A research report by the International Human Rights Programme (IHRP) at the University of Toronto, the Faculty of Law; PEN Canada, the Canadian Centre of PEN International, and PEN Delhi members, titled “Imposing Silence”, provides a glimpse
A research report by the International Human Rights Programme (IHRP) at the University of Toronto, the Faculty of Law; PEN Canada, the Canadian Centre of PEN International, and PEN Delhi members, titled “Imposing Silence”, provides a glimpse of how Indian laws dangerously endanger free speech. Text of the executive summary of the 85-page report:
The democratic freedoms enshrined in India’s Constitution set out a political vision that was forged in the crucible of Partition. This vision has informed India’s complex postcolonial history and held the nation together despite its manifold religious, regional, linguistic and caste tensions. The Constitution recognises freedom of expression as a cornerstone of India’s democracy and its enduring importance has helped preserve the country’s fractious public sphere and to sustain its secular, multicultural character. The resulting cultural dynamism has produced, in the words of one observer, “a society of swiftly inflating expectations, where old deference crumbles before youthful impatience,” where “capital is restless [and] new, unforeseen threats and risks are facts of life.”
Despite its Constitutional commitment to free speech, India’s legal system makes it surprisingly easy to silence others. Routine corruption, inefficiency, and the selective enforcement of vague and overbroad laws allow individuals, or small groups, to censor opinions they find distasteful. The Indian Penal Code (IPC) offers would-be censors a wide range of potential offences, many of which do not require malevolent intention on the part of the communicator. If you disagree with something that can be said to promote “enmity,” jeopardise “national integration,” “maliciously” insult religion, or foster “enmity between groups,” it is not difficult to invoke censorship.
India inherited many forms of censorship from the British but it has also “preserved, sustained and expanded” this legacy. Every year thousands of ordinary citizens endure the graft and inefficiency that result from overreaching legislation and a poorly administered justice system. This exacerbates existing social disparities and prevents redress for those who are silenced. The resulting chill deters many who might have otherwise spoken out, often marginal voices and critics of the reigning political establishment.
An ineffective lower court judiciary, and inconsistent legal precedents from appellate courts undermine predictable application of the law. This emboldens plaintiffs to pursue suits that would otherwise be dismissed for lack of cause. The resulting wave of mala fide actions consumes scarce judicial resources, and forces defendants to bear significant legal costs and/or waste years in court defending their right to free speech.
Despite the Supreme Court of India decision vindicating aspects of free expression on the Internet earlier this year, the overall trend reveals declining interest on the part of the judiciary in defending freedom of expression, especially in local courts that are more susceptible to corruption and undue influence and where the judges tend to hold less liberal values.
Taken together, these problems result in numerous violations of Indian citizens’ right to freedom of expression, and to the due process guaranteed in international treaties to which India is bound as a party.
Repeals and amendments to current legislation would clarify Indian law, decrease police overcharging, reduce caseloads, and result in speedier trials. A clarification of Supreme Court precedents would lessen uncertainty in lower courts and discourage frivolous lawsuits. As it did recently the Supreme Court is also in a position to re-interpret Constitutional limits on freedom of expression and harmonise them with international human rights law.
The vague and overbroad phrasing of several sections of the Indian Penal Code (IPC) and the Code of Criminal Procedure (CCP) can be used to restrict freedom of expression, not only by governments, but by almost anyone who wishes to silence another. These include:
- Section 95 of the CCP, which empowers state governments to seize and prohibit publications that “appear” to violate six discrete sections of the IPC. Although explicit grounds must be given for a forfeiture declaration, the burden of proof for underlying offences does not even rise to a balance of probabilities in court.
- Section 124A of the IPC, which criminalises sedition. Throughout India’s history this overbroad provision has been used to silence public figures, including Mahatma Gandhi. More recently it has been used to justify the harassment of several thousand protesters at a nuclear site, a situation that prompted a formal inquiry from three UN Special Rapporteurs.
- Section 153A of the IPC, which attempts to preserve “harmony” between a variety of enumerated groups by barring speech and several other acts. In January 2015, a BJP Minister was charged under s.153A for re