have no real, independent existence outside of the bodies in which they inhere.
  • Had ideas lived autonomously, independent of the bodies and minds that carry them, ideas would not die.
  • But we don’t. And the reason is that some ideas die or weaken over time.
  • They become anomalous and discredited either because they are disputed scientifically or because they are contested vigorously and passionately till an anachronistic idea is defeated.

3) Ideas could be good or bad

  • In the conflicting terrain of ideas, lies the kernel of social change.
  • Ideas could be good or bad.
  • How else, except through a conflict of ideas, do women contest patriarchy and push back on received gendered ideas of womanhood?

Issues with arguing on free-speech outside context

  • First, as academic Ghassan Hage summed up in his Facebook post: Truth also needs to have its ethics.
  • You may be truthful, but unethical.
  • The beheading of French teacher requires us to dwell on not just any killing but the barbarism behind it.
  • To dwell instead on the genealogies and causes of violent behaviour is bad ethics, for it ends up being nothing more than an apologia for violence.
  • Second, it’s bad politics.
  • The right to free speech empowers and enables many marginalised lives.
  • It is a basic right that preconditions the realisation of other rights.
  • So basic that it enables the weak and the oppressed to rise against their oppressors.

Conclusion

In any case, free speech is restrained by the state through its many criteria of “reasonableness”. To further circumscribe it by burdening it with plausible violent appropriations, or with historical conditionalities, is to feed the logic of violence against freedom of expression.

Freedom of Speech – Defamation, Sedition, etc.

Right to Protest

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Right to Protest

Mains level : Right to Protest and restrictions over it

The Supreme Court has found the indefinite “occupation” of a public road by the Shaheen Bagh protestors unacceptable.

Right to Protest

  • The right to protest is the manifestation of the right to freedom of assembly, the right to freedom of association, and the right to freedom of speech.
  • The Constitution of India provides the right of freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the framers of the constitution.
  • The Right to protest peacefully is enshrined in Article 19(1) (a) guarantees the freedom of speech and expression; Article 19(1) (b) assures citizens the right to assemble peaceably and without arms.
  • Article 19(2) imposes reasonable restrictions on the right to assemble peaceably and without arms.

What did the Court say?

  • The court said the protest, considered an iconic dissent mounted by mothers, children and senior citizens of Shaheen Bagh against the Citizenship (Amendment) Act, became inconvenient to commuters.
  • The judgment upheld the right to peaceful protest against the law but made it unequivocally clear that public ways and public spaces cannot be occupied, and that too indefinitely.
  • Democracy and dissent go hand in hand, but then the demonstrations expressing dissent have to be in designated places alone.
  • The present case was not even one of the protests taking place in an undesignated area but was a blockage of a public way which caused grave inconvenience to commuters.

Reasonable restrictions do exist in practice

  • Fundamental rights do not live in isolation. The right of the protester has to be balanced with the right of the commuter. They have to co-exist in mutual respect.
  • The court held it was entirely the responsibility of the administration to prevent encroachments in public spaces.

Freedom of Speech – Defamation, Sedition, etc.

Tweets against CJI amounts to Criminal Contempt

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Contempt of Court and its types

Mains level : Contempt of Court and associated issues

A three-judge Bench of the Supreme Court has found a famous civil rights lawyer guilty of criminal contempt by ‘scandalizing the court’.

Try this question for mains:

Q.What is Contempt of Court? Discuss, how free speech can lead to the contempt of courts?

Contempt of Court

  • According to the Contempt of Courts Act, 1971, contempt of court can either be civil contempt or criminal contempt.
  • Civil contempt means willful disobedience to any judgment, decree, direction, order, writ or another process of a court or willful breach of an undertaking given to a court.
  • On the other hand, criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which
  1. Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
  2. Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
  3. Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

What did the court rule in this case?

  • The tweets had the effect of attempting to destabilize Indian democracy.
  • A defamatory publication concerning “the judge is a serious impediment to justice”.
  • The court could not ignore the disrespect and disaffection created by the “scurrilous” tweets.
  • If such an attack is not dealt with a requisite degree of firmness, it may affect the national honour and prestige in the comity of nations.

A suo motu action

  • The prior consent of the Attorney General (AG) of India is not required to suo motu initiate the inherent contempt powers of the Supreme Court.
  • The Contempt of Court Act of 1971 cannot limit this power of the court. The statute only provides the procedure in which such contempt is to be initiated.
  • The suo motu contempt powers of the top court are drawn from Article 129 of the Constitution, which says the Supreme Court, as a court of record, has the power to punish for contempt of itself.

What would be the penalty?

  • The Contempt of Court Act of 1971 punishes with imprisonment that may extend to six months or fine of ₹ 2,000 or both.
  • This is provided in case the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

Also read:

Explained: What is Contempt of Court?

Freedom of Speech – Defamation, Sedition, etc.

Highlights of the World Press Freedom Index, 2020

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Highlights of the report

Mains level : Freedom of Press

 

India has dropped two places on a global press freedom index to be ranked 142nd out of 180 countries in the annual World Press Freedom Report.

Press freedom  especially after the abrogation of Art. 370 in J&K was profoundly debated back then.  We can expect a mains question like-

“Reasonable restrictions to the freedoms enjoyed by media are necessary while addressing the concerns of national security.  Critically comment.”

World Press Freedom Index

  • The Press Freedom Index is an annual ranking of countries compiled and published by Reporters Without Borders.
  • It is based upon the organization’s own assessment of the countries’ press freedom records.
  • It intends to reflect the degree of freedom that journalists, news organisations, and netizens have in each country, and the efforts made by authorities to respect this freedom.
  • The report is partly based on a questionnaire which asks questions about pluralism media independence, environment and self-censorship, legislative framework, transparency, and infrastructure.

Highlights on India

  • The report said that with no murders of journalists in India in 2019, as against six in 2018.
  • However, there have been constant press freedom violations, including police violence against journalists, ambushes by political activists, and reprisals instigated by criminal groups or corrupt local officials.

Global scenario

  • Norway is ranked first in the Index for the fourth year running.
  • India ranked better than its neighbours Pakistan (145) and Bangladesh (151), but worse than Sri Lanka (127) and Nepal (112).
  • China at 177th position is just three places above North Korea, which is at 180th.

Various threats to press freedom

  • Across the world, press freedom is under pressure from aggressive authoritarian regimes.
  • The media is also facing a technological crisis, due to a lack of democratic guarantees and a democratic crisis following polarization and repressive policies, the report reads.
  • In addition comes a crisis of trust following growing suspicion and even hatred of the media, and an economic crisis and impoverishing of quality journalism.
  • Among other issues, the report has listed coordinated social media hate campaigns against journalists reporting on issues that “annoy right-wing followers”, criminal prosecutions to gag journalists critical of authorities and police violence against journalists.

Freedom of Speech – Defamation, Sedition, etc.

Freedom in the World 2020

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Freedom in the World Report

Mains level : Read the attached story

 

India has become one of the world’s least free democracies, according to a global survey.

Freedom in the World Report

  • It is a yearly survey and report by the U.S. based non-governmental organization Freedom House.
  • It measures the degree of civil liberties and political rights in every nation and significant related and disputed territories around the world.
  • The report derives its methodology from the Universal Declaration of Human Rights, adopted by the UN General Assembly in 1948.
  • It covers 195 countries, awarding scores based on political rights indicators such as the electoral process, political pluralism and participation and government functioning, as well as civil liberties indicators related to freedom of expression and belief associational and organisational rights, the rule of law and personal autonomy and individual rights.

Highlights of the report

 

 

Deteriorating freedom in India

  • The report ranks India at the 83rd position, along with Timor-Leste and Senegal.
  • This is near the bottom of the pile among the countries categorised as “Free”.
  • India’s score fell by four points to 71, the worst decline among the world’s 25 largest democracies this year.
  • India scored 34 out of 40 points in the political rights category, but only 37 out of 60 in the civil liberties category, for a total score of 71, a drop from last year’s score of 75.
  • The report treats “Indian Kashmir” as a separate territory, which saw its total score drop precipitously from 49 to 28 this year, moving it from a status of “Partly Free” to “Not Free”.

Reason for the downfall

  • The annulment of autonomy and the subsequent shutdown of Kashmir, the NRC and the CAA, as well as the crackdown on mass protests, have been listed as the main signs of declining freedom in the report.
  • These three actions have shaken the rule of law in India and threatened the secular and inclusive nature of its political system said the report.
  • The report slammed the internet blackout in Kashmir terming it the longest shutdown ever imposed by democracy.
  • It said freedom of expression was under threat in India, with journalists, academics and others facing harassment and intimidation when addressing politically sensitive topics.
  • It warned that the Indian government’s alarming departures from democratic norms under present govt. could blur the values-based distinction between Beijing and New Delhi.

Freedom of Speech – Defamation, Sedition, etc.

SC underlines restrictions on use of Sec 144

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Sec. 144 of CRPC

Mains level : Section 144 : Circumstances of its use and abuse and SC's guidelines

In its order on Jammu and Kashmir the Supreme Court made the following points with regard to the use of Section 144 of the Code of Criminal Procedure (CrPC), 1973.

Key takeaways of the order

  • Sec 144 cannot be used to suppress the legitimate expression of opinion or grievance, or the exercise of democratic rights
  • When Sec 144 is imposed for reasons of apprehended danger, that danger must be an “emergency”.
  • The imposition of Sec 144 must strike a balance between the rights of the individual and the concerns of the state.
  • Powers under Sec 144 should be exercised in a reasonable and bona fide manner, and the order must state material facts in order to enable judicial review.

What is Section 144?

  • Section 144 CrPC, a law retained from the colonial era, empowers a district magistrate, a sub-divisional magistrate or any other executive magistrate specially empowered by the state government in this behalf to issue orders to prevent and address urgent cases of apprehended danger or nuisance.
  • The magistrate has to pass a written order which may be directed against a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
  • In emergency cases, the magistrate can pass these orders without prior notice to the individual against whom the order is directed.

What powers does the administration have under the provision?

  • The magistrate can direct any person to abstain from a certain act or to take a certain order with respect to certain property in his possession or under his management.
  • This usually includes restrictions on movement, carrying arms and from assembling unlawfully. It is generally believed that assembly of three or more people is prohibited under Section 144.
  • However, it can be used to restrict even a single individual. Such an order is passed when the magistrate considers that it is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.
  • However, no order passed under Section 144 can remain in force for more than two months from the date of the order, unless the state government considers it necessary.
  • Even then, the total period cannot extend to more than six months.

Why is it criticised so often?

  • The criticism is that it is too broad and the words of the section are wide enough to give absolute power to a magistrate that may be exercised unjustifiably.
  • The immediate remedy against such an order is a revision application to the magistrate himself.
  • An aggrieved individual can approach the High Court by filing a writ petition if his fundamental rights are at stake.
  • However, fears exist that before the High Court intervenes, the rights could already have been infringed.

Also read: 

Explained: How Section 144 CrPC works

Freedom of Speech – Defamation, Sedition, etc.

[op-ed snap] Guarantee Internet rights

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Right to internet

Context

The Software Freedom Law Centre data says there have been more than 100 Internet shutdowns in different parts of India in 2019 alone. 

Instances

  • In Kashmir, the government imposed a complete Internet shutdown on August 4, which still continues. 
  • The enactment of the Citizenship (Amendment) Act led to protests all over the country and state governments responded by suspending the Internet. 
  • Assam witnessed a suspension of mobile and broadband Internet services in many places, including in Guwahati for 10 days. 
  • There were Internet bans in Mangaluru, Delhi and Uttar Pradesh.
  • These bans are being imposed under different provisions of the law — Section 144 of the Criminal Procedure Code (CrPC), Section 5(2) of the Indian Telegraph Act, 1885 and without any legal provisions at all.

Lifeline for people

  • We have to recognise the right to Internet access as a fundamental right. 
  • While the Internet is certainly the main source of information and communication and access to social media, it is so much more than that.
  • People working in the technology-based gig economy — like the thousands of delivery workers for Swiggy, Dunzo and Amazon and the cab drivers of Uber and Ola — depend on the Internet for their livelihoods.
  • It is a mode of access to education for students who do courses and take exams online. Access to the Internet is important to facilitate the promotion and enjoyment of the right to education.
  • The Internet provides access to transport for millions of urban and rural people.
  • It is also a mode to access to health care for those who avail of health services online. 
  • It is a means for business and occupation for thousands of small and individual-owned enterprises that sell their products and services online.

Right to Internet

  • The access to the Internet is a right very similar to what the Supreme Court held with respect to the right to privacy in Justice K.S. Puttaswamy judgment.
  • Internationally, the right to access to the Internet can be rooted in Article 19 of the Universal Declaration of Human Rights which states that “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
  • The Human Rights Council of the United Nations Resolution dated July 2, 2018, on the promotion, protection and enjoyment of human rights on the Internet, made important declarations.
  • It noted with concern the various forms of undue restriction on freedom of opinion and expression online, including where countries have manipulated or suppressed online expression in violation of international law.
  • It said that the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice.

The Kerala case

  • The High Court of Kerala made a start to the domestic recognition of the right to Internet access.
  • The judgment in Faheema Shirin R.K. v. State of Kerala & Others holds that “…a rule or instruction which impairs the right of the students cannot be permitted to stand in the eye of the law.” 
  • It notes that mobile and broadband Internet shutdowns impact women, girls, and marginalised communities more disproportionately than others.

Conclusion

It is time that we recognise that the right to access to the Internet is indeed a fundamental right within our constitutional guarantees.

Freedom of Speech – Defamation, Sedition, etc.

Destruction of public property

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Freedom of Speech

Mains level : Growing vandalism in the wake of right to protest

Despite a law against the destruction of property, incidents of rioting, vandalism, and arson have been common during protests across the country.

Prevention of Damage to Public Property Act, 1984

Defining Public Property

Public property under this Act includes “any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy; any oil installation; any sewage works; any mine or factory; any means of public transportation or of telecommunications, or any building, installation or other property used in connection therewith”.

Penalties against damage

The Act punishes anyone “who commits mischief by doing any act in respect of any public property” with a jail term of up to five years and a fine or both.  Provisions of this law can be coupled with those under the Indian Penal Code.

Plugging the loopholes

  • The Supreme Court has on several earlier occasions found the law inadequate, and has attempted to fill the gaps through guidelines.
  • In 2007, the court took suo motu cognizance of “various instances where there was large scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like”.
  • It set up two Committees headed by former apex court judge Justice K T Thomas and senior advocate Fali Nariman to suggest changes to the law.
  • In 2009, in the case of In Re: Destruction of Public & Private Properties v State of AP and Ors, the Supreme Court issued guidelines based on the recommendations of the two expert Committees.

I. Thomas Committee recommendations

  • The Thomas Committee recommended reversing the burden of proof against protesters.
  • Accepting the suggestion, the court said that the prosecution should be required to prove that public property had been damaged in direct action called by an organisation, and that the accused also participated in such direct action.
  • From that stage the burden can be shifted to the accused to prove his innocence, the court said.
  • It added that the law must be amended to give the court the power to draw a presumption that the accused is guilty of destroying public property, and it would then be open to the accused to rebut such presumption.
  • Such a reversal of the burden of proof is applicable in cases of sexual violence, among others. Generally, the law presumes that the accused is innocent until the prosecution proves its case.

II. Nariman Committee’s recommendations

  • These recommendations dealt with extracting damages for destruction.
  • Accepting the recommendations, the court said the rioters would be made strictly liable for the damage, and compensation would be collected to “make good” the damage.
  • “Where persons, whether jointly or otherwise, are part of a protest which turns violent, results in damage to private or public property, they will be deemed to be strictly liable for the damage so caused.
  • The damage may be assessed by the ordinary courts or by any special procedure created to enforce the right.

Limited impact yet

  • Like the law, the guidelines too, have had a limited impact.
  • This is because the identification of protesters remains difficult, especially in cases where there is no leader who gave the call to protest.

Freedom of Speech – Defamation, Sedition, etc.

Right to Protest

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Right to Protest

Mains level : Freedom of speech and the reasonable restrictions

The police action in Delhi’s Jamia Millia Islamia, where the police entered the university campus and employed force against students is being widely criticised across the country.  What do the Constitution and laws of India say on the right of police to intervene in protests and agitations?

In the Constitution

  • The right to protest peacefully is guaranteed by the Constitution of India. Articles 19(1)(a) and 19(1)(b) give to all citizens the right to freedom of speech and expression, and to assemble peaceably and without arms.
  • However, under Articles 19(2) and 19(3), the right to freedom of speech is subject to reasonable restrictions”.
  • These include the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

In the CrPC and IPC

The legal provisions and avenue available to police for handling agitations, protests, and unlawful assemblies are covered by the Code of Criminal Procedure (CrPC), 1973, the Indian Penal Code (IPC), 1860, and The Police Act, 1861.

I. CrPC

  • The CrPC’s Sections 129-132 deal with “Dispersal of assembly by use of civil force”, use of the armed forces in situations of civil unrest, and protection against prosecution for acts done under these sections.
  • Under CrPC Section 129, “any Executive Magistrate or officer in charge of a police station… may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly”.
  • Also, “If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, (the) Executive Magistrate or police officer… may proceed to disperse such assembly by force.
  • This may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who form part of it.
  • Section 130 of the CrPC, which deals with “Use of armed forces to disperse assembly”, requires personnel to “use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons”.

II. IPC

  • The IPC’s Sections 141-158 deal with unlawful assembly, and the responsibilities, liabilities, and punishments related to this offence.
  • Under IPC Section 141, an “unlawful assembly” is an assembly of five or more persons that intends to “overawe by criminal force, or show of criminal force”, governments or public servants, or to “resist the execution of any law, or of any legal process”, or “to commit any mischief or criminal trespass, or other offence”, etc.
  • IPC Section 146 says, “Whenever force or violence is used by an unlawful assembly, or by any member thereof, in the prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.”

Pre-requisites for use of Force

  • In ‘Karam Singh vs Hardayal Singh And Ors’ the High Court of Punjab and Haryana underlined in its judgment of August 8, 1979, that “before any force can be used, three prerequisites are to be satisfied”.
  • Firstly, there should be an unlawful assembly with the object of committing violence or an assembly of five or more persons likely to cause a disturbance of the public peace.
  • Secondly, such assembly is ordered to be dispersed.
  • Thirdly, in spite of such orders to disperse, such assembly does not disperse.

In the United Nations

  • The ‘Basic Principles on the Use of Force and Firearms by Law Enforcement Officials’ adopted in 1990, resolved that “law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms.
  • They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.
  • The Principles cautioned that “whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall”, among other things, “exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved”, and “minimize damage and injury, and respect and preserve human life”.
  • Also, “Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.”

Freedom of Speech – Defamation, Sedition, etc.

Bill on protecting mediapersons

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not Much

Mains level : Freedom of Press


  • President has given assent to a legislation passed by the Maharashtra Assembly in 2017 that makes violent attacks on mediapersons a non-bailable offence.
  • Maharashtra is the first State to pass such legislation.

Maharashtra Media Persons and Media Institutions Act, 2017

  • The Maharashtra Media Persons and Media Institutions (Prevention of Violence and Damage or Loss to Property) Act, 2017, also has a provision of imprisonment and a fine of ₹50,000.
  • It was passed by the Assembly in 2017, but received the President’s assent in October after the Union Home Ministry scrutinized the legislation and consulted all concerned Ministries.
  • The MHA had returned the Bill to the Maharashtra government last year to seek clarification.
  • The Bill has a provision that any offence against a mediapersons will be investigated by a police officer above the rank of a Deputy Superintendent of Police.

Why need such law?

  • There are rampant instances of violence and attacks against mediapersons and damage or loss to the property of media institutions.
  • There is strong demand to prevent such violence against mediapersons or damage or loss to the property belonging to mediapersons or media institutions and check the recurrence of such incidents in the State.
  • In 2017, the MHA also issued an advisory to all States to ensure the “safety and security of journalists”.
  • The advisory was issued days after Bengaluru-based journalist Gauri Lankesh was shot dead near her home.

Freedom of Speech – Defamation, Sedition, etc.

Access to Internet is a basic right, says Kerala High Court

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Art. 19

Mains level : Read the attached story

  • The Kerala High Court held that the right to have access to the Internet is part of the fundamental right to education as well as the right to privacy under Article 21 of the Constitution.

Right to access Internet

  • The court ordered to re-admit a student who had been expelled from the college hostel for using her mobile phone beyond the restricted hours.
  • The court observed that when the Human Rights Council of the UN has found that the right of access to Internet is a fundamental freedom and a tool to ensure right to education.
  • A rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law.
  • The bench contended that the use of mobile phones amounted to a violation of fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution.

Restrictions on Art. 19(1)(a)

  • The court cited the observations of the Supreme Court in the S.Rengarajan and others v. P. Jagjivan Ram (1989) case.
  • It said that the fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) .
  • And the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency.
  • 19(2) provides for reasonable restrictions on Art. 19(1)(a) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence

Freedom of Speech – Defamation, Sedition, etc.

[op-ed snap] Why sedition law has lost meaning

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : Sedition Law - need for a relook in the background of evolving jurisprudence

CONTEXT

Justice Deepak Gupta, a sitting judge of the Supreme Court, noted how the provision in the IPC provides for punishment for seditious speech is misused often than not. He wondered whether the time is ripe to have a relook at the law.

Freedom of speech

  • Article 19(1)(a) of the Constitution guarantees freedom of speech and expression.
  • It is subject only to Article 19(2) which saves any law that imposes “reasonable restrictions” on the limited grounds of interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation etc.

Sedition Law

  • Section 124A of the IPC defines sedition. It makes every speech that “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government” a criminal offence.
  • Such an offence is punishable with a maximum sentence of life imprisonment. 
  • It is classified as “cognisable” — the investigation process can be triggered just by filing an FIR. A judicial authority need not have to take cognisance.
  • It is also “non-bailable” — the accused cannot get bail as a matter of right, but is subject to the discretion of the sessions judge.
  • An explanation to the provision clarifies that mere “disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
  • A five-judge constitution bench decision of SC in Kedarnath v. State of Bihar (1962) read down Section 124A to mean that only those expressions that either intend to or have the tendency of causing violence are punishable under Section 124A. 
  • The Court reiterated the Kedarnath law in 2016 in Common Cause v. Union of India and directed all authorities to follow the Kedarnath dictum. 

Scope of Fundamental Rights expanded

  • The jurisprudence of fundamental rights was expanded through several decisions in R C Cooper v. Union of India (1969), Indira Gandhi v. Raj Narain (1975), Maneka Gandhi v. Union of India (1978), I.R. Coelho v. State of Tamil Nadu (2007) and, in Puttaswamy v. Union of India (2017). 
  • Each of these decisions establishes that fundamental rights in the Constitution are not to be read as isolated silos but are to be read as if the content of each fundamental right animates the other. 
  • They tell us that the entire chapter on fundamental rights has also to be read “synoptically”. 

Kedarnath judgement – limitations and expanding jurisprudence

  • In Kedarnath case, the court merely tested the intent of the provision under the exceptions to the freedom of speech under Article 19(2) of the Constitution. It did not take into consideration the effect of the right to equality (Article 14) or due process (Article 21).
  • Reading of Articles 14, 19 and 21 has evolved jurisprudence of testing legislation curtailing fundamental rights on substantive and procedural reasonableness, necessity and proportionality. 
  • The requirement of “necessity” comes from India ratifying the International Covenant on Civil and Political Rights in 1976. 
  • Article 19 of the ICCPR requires speech-limiting state action to be backed by law and to be necessary on the grounds of respect for the rights and reputations of others, national security etc. 
  • Court also did not examine the provision for “chilling effect” on speech it causes. State action causing psychological barriers in the free exercise of the right to free speech.
  • Only in 2018 (Navtej Johar v. Union of India), the court found that pre-constitutional legislation have no legal presumption of constitutionality. 

Way ahead

  • The new thought focuses on understanding “necessity” of state action limiting fundamental freedoms.
  • The burden is on the state to establish that such a limiting measure is “necessary in a democratic society” 
  • “Proportionality” should inform the understanding of “reasonableness” of restrictions in Article 19.

 


Back2Basics

Freedom of Speech – Defamation, Sedition, etc.

Freedom of Speech – Defamation, Sedition, etc.

[op-ed snap] Sacrificing liberty for national security

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing much

Mains level : National Security vs Individual rights; JUAPA Bill

CONTEXT

The amendments to the Unlawful Activities (Prevention) Act (UAPA), 1967 empowers the Central government to name any individual a terrorist if it believes him or her to be so.

Background of UAPA

  1. UAPA was passed by the Indira Gandhi government to deal with the secessionist Dravidian movement. 
  2. During the 1962 war, the Communist Party blamed Jawaharlal Nehru and did not wholeheartedly support the Indian troops. In 1966, Hindu Sadhus protesting against cow slaughter marched in front of Parliament.
  3. Against this backdrop, an unlawful activity was defined as any action taken
    1. to bring about the cession of a part of the territory of India
    2. To incite any individual or group of individuals to bring about such cession 
    3. To disrupt the sovereignty and territorial integrity of India
    4. to cause disaffection against India

Arguments against the bill

  1. As per Section 35(2), the Central Government shall exercise its power in respect of an organisation or an individual only if it believes that such an organisation or individual is involved in terrorism.
    1. There is no FIR. There is no charge sheet. There are no charges framed.
    2. There is no trial in a court. There is no conviction.
    3. There is no basis on which you will name an individual.
  2. There is a close parallel between sedition and unlawful activity. The act almost equates the two. 
  3. There is no need to label an individual as a terrorist when the organization he is affiliated to is already banned.
  4. Ban on organizations vs individuals
    1. UAPA has now been extended to cases of terrorism too. After TADA and POTA were repealed due to repeated misuse, UAPA was amended in 2004 to bring into its fold cases of terrorism. Organizations such as the Liberation Tigers of Tamil Eelam, the Hizbul Mujahideen, and the Khalistan Commando Force have been scheduled as banned organizations. 
    2. Most of these bans are not challenged, and judicial tribunals have upheld the imposition of such bans from time to time.
    3. Banning an organization renders its members vulnerable to prosecution. Consequences include loss of property linked to terrorism. The organization itself may challenge the notification in a judicial tribunal.
    4. But, all these defenses will vanish if an individual is notified as a terrorist. 
    5. No link to any organization needs to be proved. People consorting in any manner with a notified individual can also be roped in under the Act. 
  5. Almost any utterance on social media these days can be construed as one “which causes or is intended to cause disaffection against India”.

Defending the amendments

  1. The act aims to fight terror. 
  2. It strengthens the government’s powers to deal with disaffection and anarchy.
  3. The predominant duty of the government is to keep the country united against existential threats. 

Conclusion

Benjamin Franklin said: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Indians deserve better respect for their liberties than this ill-thought-out law.

Freedom of Speech – Defamation, Sedition, etc.

[op-ed snap] Sword against pen

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Freedom of press

CONTEXT

Journalists are facing heightened threats around the globe, according to the 2019 World Press Freedom Index compiled by Reporters Without Borders (RSF), covering 180 countries and territories.

Threats to journalist

  • It notes that the number of countries regarded as safe for journalists is on the decline; this should be a wake-up call. Hatred of journalists has degenerated into violence in many places, and India is no exception.
  • In 2018, at least six Indian journalists were killed in the line of their work, the report said. India’s rank fell by two places to 140 from 138 — in 2016 it was 133 and in 2017 it was 136.
  • In 2014 India’s ranking was 140, but this year’s setback is qualitatively different.

Reasons for the decline in ranking

  • The report notes that organised campaigns by supporters of Hindutva “to purge all manifestations of ‘anti-national’ thought from the national debate” is putting journalists in danger.
  • Women journalists are particularly at the receiving end, and covering sensitive but important topics of public interest such as separatism in Jammu and Kashmir and Maoist insurgency has become more difficult.
  • Authorities use anachronistic sedition laws against journalists, who also face the wrath of militants and criminal gangs.

Hyper-nationalist politics

  • Hostility towards the media is a defining feature of hyper-nationalist politics in many countries.
  • In India, the Centre and several State governments have not merely shown extreme intolerance towards objective and critical reporting but also taken unprecedented measures to restrict journalism.

Recent Events

  • The Finance Minister’s recent order barring credentialed reporters from the Ministry’s premises is a case in point but this is not an isolated measure.
  • There is a systematic attempt to limit the scope of journalism in India through physical restrictions, denial of information and hostile rhetoric against journalists by senior government functionaries.
  • The government is unlikely to take the RSF report seriously.

Perception’s Importance

While expression of concern by foreign countries or global bodies regarding human rights, religious violence or media freedom is routinely dismissed as external interference in India’s sovereignty, the government knows all too well that in a globalised world these perceptions matter.

Conclusion

  • What else would explain the Prime Minister’s single-minded pursuit to improve India’s position in the World Bank’s annual Ease of Doing Business ranking?
  • If India is concerned about its reputation in terms of business and investment, it should be equally or even more concerned about its standing as a democratic, pluralist country with a free and dynamic press.
  • That is not so much for the inflow of investment or luring global corporations, which may care little about a destination-country’s democratic credentials — but for India’s well-being.

Freedom of Speech – Defamation, Sedition, etc.

Explained: How films are certified, why it causes dispute

Note4Students

From UPSC perspective, the following things are important :

Prelims level : CBFC and its composition

Mains level : Censoring and underlying issues

  • Earlier this month, the Bombay High Court pulled up the Central Board of Film Certification (CBFC) for refusing to give a ‘U’ certificate to a Children’s film. The CBFC had given it a U/A certificate.

CBFC organizational set-up

  • The CBFC is headed by the Chairperson.
  • The board comprises up to 25 members and 60 advisory panel members from across India, appointed by the I&B Ministry.
  • While the board members are usually film and TV professionals, members of the advisory panel are often from outside the industry.
  • The chairperson and board members serve for three years, and advisory panel members for two years.
  • The CEO is chiefly in charge of the administrative functioning but the regional officers are part of Examining Committees that certify films.
  • Once a filmmaker applies for certification, an Examining Committee is appointed by the Regional Officer.
  • In case of short films, it consists of a member of the advisory panel and an examining officer, one of whom has to be a woman.
  • Else, it has four members from the advisory panel and an examining officer of who two persons are to be women.

How do they certify films?

  • Certification— unrestricted public exhibition (U), parental guidance for children below age 12 (U/A), adult (A), or viewing by specialised groups (S) — is decided by the Regional Officer based on reports by Examining Committee members.
  • In case of a divided opinion, the case rests with the chairperson.
  • Certification is often decided on individual inclinations in the Examining Committee, whose members come from various walks of life.

What if the applicant is not satisfied?

  • In most such cases, the CBFC shares a list of “suggested changes”.
  • If the applicant is unhappy with the certification or the list of changes, he or she can apply to the Revising Committee, which is made of the Chairperson and up to nine committee members from both the board and the advisory panel.
  • The committee cannot have a member from the advisory panel who may have already viewed the film.
  • A similar process is followed at this stage, with the final word resting with the Chairperson.
  • The last point of appeal is the Appellate Tribunal, an independent body, members of which are appointed by the ministry for three-year terms.
  • Any further dispute can be taken to a court.

Criticism of CBFC

  • CBFC is a certification board and not the censorship board anymore with wider intervention by judiciary.
  • Their job is to certify films based on this and the guidelines are fairly wide.
  • It is in consonance with Article 19 of the Constitution and Section 5(b) of the Cinematograph Act.

What is Section 5(b)?

  • It states that a film shall not be certified if any part of it is against the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or involves defamation or contempt of court or is likely to incite commission of any offence.

Freedom of Speech – Defamation, Sedition, etc.

Explained: How PIB accreditation helps journalists

Note4Students

From UPSC perspective, the following things are important :

Prelims level : PIB accredition

Mains level : Freedom of Press

Context

  • The Union Ministry of Finance has justified recent restrictions on the entry of journalists, even those holding a Press Information Bureau (PIB) card, in the Finance Ministry.
  • This has been done for streamlining the interactions between the media and the government.
  • Many journalists holding a PIB cards are feeling aggrieved over the decision.

What is PIB Card?

  • A PIB accreditation is only given to journalists who live in Delhi or its periphery, and works with a media organisation that has been functioning continuously for at least a year and if 50 per cent of its content is news or commentary of general public interest.
  • The content should also include news and information emanating from the headquarters of the Government of India.
  • According to the Central News Media Accreditation Guidelines, 1999, PIB accreditation “shall not confer any official or special status on news media representatives, but shall only recognize their identity as a professional working journalist”.
  • The guidelines define accreditation as recognition of news media representatives by the Government of India for purpose of access to sources of information in the Government and also to news materials, written or pictorial, released by the PIB and/or other agencies of the govt.

A sort of security pass

  • The PIB card given to all accredited journalists mentions on its back that it is “valid for entry into buildings under MHA (Ministry of Home Affairs) security zone”.
  • Since a PIB card comes after security clearance from the Home Ministry, accredited journalists are allowed to enter the premises of most Union government ministries without prior appointment.
  • They are not required to register or record their presence at the reception, or with any other official in any ministry.
  • This firewalls the journalists from attempts at finding out when and on how many occasions they have visited the premises of an office, and which officers they have met.

Who is eligible for PIB accreditation?

  • To be eligible for PIB accreditation, a journalist needs to have a minimum of five years’ professional experience as a full-time working journalist or a cameraperson in a news organisation, or a minimum of 15 years as a freelancer.
  • Journalists working full-time for a news organisation seeking accreditation must be earning a minimum salary of Rs 4,500 per month.
  • A newspaper or periodical needs to have a minimum daily circulation of 10,000, or 75,000 if it is part of a chain, and news agencies must have a gross annual revenue of a minimum Rs 20 lakh for their journalists to be eligible for accreditation.
  • Similar rules apply for foreign news organisations and foreign journalists.
  • Applications for accreditation are vetted by a Central Press Accreditation Committee headed by the DG, PIB.
  • After a journalist applies for a PIB accreditation, there is a mandatory security check conducted by the Union Ministry of Home Affairs, which also includes on-site verification of the journalist’s residence by the police.

Benefits

  • As such, PIB accreditation has several advantages. First, in certain events involving senior public functionaries such as the President, the Prime Minister, and other ministers, only a PIB accredited journalist is allowed entry.
  • Second, journalists accredited with the PIB are eligible, along with members of their family, for subsidised health services under the Central Government Health Scheme, meant for employees of the Union government.
  • Third, and most importantly, a PIB accreditation helps a journalist carry out her professional responsibilities. It does so by helping a journalist protect her sources.

Freedom of Speech – Defamation, Sedition, etc.

[op-ed snap] No apology, please

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Court's order for apology for a political meme might affect freedom of speech.

CONTEXT

The Supreme Court vacation bench has granted bail to Priyanka Sharma of the Bharatiya Janata Yuva Morcha (BJYM) in West Bengal. This was scrupulously correct, because bail is a right except in special circumstances, where the accused is deemed to be likely to misuse her freedom to interfere with the course of justice. The Supreme Court has always expanded the contours of free speech. Its insistence on an apology on a political meme is distressing.

Background

  • Initially, the bail granted was conditional upon Sharma tendering an immediate apology for sharing a bizarre meme online, showing West Bengal chief minister Mamata Banerjee.
  • The final order was softened to restore Sharma’s liberty without a pre-condition, but it required her to apologise after being set free.

Problem with such conditions

This rider was deeply problematic on multiple counts.

1.Situation based Order –

  • First, the court appears to have asked for an apology because the post was made by a political worker during elections, though situational matters generally do not concern the process of justice.
  • What is deemed to be just today should be deemed so for all time.

2. Second, Sharma’s counsel has argued that she had only re-posted a pre-existing meme.

  • The judicial remand of Sharma for 14 days was a travesty of justice, especially by a government that, ironically, claims to be pushing for a more liberal space.
  • The judicial action, without doubt, was out of proportion with the act of forwarding a meme, and the demand for an apology by the highest court, as a condition following her release, heaps insult upon injury.
  • While the court is correct in observing a principle of natural justice, which requires a balance in the rights of individuals, Sharma’s alleged transgression cannot have been probed sufficiently in a single hearing.
  • To require her to apologise when her transgression has not been sufficiently established militates against natural justice.

Setting A Dangerous Precedent

  • Though the order states that “it shall not operate as a precedent”, if the need for an apology is eventually upheld, the effects would be catastrophic, for all satire is political in nature and intent.
  • Cartoonists would have to publicly repent every morning, shortly after newspapers land on the doorsteps of readers.
  • Stand-up comics could apologise in the evenings, after the show.
  • Theatre and cinema producers and directors dealing in political issues (and what is drama if it is not political?) would have to send pre-emptive apologies to the powers that be before their shows opened.
  • And satire would be declared dead on arrival.

Conclusion

The meme shared by Sharma was merely bizarre, even if it involved a political personality. If producers of real political satire could be prosecuted until they apologised, it would be the death of free speech.

 

Freedom of Speech – Defamation, Sedition, etc.

PCI issues guidelines for objective reporting on polls

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Press Council of India

Mains level : Need for regulation (not censoring) of Mass Media

  • The Press Council of India (PCI) on asked the media to give objective reports about the election and cautioned it against the phenomenon of paid news.

Guidelines by PCI

[I] A note for Media

  • The PCI said newspapers are not expected to indulge in unhealthy election campaigns, exaggerated reports about any candidate or party during the elections.
  • It will be the duty of the press to give objective reports about the election and the candidates.
  • While reporting on the actual campaign, a newspaper may not leave out any important point raised by a candidate and make an attack on his or her opponent.
  • It also cautioned the press to eschew reports which tend to promote feelings or enmity or hatred between people on the grounds of region, religion, race, caste, community or language.
  • The press should refrain from publishing false or critical statements in regard to the personal character and conduct of any candidate or in relation to the candidature or withdrawal of any candidate or candidature.

[II] Against unverified news

  • The PCI also cautioned against publishing unverified allegations against any candidate or party.
  • The council said whenever the newspapers publish pre-poll surveys, they should take care to preface them conspicuously.
  • They should indicate the institutions which have carried on such surveys, the individuals and organisations which have commissioned them, the size and nature of sample selected and the method of selection of the sample for the findings.

[III] Against paid news

  • The PCI asked the media to guard against paid news which it defined as “any news or analysis appearing in any media (print & electronic) for a price in cash or kind as consideration”.

[IV] Lighter note for Authorities

  • It also urged authorities that rules and orders regulating entry of the media persons to places of election should be notified and the cut-off date for applying for passes should be given due and advance publicity.
  • The authorities cannot prohibit the use of vehicles by the media persons for movement during elections although its use for the voters by candidates and their agents is prohibited.
  • This is because the journalist have to move from booth to booth and collect information from all the centres whether on the polling day or at the time of counting.

Back2Baiscs

Press Council of India

  • The Press Council of India is a statutory, quasi-judicial body which acts as a watchdog of the press.
  • It adjudicates the complaints against and by the press for violation of ethics and for violation of the freedom of the press respectively.
  • The PCI was first constituted on 4th July, 1966 as an autonomous, statutory, quasi-judicial body, with Shri Justice J R Mudholkar, then a Judge of the Supreme Court, as Chairman.
  • A fresh legislation providing for the establishment of the Council was enacted in 1978 through Press Council Act of 1978 and the institution came to be reviewed in the year 1979.

Composition:

  • The present Council is a body corporate having perpetual succession. It consists of a Chairman and 28 other members.
  • Its members include working journalists, management of newspapers and those who manage news channels.
  • It also includes 3 persons having special knowledge or practical experience in respect of education and science, law and literature and culture. One member each is nominated by the UGC, the Bar Council of India and the Sahitya Academy
  • The remaining five are to MPs : three from Lok Sabha, and two from Rajya Sabha.

Chairs:

  • The Act provides for selection of the Chairman by a Committee consisting of the Chairman of the Rajya Sabha, the Speaker of Lok Sabha and a person elected by the members of the Council from among themselves.
  • By Convention the Chairman is been a retire judge of Supreme Court
  • The term of the Chairman and the members of the Council is three years. A retiring member is eligible for renomination for not more than one term

Powers:

  • Power to Censure news paper / agency / editors / journalist if they offended against the standards of journalistic ethics or public taste or that an editor or a working journalist has committed any professional misconduct
  • Summoning and enforcing the attendance of persons and examining them on oath
  • Receiving evidence on affidavits etc.

Freedom of Speech – Defamation, Sedition, etc.

[op-ed snap]Rafale rebuff

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Imporance of Supreme court's Judgement in maintaining freedom of expression in Rafale case

CONTEXT

The Supreme Court’s decision to consider the relevance of the documents published in the media on the Rafale deal is a firm and necessary rebuff to the Central government’s attempts to prevent judicial examination of these papers and to de-legitimise all investigative journalism on the subject.

Impact of Verdict

  • The court’s unanimous verdict, rendered in two concurring orders by a three-judge Bench, means that review petitions filed against earlier orders declining an investigation into the purchase of Rafale jets will now be taken up on merits and that the petitioners are free to rely on these documents, regardless of their provenance.
  • Published Documents-  A dissenting note by members of the India Negotiating Team, and notes that disclose unease in the Defence Ministry over parallel negotiations at the PMO’s instance undermining the official parleys are among them.
  • It would have been a travesty had the government succeeded in blocking judicial scrutiny of these documents, as they disclose significant details about the decision-making process.
  • Use of OSA – The government’s desperate attempts to prevent the court from relying on these papers included a claim of privilege under the Evidence Act, a threat of invoking the Official Secrets Act (OSA) and an accusation that the published documents were “stolen” on.
  • Later, it toned down the allegation by saying the original documents had not been stolen, and what were published were unauthorised photocopies.
  • None of these claims impressed the court, which relied on the principle that how a piece of evidence is obtained is immaterial, as long as it is relevant to adjudicating an issue.

Importance for freedom of speech

  • The decision on the admissibility of the documents has significance beyond the Rafale issue: it revivifies the rights of a free press and underscores the principle that it is public interest, and not the content of a document alone, that will decide whether disclosure is needed or not in a given case.
  • Referring to the publication of the Rafale documents in The Hindu, Chief Justice Ranjan Gogoi observed that “the right of such publication would seem to be in consonance with the constitutional guarantee of freedom of speech”. Citing the U.S.
  • Supreme Court decision on the Pentagon Papers, he noted that neither the OSA nor any other law vests any power in the executive to stop publication of documents marked ‘secret’ or the placing of such documents before a court of law which may be called upon to adjudicate a legal issue.

Conclusion

  • It is premature to conclude, based on this development, that the court’s earlier decision to not order a criminal investigation into the purchase of 36 Rafale jets will be revisited.
  • However, it will certainly help provide clarity on several aspects of the murky deal. Had the government agreed to a parliamentary probe early on, it would not be suffering the sort of setback it has now faced in the Supreme Court.

Freedom of Speech – Defamation, Sedition, etc.

[op-ed snap]The right to criticise

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Courts should follow manipur high court's stand on sedition charges.

CONTEXT

In its judgment dated April 8, the Manipur High Court ordered the release of journalist Kishorechandra Wangkhem, who was charged with sedition under the National Security Act for criticising the Chief Minister.

History of sedition judgments

  • Though the petition was allowed only on the technical ground that certain material mentioned in the detention order was not supplied to the petitioner, it could have also succeeded on the ground that in a democracy people have a right to criticise the government.
  • Article 19(1)(a) of the Constitution was upheld by the Supreme Court in Romesh Thapar v. The State of Madras (1950).
  • In Kedar Nath Singh v. State of Bihar (1962), the Supreme Court held that mere criticism of the government is not sedition unless it is an incitement to violence or breach of public order.
  • The U.S. Supreme Court, in Brandenburg v. Ohio (1969), laid down the ‘imminent lawless action’ test, which says that free speech is protected by the First Amendment to the U.S. Constitution unless it incites imminent (not remote) lawless action.
  • This judgment was followed by the Indian Supreme Court in Arup Bhuyan v. State of Assam (2011) and in Sri Indra Das v. State of Assam (2011), and hence it is the law of the land in India too.

The present situation in India

  • Unfortunately, what has been often witnessed in India is that political functionaries get incensed and cannot tolerate criticism.
  • Then they slap sedition charges or preventive detention laws against their critics, as the Maharashtra government did in the case of the cartoonist Aseem Trivedi, or the West Bengal government did in the case of Professor Ambikesh Mahapatra of Jadavpur University, or the Tamil Nadu government in the case of the folk singer Kovan
  • To speak for the poor or marginalised sections of society has become particularly dangerous, as was seen in the cases of those accused of inciting violence in Bhima Koregaon.

Conclusion

  • By enacting the Fundamental Rights of the people in Part III of the Constitution, and by making the courts the guardians of the rights of the people, a solemn duty has been cast on the judiciary to uphold democratic principles.
  • The Manipur High Court therefore deserves to be commended in this connection.
  • It is hoped that other courts in India, too, will follow its example.

Freedom of Speech – Defamation, Sedition, etc.

[op-ed snap]Poll-time censorship

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Nothing Much

Mains level : Valuing freedom of speech over defamation claims by political candidates

CONTEXT

The Bengaluru civil court’s blanket order restraining 49 newspapers, television channels and other media outlets from publishing anything ‘defamatory’ about Tejasvi Surya, the BJP’s candidate for the Bengaluru South Lok Sabha constituency, is contrary to the law and the Constitution.

Violation of free speech

  • The temporary injunction violates the basic principle in free speech law that bars ‘prior restraint’ or pre-censorship of any publication, including the media.
  • As recently as in 2017, a Supreme Court Bench made it clear that pre-broadcast or pre-publication regulation of content was not in the court’s domain.
  • In R. Rajagopal (1994), the court noted that there is no law that authorises prior restraint.

Failing Injunction Test

  • The existence of a prima facie case is a precondition for an interim injunction, and a restraining order may be obtained only if some material deemed defamatory has been published, and when further publication ought to be prevented.
  • Arraying print and electronic media outlets that had not previously disseminated anything defamatory about an individual fails this test, rendering any injunctions obtained against them illegal.

Not substantial objections

  • The allegations that have aggrieved Mr. Surya seem to originate in an individual’s opinion on him on Twitter
  • It is possible that this piece of information was or is likely to be used against him by his electoral rivals.
  • However, this cannot be a reason for a public figure — and a candidate of a major political party, even a debutant, is definitely one — to claim a right to gag the entire media from writing about him.
  • Even if the argument is that the order only prevents ‘defamatory’ content and not responsible reporting or criticism, that doesn’t justify a judicial gag order, as it may be used to prevent the media from writing anything adverse to his campaign.
  • It may also prevent defendants in a future proceeding from using ‘publication of the truth in the public interest’ as a defence.

Conclusion

Requests for omnibus restraining orders against media outlets seem to find favour with some civil judges in Karnataka.  The Karnataka High Court or the Supreme Court must examine this trend and strike down such blanket gag orders.

Freedom of Speech – Defamation, Sedition, etc.

Criticism without incitement to violence isn’t sedition

Note4students

Mains Paper 3: Security | Challenges to internal security through communication networks

From the UPSC perspective, the following things are important:

Prelims level: Section 124A

Mains level: Rising seditious events and the questioned applicability of the IPC provisions


Context

Defining Sedition

  1. Sedition was not a part of the original IPC that was enacted in 1860 — it was introduced in 1870, when it was said it had been dropped from the original IPC draft by mistake.
  2. Under Section 124A of the IPC, the offence of sedition is committed when any person by words or otherwise brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law.
  3. Three explanations added to the provision lay down that while “disaffection” shall include disloyalty and all feelings of enmity, comments without exciting or attempting to excite hatred, contempt or disaffection, will not constitute an offence.
  4. Sedition is a cognizable, non-bailable and non-compoundable offence under the law, entailing life imprisonment as maximum punishment, with or without a fine.

How was this provision of the IPC used by the government of the British Raj?

  1. It came in handy to silent nationalist voices and demands for freedom — the long list of India’s national heroes who figured as accused in cases of sedition.
  2. Lokmanya Tilak was sentenced to six years in jail after he was held guilty of sedition by the Privy Council for writing a piece in his newspaper, Kesari, under the heading “The misfortune of the country”.
  3. However, ‘sedition’ was interpreted differently by the Federal Court that started functioning in 1937, and the Privy Council, which was the highest court of appeal based in London.
  4. The Privy Council underscored the law laid down in Tilak’s case to hold that incitement to violence was not a necessary precondition for constituting the crime of sedition.
  5. It held that excitement of feelings of enmity to the government was sufficient to establish guilt under Section 124A.

How has the Supreme Court interpreted Section 124A since Independence?

  1. In 1962, the Supreme Court dealt with an appeal by one Kedar Nath Singh from Bihar, who had been convicted and jailed under the charge for delivering a derogatory speech.
  2. In his appeal to the top court, Singh questioned the constitutional validity of Section 124A, contending it stifled his right to free speech under Article 19 of the Constitution.
  3. The court faced two directly conflicting interpretations of Section 124A — one by the Federal Court in Niharendu Dutt’s case; the other by the Privy Council in the Sadashiv Narayan Bhalerao case.
  4. The judgments expressed contradictory views on whether the incitement to violence or a tendency to disturb public order was a necessary ingredient of the offence under Section 124A.

Supreme Court ruling in the case

  1. The court examined whether the constitutionality of Section 124A could be protected as a reasonable restriction on the right to free speech, with particular reference to the security of the state and public order.
  2. It upheld the constitutional validity of Section 124A in the IPC by holding that the purpose of the crime of sedition was to prevent the government established by law from being subverted.
  3. This is because the continued existence of the Government established by law is an essential condition of the stability of the State.

What then is sedition?

  1. The Constitution Bench of the Supreme Court ruled in the Kedar Nath case that any act that had the “effect of subverting the Government” by violent means or create public disorder would come within the definition of sedition.
  2. The feeling of disloyalty to the Government established by law or enmity to it imports the idea of tendency to public disorder by the use of actual violence or incitement to violence.
  3. In other words, any written or spoken words, etc., which have implicit in them the idea of subverting Government by violent means, which are compendiously included in the term ‘revolution’ is sedition, ruled the court.

What is not sedition?

  1. The court ruled that disapproval of the measures of government with a view to their improvement or alteration by lawful means is not sedition.
  2. Comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence” would not attract the penal offence.
  3. The court added that “commenting in strong terms upon the measures or acts of Government, or its agencies, so as to ameliorate the condition of the people or to secure the cancellation or alteration of those acts or measures by lawful means is not sedition.
  4. That is to say, without exciting those feelings of enmity and disloyalty which imply excitement to public disorder or the use of violence, is not sedition.
  5. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.

Freedom of Speech – Defamation, Sedition, etc.

[Explained] Sedition and its discontents

Note4students

Mains Paper 3: Security | Challenges to internal security through communication networks

From the UPSC perspective, the following things are important:

Prelims level: Section 124A

Mains level: Rising seditious events and the questioned applicability of the IPC provisions


Context

  1. In recent times, the resort to the section 124-A is seen as disturbingly frequent.
  2. Activists, cartoonists and intellectuals have been arrested under this section, drawing criticism from liberals that it is being used to suppress dissent and silence critics.
  3. Authorities and the police who invoke this section defend the measure as a necessary step to prevent public disorder and anti-national activities.
  4. JNU students and activists, Assamese scholar Hiren Gohain and Manipur journalist Kishorchandra Wangkhem are prominent among those booked in recent days.

Section 124-A of the IPC

  1. The section deals with the offence of sedition, a term that covers speech or writing, or any form of visible representation, which brings the government into hatred or contempt, or excites disaffection towards the government, or attempts to do so.
  2. It is punishable with three years in prison or a life term.
  3. “Disaffection”, it says, includes disloyalty and feelings of enmity.
  4. However, it also says expressing disapproval of government measures or actions, with a view to getting them changed by lawful means, without promoting hatred or disaffection or contempt towards the government will not come under this section.

Its origin

  1. Sedition was introduced in the penal code in 1870, a decade after the Indian Penal Code came into force.
  2. It was a colonial law directed against strong criticism of the British administration.
  3. Its most famous victims included Bal Gangadhar Tilak and Mahatma Gandhi.
  4. Gandhi called it “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.

Constitutionality Check

  1. Two high courts had found it unconstitutional after Independence, as it violated the freedom of speech and expression.
  2. The Constitution was amended to include ‘public order’ as one of the ‘reasonable restrictions’ on which free speech could be abridged by law.
  3. Thereafter, the Supreme Court, in Kedar Nath Singh v. State of Bihar (1962) upheld its validity.
  4. At the same time, it limited its application to acts that involve “intention or tendency to create disorder” or incitement to violence.
  5. Thus, even strongly worded remarks, as long as they do not excite disloyalty and enmity, or incite violence, is not an offence under this section.

Activists demands it to be scrapped

  1. Liberals and rights activists have been demanding the scrapping of Section 124A from the statute books, arguing that it has no place in a democracy.
  2. They argue that it is being invoked even in cases where there is no incitement to violence or tendency to create public disorder.
  3. It is argued that the provision is “overbroad”, i.e., it defines the offence in wide terms threatening the liberty of citizens.

Way Forward

  1. The Law Commission released a consultation paper last year calling for a reconsideration of the section.
  2. It has pointed out that Britain abolished it more than a decade ago.
  3. It raises the question whether a provision introduced by the British to put down the freedom struggle should continue to be law in India.

Freedom of Speech – Defamation, Sedition, etc.

India moves up a rank on The Economist’s Democracy Index 2018

Note4students

Mains Paper 2: Polity | Comparison of the Indian constitutional scheme with that of other countries

From UPSC perspective, the following things are important:

Prelims level: Democracy Index

Mains level: State of democracy in India & world


News

  • The Economist’s Democracy Index has a positive outlook on global democracy, with significant improvement in women’s participation, people willing to engage in lawful demonstrations and voters getting more proactive than ever despite being disillusioned with democracy.

About Democracy Index

  1. The Democracy Index is an index compiled by the UK-based company the Economist Intelligence Unit (EIU) that intends to measure the state of democracy.
  2. It ranks nations on five parameters – electoral process and pluralism, functioning of government, political participation, political culture and civil liberties.
  3. The survey is carried out every year by asking a sample group of people a set of 60 questions.
  4. The report defines a flawed democracy as nations that “have free and fair elections and, even if there are problems (such as infringements on media freedom), basic civil liberties are respected.
  5. However, there are significant weaknesses in other aspects of democracy, including problems in governance, an underdeveloped political culture and low levels of political participation.

India’s Performance

  1. India is ranked at 41 – a notch above last year.
  2. It is still classified as a ‘flawed democracy’ according to the index.
  3. India achieved a score of 7.23 on the index to maintain its position – the same it did last year.
  4. This is the lowest ever score attributed to India in the index ever since its publication.
  5. India ranks below the US (ranked 25th in the index) and other so called ‘flawed democracies’ like Italy, France, Botswana and South Africa.

Scandinavia: The usual topper

  1. On expected lines, Scandinavian nations ranked on top of the democracy pyramid.
  2. Norway was the world’s most perfect democracy followed by Iceland and Sweden.
source

Recent controversy at JNU and invoking of Sedition charges against JNU Student’s Union President has brought back the debate between Sedition and Dissent.

First, Read this interesting story on Sedition

Interestingly, the sedition law was not part of the original IPC. It was dropped by Britishers while enacting the Act, but then they realised its importance in censuring dissenting voices from Indian media, intellectuals, and freedom fighters. It was later introduced by the British in 1870, 10 years after the Indian Penal Code (IPC) was introduced.

One of the prominent convictions include freedom fighter Bal Gangadhar Tilak, who was convicted and sent to prison in Mandalay, Burma in 1908. <Recall the consequences of Surat Split and passivity in the Indian freedom struggle for a long period>

Interestingly, the country which gave India its sedition law, the United Kingdom, repealed the act in 2009.

What is the Sedition law?

Sedition is an offence incorporated in Indian Penal Code. An offence having the element of incitement to violence & disaffection against the govt. established by law.

Section 124 A of IPC says- “Anyone who excites or attempts to excite disaffection towards the govt. established by law, has committed the offence of Sedition.”

It includes a clarification of the word “disaffection”, that it includes disloyalty and all feelings of enmity.

Punishment: Imprisonment upto 3 years to life imprisonment, with fine or without it.

Sedition vs. Fundamental Rights

  • Section 124 A of IPC comes in conflict with Art 19(1)(a) relating to freedom of speech and expression
  • Do you know that some members of the Constituent Assembly made efforts to include sedition as an express ground for limiting speech in Article 19(2)
  • The sedition law died a judicial death in 1958 when the Allahabad High Court declared it ultra vires Article 19(1)(a), which was later revived by apex court in its 1962 judgment

What is Supreme Court ruling on Sedition?

In Kedar Nath Singh vs. State of Bihar 1962 case, the Constitution bench of Supreme court ruled that a person can be charged with Sedition only if there is  actual violence or incitement to violence (spark to a powder keg) or subverting government by violent means, through words either written or spoken.

Later, the Supreme Court unambiguously stated that only speech that amounts to “incitement to imminent lawless action” can be criminalised.

The moral crisis is that in spite of the Supreme Court narrowing the scope of sedition, and in spite of the more recently evolved tests to determine when mere speech or expression can be prosecuted, governments have routinely invoked Section 124-A with a view to restricting even benign forms of dissent.

What is not Sedition?

  • Judiciary held that mere criticism of govt. policy or public servants will not amount to Sedition
  • Thus, words and speech can be criminalised and punished only in situations where it is being used to incite mobs or crowds to violent action
  • Mere words and phrases by themselves, no matter how distasteful, do not amount to a criminal offence unless this condition is met

Can mere anti India slogan shouting be termed seditious?

In Balwant Singh case supreme court held that casual raising of the slogans such as “Khalistan zindabad” once or twice by two individuals alone cannot be said to be aimed at exciting or attempt to excite hatred or disaffection towards the Government.

Need for revisiting the law!!

Section 124-A of the IPC negates the right to dissent, which is an essential condition of any reasonable government. Thus, it is opposed to the idea of a legitimate, liberal democratic state.

  • Indiscriminate use by police officers
  • The definition of sedition is exceedingly broadly worded <Its vagueness certainly did wonders for the colonialists>
  • Difficulty involved in drawing a line between permissible speech and the one amounting to Sedition <There is lot of subjectivity involved, which often leads to its misuse>
  • Attempts shall be made to draw a line in the favour of free speech

Law commission recommendation

Law commission suggested amending Section 124A to widen the scope of actions that would be punishable under the clause but at the same time reducing maximum punishment from life imprisonment to maximum of seven years and/or a fine.

The Road Ahead

Despite the higher judiciary’s best attempts, it seems unlikely that India’s law enforcement agencies will give primacy to right to freedom of speech. However, there are laws such as Section 121 of IPC, which can cover the offences under Section 124A.

This episode should provide fertile ground for the ongoing drive to scrap old, useless and in this case, dangerous laws. However, we should keep in mind that the words which directly provoke violence or which directly threaten the maintenance of public order deserve censure is unquestionable, especially given India’s constitutional structure.

<What do you think guys – Should such speeches be allowed in university campuses, which are highly subsidized by tax payer’s money for anti-national activities?>

Let’s have some answers from you guys –

#Q. Sedition has been characterized as the most misused section of colonial era curbing the free speech. Critically discuss.

Published with inputs from Pushpendra 
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