21 June 2019

#FOEIndiaSeries | 8. Women's Existence in Patriarchy

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Processes of Regulation


Part II. Regulating the Substance of Speech


8. Women’s Existence in Patriarchy


It is undeniable that Indian society is deeply patriarchal. Unfortunately, this not only means that women’s agency and autonomy may be severely circumscribed by men, but also that women’s lives can easily be destroyed either metaphorically, with their being cut off from their finances and social circles, or literally, with their having been killed either before birth, soon after, or at some point during the course of their lives, as disease burden statistics and sex ratios almost all over the country indicate.

All too often, women are killed for reasons which are culturally familiar: a woman’s family not having provided what a husband and his family consider to be enough dowry, a girl’s family not wanting her at all because of her being a girl. The law recognizes that practices which lead to women being killed exist, and has made an effort to curtail both the practices themselves as well as speech which either encourages or facilitates them.

Although equality before the law is enshrined in the Constitution which also explicitly states, that ‘the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them’ while listing fundamental rights, the Constitutional commitment against State discrimination does not make all affirmative action illegal. In fact, the Constitution explicitly states that nothing in the Article against State discrimination prevents the State from making any special provision for women and children. As such, enactments specifically designed to protect women do not necessarily offend the Constitutional scheme.

Amongst the statutes which are specifically intended to counter social practices which harm women is the 1987 Commission of Sati (Prevention) Act. Sati is, of course, an old Hindu tradition which has usually involved burning widows along with their husbands’ corpses. Apart from concremation (where both spouses are cremated simultaneously), there are two other forms of Sati which are possible: the cremation of a wife after her husband had died and been cremated, and cremation in anticipation of widowhood. Western accounts of the practice date back to the time of Alexander’s invasion of the subcontinent, at which time the Greeks seem to have suspected that it had developed to discourage wives from poisoning their husbands.

By the time of the Raj, Sati became a practice which the British found abhorrent and passed legislation against. Their propaganda appears to have left the lasting impression that it was the British who did away with the practice in India. However, Sati seems to have been an uncommon practice even in Vedic times and, despite having been either banned or made as difficult to accomplish as possible at numerous times and in many places, it continued to survive till well after the British Empire had died in India. Before the British Raj had ended in India, the Peshwas of the Maratha Kingdom, the Mughals, the Portuguese, and the Dutch had all attempted to curb the practice, and many Hindu scholars had challenged it.

As far as the British are concerned, it is possible to view both their engagement with Sati, and that of Hindu reformers, through financial relations of the time. By the time the British spoke against Sati, they had already largely cut out middlemen in trade, and their political power was growing. It is likely that it seemed important to some Hindu reformers to abandon the practice of Sati although, even so, the reformer Raja Ram Mohun Roy is reported to have privately suggested that the British not interfere. Nonetheless, once the British did interfere, he supported the measures they took.

From the British point of view, apart from likely having seemed to be been abhorrent, acting against Sati helped them to demonise native men, and to justify their rule (and plunder!) of India with moral arguments. These were arguments which sounded good as long as they weren’t closely scrutinised: the British interest in Indian women’s rights did not stretch far to put it mildly and, in many ways, they wound up making the lives of women considerably more difficult by importing into India their own moral precepts forged in a land whose culture was alien to India’s culture.

For example, it was the British who degraded the public position of the adult woman who was not a wife, and took her from possibly being an independent, well-studied woman to being viewed in terms of a prostitute often considered to be beneath contempt. Their legacy in relation to women’s rights is extremely uneven, to say the least, and emerged through a combination of expedience and ethics, with the former superseding the latter all too often.

With that background, it wasn’t at all surprising that, despite the British claiming to have eradicated Sati, there came to be Sati committed in Deorala in Rajasthan in 1987, a good 40 years after the they left the country. It was impossible to later establish the circumstances in which the act took place with any degree of certainty worth mentioning, but what wasn’t debatable was that a barely-adult woman was burnt alive in plain sight of many people beside her husband’s corpse. The place where she died became a place of worship, and hundreds of thousands of people came to pay their respects in a land which venerates Sati and those who commit it.

Women’s rights groups weren’t impressed, and just as there were prayers at the funeral site, so too were there protests elsewhere.

Less than a month after the commission of the Sati, the Rajasthan State Government promulgated the Rajasthan Sati (Prevention) Ordinance, 1987, which was followed by the enactment of the 1987 Commission of Sati (Prevention) Act by the Parliament of India. The statute came into force in 1988, and, amongst other things, it has since made the glorification of Sati a criminal act. How successfully the Act has realised its aims is, however, anyone’s guess.

Under anti-Sati law, it doesn’t matter whether or not Sati is claimed to be voluntary. Also, although it does not explicitly say so, the law appears to recognize all three kinds of Sati as being problematic: anticipatory Sati, concremation, and Sati after the husband’s funeral. It does this by recognizing that any woman, widow or not, can be a Sati, and that she may be burnt or buried alive either with the corpse of her husband or another relative, or with an article associated with the husband or the relative.

In relation to Sati, there are two kinds of speech which are criminalised by law: speech which is conducive to the commission of a specific act of Sati, and speech which either glorifies Sati in general or which glorifies a specific act of Sati after its commission. Although the statute itself does not explicitly delineate the two kinds of speech by naming them, the following, which are all criminal offences, could all be considered to fall within the first category: inducing a woman to commit Sati, encouraging her ‘to remain fixed in her resolve to commit sati’, or making her believe that the commission of ‘Sati would result in some spiritual benefit to her or her deceased husband or relative or the general well-being of the family’. All of these are considered to be the abetment of Sati.

In contrast to this, in the second category of prohibitions falls speech which glorifies the practice of Sati in more general terms: ‘supporting, justifying or propagating the practice of Sati in any manner’ is a crime, as is observing any ceremony or the taking out a procession in connection with the commission of Sati.

Thus, the statute against Sati is a law which directly targets women being killed although its efficacy is questionable. Although Sati is not common at all anymore, there is absolutely no doubt that those women who have committed Sati are honoured by the society to which they belong. A woman’s life is inextricably intertwined with that of her husband, and committing Sati may be seen as an act of devotion. Also, Sati shraap or the curse of a woman who is hindered from committing Sari is greatly feared.

It isn’t entirely clear to what extent a woman’s enthusiasm to commit Sati may be influenced by the knowledge that her life as a widow would be severely curtailed, and that she would, in many areas of social life, effectively be shunned. What is quite clear though is that it simply isn’t possible to completely eradicate socio-cultural practices (or the nostalgia and admiration which they may evoke) simply by passing a law.

Women who follow their own path are rarely treated kindly especially since the assertion of their own will may involve their claiming property rights. In families and communities which are patrilineal, a woman’s challenging the likely prevalent patriarchal order could result in her being killed. Not all the violence women face is direct, and not all of it is perpetrated by women’s own families. It may take forms such as spreading rumours that a woman is a witch which, in conservative communities, could exponentially increase her vulnerability to being assaulted or killed, or which could simply be used as an excuse to kill her.

To an extent, the danger posed by accusations of witchcraft is an issue which the law recognises and attempts to ameliorate. For example, the 1989 Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act disallows persons who are not members of scheduled castes or tribes from causing ‘physical harm or mental agony’ to persons who belong to a scheduled castes or tribes ‘on the allegation of practicing witchcraft or being a witch’. Although this obviously doesn’t cover the entire spectrum of circumstances in which persons — and, as ground realities indicate: women, in particular — can potentially have their lives snatched from them in the most literal sense of the words, it does create the possibility of invoking criminal law should speech be used to brand women who belong to scheduled castes or tribes as witches or to harass them once an allegation is made. The statute itself doesn’t clearly differentiate between the initial allegation and a person being caused mental agony on account of such an allegation but it is possible to argue that even the initial allegation would fall within the scope of the statute as it is entirely plausible that it would cause mental agony in and of itself.

The law, for all the good it may aim to do, cannot act by itself though. It is but one of the factors which influence human behaviour and speech in social contexts, and it forms part of a complex web (along with other factors including caste, class, religion, gender, and superstition) within which people operate.

Simply having a law which says that specific speech or conduct is illegal is unlikely to keep people from engaging in it, especially since, the paucity of resources aside, law enforcement personnel too are drawn from society, and they may tend to be liable to see the law, which is always subject to interpretation, through the prism of their own beliefs.

The criminalisation of speech in and of itself, even when the speech may constitute an act, is not always ideal. Consider the so-called Triple Talaq Bill which was introduced in 2017, and immediately passed in the lower house of Parliament. Even leaving aside drafting anomalies in the Bill, its stated intention was to put an end to the practice of Instant Triple Talaq, as it had been dubbed, through which a Muslim man could divorce his wife effectively at whim simply by saying the word ‘Talaq’ three times.

By the time the Bill was introduced, the Supreme Court had already decided that Instant Triple Talaq would have no legal consequences, so it wasn’t entirely clear why there was a pressing need to seemingly attempt to push the Bill through Parliament especially since there did not appear to have been any consultation worth mentioning with either the public in general or with members of the Muslim community in particular.

Of particular concern was that, although the Bill recognised a woman’s right to maintenance, it also contemplated jailing men for having said Talaq three times in a single sitting. At no point was it made clear how a man would be able to support his wife and, possibly, his children from jail. And, to compound concerns, a provision in the Bill indicated that anyone could file a complaint in this regard even without the consent or desire of the wife in question, thus stripping her of much of her agency.

There is absolutely no argument to be made against Instant Triple Talaq being an outrageous practice which could destroy women’s lives and which consequently deserves be banned, or against maintenance law being a disgrace in desperate need to being rehauled. Nonetheless, it doesn’t automatically follow that the criminalising the utterance of the word ‘Talaq’ three times in a single sitting has ever the ideal way to proceed, if not for any other reason than simply because no study seems to have been undertaken to consider how a jailed man might maintain his family unless he had assets or a substantial income which did not depend on his being free. And considering that no person can live without an adequate amount of money, it would appear that criminalisation would not necessarily best serve the interests of women who were victimised by the practice.

Thus, although banning speech and criminalising it may seem to be the obvious course of action where it devastates the lives of those at whom it is directed, such criminalisation does not necessarily serve anyone’s interests well including those who are victimised. Neither does legislation in and of itself necessarily produce desirable social change. And, in some cases, it is possible that legislation, perhaps coupled with technological advances simply masks one form of abuse and substitutes it with another.

Consider sex ratios. Almost across India, they are skewed indicating that women are killed not only throughout the course of their adult lives but also as girls, and shortly after, if not before, birth. Given that girls are often unwanted in Indian homes particularly since they bring with them the almost-obligatory requirement of providing a dowry and the potential of ‘taking away’ property which would traditionally have remained within a family’s patrilineal line, it is unsurprising hear of girls and women being killed. In recent years, however, the problem of female infanticide has been compounded by female foeticide. The latter has, of course, been facilitated by the development of technology which allows the sex of a baby to be determined before birth.

In order to arrest the practice, the 1994 Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act was passed. Amongst other things, it prohibited advertisements relating to the pre-natal determination of sex, and said that contraventions of the relevant provisions of the statute would be punishable with imprisonment for a term which could extend to three years and with a fine of up to ten thousand rupees. The statute itself also clarified that, as far as it was concerned, a prohibited advertisement could include ‘any notice, circular, label wrapper or other document’ or ‘any visible representation made by means of any light, sound, smoke or gas’. In doing so, it made clear that were allegations of advertising to be made, the substance of a communication would be material and not the format or mode of the communication.

Additionally, the statute unequivocally states: ‘No person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives the sex of the foetus by words, signs or in any other manner.’

Despite its best intentions, however, the impact of the law is questionable. Every once in a while, one hears of clinics which develop sometimes elaborate codes to inform prospective parents of what the sex of their children would be even if they do not tell them directly. And, if one were to rely on hard data, considering that sex ratios even at birth remain skewed with many girls simply ‘missing’, there are strong reasons to believe that technology is deployed to ensure that girls are simply not born.

The effect of formally restricting speech to both to control advertisements of pre-natal sex determination, and to control the communication of such determinations to the families of would-be children has been limited, as it was always likely to be. Social change cannot be engineered by statute alone.

That the impact of the law is limited is particularly clear when it comes to statutes which ban practices which have no immediate and visible impact on the existence of women’s lives. Consider the Dowry Prohibition Act, for example. This 1961 law, amongst other things, explicitly prohibits demanding a dowry or advertising an offer of a dowry as consideration for the marriage of one’s child or any other relative. The prohibition is an important one considering that women are routinely killed supposedly because of the lack of an adequate dowry. In fact, a provision dedicated to addressing so-called ‘dowry deaths’ was later inserted into the Penal Code as Section 304B because of the extent of the problem. However, neither the prohibition on giving or taking dowry, nor the special attention paid to dowry-related murders by criminal law, has stopped women from being killed from dowry much less stopped negotiations to decide on what would constitute an ‘acceptable’ dowry.

The law has made dowry agreements void, but that hasn’t kept such agreements from being made. It has only stopped persons from being able to approach courts of law to have the agreements enforced.

And so it is that women are often killed despite the law stipulating restrictions to free speech which are intended, however obliquely, to keep them alive. Although there probably are those who would argue that there shouldn’t be speech restrictions, there are sound reasons for having such restrictions in place.

Most determinations of rights depend on balancing different rights against each other and possibly giving one precedence over the other. In this case, the right to free speech is implicitly weighed against the right to life, and it’s hard to argue that the right to life — specifically, women’s right to remain alive — should be superseded by other people’s right to free speech when that speech can lead to their deaths. Not all restrictions on free speech are necessarily illegitimate.

There are cases where such ‘jokes’ as so-called ‘dowry calculators’ or ‘prenatal sex determination kits’ accessible online are vociferously defended as being ‘just for a spot of fun’. The problem with them, however, is that, even leaving aside legality for the moment, jokes carry with them the burden of the politics of social allegiance and the ethics of the formation of normative rules which signal social acceptability. Their prevalence further normalises practices which have the potential to lead to the deaths of women.

To those who, in any case, do not question the practices being 'joked' about, whether it is the taking of dowry or the killing of female foetuses, the ‘jokes’ may be viewed simply as being conversations about acceptable conduct commonly engaged in. It is only when they are challenged by those against both the practices themselves and conversations relating to them that the ‘just a joke’ defence rears its head along with accusations to the effect that those who challenge the supposed jokes have ‘no sense of humour’, which is rarely the case.

Questioning speech which has the potential to normalise abuse and discrimination is not indicative of the questioner’s not having a sense of humour. The case for challenging the sale of prenatal sex determination kits online, even if they are clearly stated not to work, is relatively clear cut. There is no convincing argument to be made to the effect that prenatal sex determination, and the consequent ‘disappearance’ of girls is not a social problem, and there is a convincing legal argument to be made to the effect that the sale of kits to determine the sex of a foetus before birth (even if it is supposedly ‘just for fun’) could violate the law.

Not all cases are as clear: take the case of sexist jokes or rape jokes especially when they mock who are raped or otherwise discriminated against. There are no clear laws against rape jokes or sexist speech in general although comparable social politics apply to them too. They reinforce paradigms where men are privileged possibly to the extent of committing sexual assault with impunity, and they tend to alienate those who are victimised by such social structures not just by possibly triggering them but also by facilitating the normalisation of defences to abuse which are often nonsensical but which may be endlessly repeated in the form of ‘jokes’.

Although some cases of rape, sexual assault, and discrimination may lead to the non-existence of those who are subjected to them, such cases are in the minority. And that could be why it is harder to make a convincing case against supposed jokes which involve such conduct particularly in patriarchal societies — the conduct itself may be widely prevalent and few people may be inclined to pay attention to criticisms of speech which challenge the conduct in any form even if the conduct is itself criminal.

Sexist jokes and rape jokes are not ordinarily illegal in and of themselves, although they highlight the restricted manner in which the law interacts with speech primarily to lay down limits that define what it considers to be legally permissible. Beyond the law exist social norms which form an additional set of limits defining the social permissibility of particular forms of speech. Although legal statutes and social norms are not oblivious to each other, social norms alone cannot be enforced in courts of law. And it is extremely difficult to have legal statutes be enforced unless they are backed by social norms not least because the law cannot be enforced without having a large number of people, all drawn from society, making complaints, providing evidence, and working together to ensure enforcement when the law is broken.

Due to this, no conversation about speech and what should be permissible should consider either legal or social mandates in isolation. The two operate in tandem, and it is important that they be considered together to develop a coherent understanding of permissible speech. This is not just an issue which affects the elite who are often believed to have very little to do with their time; it is an issue which affects everyone and speaks directly to the very survival of many people.

(re the social function of jokes, also see: Jason P Steed, Essays on Humour and Identity in American Jewish Fiction, 2004)

(This post is by Nandita Saikia and was first published at IN Content Law.)

14 June 2019

#FOEIndiaSeries | 7. Maintaining Law in a Plural State

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Processes of Regulation


Part II. Regulating the Substance of Speech


7. Maintaining Law in a Plural State


The Constitution of India governs the rights and duties of both the State and its citizens, as well as those of other persons and processes with which it engages. The Indian State is, of course, legally secular. Its Constitution lays this down in no uncertain terms in its Preamble itself by explicitly using the qualifier ‘secular’ to describe it.

Even if the word were to be removed from the Preamble as some have vocally suggested and others, perhaps more quietly, have hoped for, it would not necessarily change the structure of the State from the secular one in existence to one which could adopt a state religion without challenge. This is simply because it may be possible to treat the Preamble to the Constitution of India simply as the Executive Summary of a much longer document which lays the foundations of a secular state.

Although the word ‘secularism’ did not appear in the Constitution when it was first brought into force — in fact, a proposal to have the word included was explicitly rejected — the exclusion of the word is, by no means, an indication that the framers of the Constitution did not envisage the State being secular. On the contrary, they saw the fact of the secular nature of the Indian State as being almost axiomatic. There were debates at the time about what the term should mean — whether it should involve a complete separation between state and religion, or whether it should take the form of the grant of equal respect to all religions — but there was no serious line of thought which proposed the formation of a theocratic State.

What ultimately emerged was a State which brought into being its own unique form of secularism: whilst not being entirely divorced from religion, the State would not adopt any specific religion as its own.

The Constitution does not itself discriminate between people depending on their religion stating, in no uncertain terms that ‘the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India’ in the Chapter dealing with fundamental rights. It puts into place mechanisms to keep people from being subjected to discriminatory practices on the basis of their religion. It also affords freedom of religion not only to individuals in the practice of their own belief but also to groups through which organised religions govern their own affairs.

One of the more questionable consequences of religious freedom is that individuals often find themselves governed not by secular laws in their personal lives but by laws specific to the religions they may only nominally belong to. Nonetheless, what is unarguable is that the Constitution recognises that there exist multiple religions and religious practices within the borders of the State it governs, and does not intend to be a partisan arbitrator of differences between religious and communal factions or to have the State take upon itself that role.

There have been numerous examples in India of communities which follow different beliefs borrowing freely from each other’s practices, assimilating beliefs likely once alien to them into their own beliefs systems, and, even without taking steps towards having a syncretic structure develop and thrive, living peaceably with each other without constant fear or discomfort. The Virgin Mary, for example, is considered to be the sister of the Hindu Goddess Bhagwati in some parts of the country, and they are both treated with reverence by Hindus and Christians alike. That said, communal tensions have not been non-existent in India by any stretch of the imagination, and it is in situations where tensions flare, often at the instigation of people who make inflammatory speeches, that it is useful to have legal provisions in place to counter the (further) spread of disharmony, and whatever combination of hatred and violence could possibly manifest itself.

Although of these laws in their current form were brought into being only after Independence, it is a matter of no small irony that such provisions were first introduced into the Indian Penal Code by the British who can hardly be lauded for promoting societal harmony considering that their policy of dividing the country and ruling it relied on fanning mistrust between various communities. In fact, not only did the British enhance fissures between communities following different religions, they also managed to create fissures within those populations which followed the same religion.

In Telangana, for example, it was their agro-colonialism and land ‘reforms’ which, building on the established caste system, created a new class of extremely rich landowners with the power of feudal lords for whom others worked as bonded labourers or virtual slaves depending on their earlier position in the caste hierarchy.

Apart from actually creating new caste systems, the British also leveraged existing caste systems for their own benefit. Consider the battle 1818 battle of Bhima Koregaon near Pune between the Peshwas and the British: in addition to being a battle between the two stated forces, it was also a battle between ‘upper’ caste Marathas who were the Hindu elite and ‘lower’ caste Malhars who fought for the British. Unsurprisingly, historical narratives are contested, and, narratives of caste and colonialism are, and is so often the case, inextricably linked. Depending on who tells the tale of the battle, one either hears of some Indians having supported a foreign power or of some Indians who had been oppressed for centuries finally having risen against their oppressors.

There can be absolutely no claim that Indian society was egalitarian: throughout known history, those belonging to the so-called lower castes and those who were out-castes had almost invariably not been treated as equals by the 'upper' caste people who almost completely monopolised power and knowledge. The British, in their greed, capitalised on existing societal fissures to consolidate their rule over a large part of India.

It was, however, not only the British who strengthened the foundations of contemporary societal disharmony on India. Westerners who approached the country and its inhabitants attempting to study India from an Orientalist point of view did the country no favours either. Apart from almost creating the ‘White Man’s Burden’ out of thin air, claiming that it formed part of the supposed moral and ethical justification for Empire, they quite often simply took what they saw and learnt, and recast it to mould their own beliefs about India to the detriment of local populations.

Take the tale of Queen Padmavati, for example: it was a Frenchman who, in the early 20th century, learnt of Padmâvatî through the epic of Malik Muhammad Jayasi who lived about 200 years after she is believed to have lived, and who then, based on the Jayasi epic, wrote an opéra-ballet ostensibly about her. His work, however, saw both the Queen and the environment she lived in through distinctively non-Indian eyes, played up communal tensions, and laid the foundation to turn the philosophical enquiry entwined in Jayasi’s original, which dealt in archetypes and highlighted the fight between good and evil, into an unadulterated tale of communal rivalry if not of communal hatred. In doing so, the Frenchman also failed to appreciate just how deeply Queen Padmavati has been venerated in India.

With both our own discomfort with those who are not like ourselves, and the legacy of divisiveness which the British left us, it isn’t uncommon to see tensions flare, too often accompanied by hate speech. Colonial laws which could help counter divisiveness have been retained and newer post-colonial laws have been introduced as well to attempt to maintain harmony.

In the most general terms, the 1993 Human Rights Act requires the Human Rights Commissions formed under the statute to perform functions which they consider necessary to protect human rights, and, in practice, this has meant that those who publish content which violates human rights or which has the potential to encourage the violation of human rights may find themselves receiving notices from a human rights commission which ask them to explain themselves. The statute is, however, rather vague law and has often been accused of lacking teeth.

There are also several criminal law provisions which may be invoked to restrict the publication and dissemination of content which could spread hatred or encourage disharmony within society. For example, Section 295A, introduced to the Penal Code in 1927, deals with ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’ and is part of the Indian corpus juris, as is Section 153B which was only introduced in 1972 to counter ‘imputations, assertions prejudicial to national-integration’.

Amongst other provisions in the Indian Penal Code which may be invoked to deal with speech the expression of which runs against the maintenance of societal harmony are: Section 153A which deals with promoting enmity between different societal groups and performing acts prejudicial to maintenance of harmony, and Section 505 which deals with statements conducive to public mischief.

Beyond the Penal Code, the 1989 Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, in essence, specifically aims to address the maltreatment of persons belonging to tribes and persons belonging to what have traditionally been perceived as 'lower' castes, which have been listed in a Schedule to the Constitution, by persons of other castes. In some cases, it criminalises speech outright by laying out provisions which makes speech criminal if it ‘promotes or attempts to promote feelings of enmity, hatred or ill-will against members of the Scheduled Castes or the Scheduled Tribes’ or if it ‘disrespects any late person’ whom they hold in high esteem. In other cases, it criminalises certain acts against members of Scheduled Castes or the Scheduled Tribes, and, although it doesn’t specifically mention speech, it is difficult to imagine that the legislature did not intend to criminalise speech associated with or leading to the commission of the prohibited act. For example, the statute criminalises imposing or threatening to impose ‘a social or economic boycott of any person or a family or a group belonging to a Scheduled Caste or a Scheduled Tribe’ — considering that it would not be possible to commit such an act without engaging in some form of speech, the statute could also be considered to contain within its text indirect restraints on speech in addition to direct restraints.

As a general rule of criminal law, a person cannot be held to have committed an offence unless he intends to commit it. However, establishing such mens rea, as it is referred to, is a challenge. In early judgments dealing with Section 153A of the Penal Code, what was considered was the consequence of the conduct under consideration. And in one case, the Court interpreted the law stating, ‘The legislature contemplates that the words spoken or written which do promote hatred etc. create sufficient mischief so as to fall within the scope of Section 153A and that it is not necessary for the State to further establish that the writer had the intention to promote a hatred,’ continuing, ‘Even if a question of intention were to arise, such intention must be gathered from the written words in the present case, and they themselves would be conclusive and it would not be necessary for the State further to prove that such intention was obtained by the use of such words.’ In later years, however, the approach of the judiciary began to change, and it is now reasonably well-settled that there must be mens rea on the part of the accused to commit the offence.

The provision of the Penal Code which is most closely linked to religion is Section 295A which is, for all practical purposes, an anti-blasphemy law drafted using a template which formed the basis of anti-blasphemy legal provisions across vast swathes of the erstwhile British Empire. It criminalises outraging the religious feelings of any class of citizens of India, and either insulting or attempting to insult the religion or the religious beliefs of that class.

There has been no debate about mens rea in relation to Section 295A as its text unequivocally indicates that an accused person must have acted ‘with deliberate and malicious intention’ to have committed an offence. A similar ‘ingredient’ or requirement is to be found in other offences in the Penal Code which deal with having engaged in unlawful conduct in relation to religion. For example, Section 296 of the Penal Code which criminalises disturbing religious assemblies requires the offence to have been voluntarily caused, and the assembly itself to be lawful, while Section 298 of the same Code which criminalises the making of utterances and gestures which could wound others’ religious feelings requires that they be made with ‘the deliberate intention’ to wound. As such, under these provisions, accidentally acting or speaking in a manner which denigrates or interferes with the observance of another’s religious beliefs or practices would likely not be considered a crime.

That said, having accidentally committed an act or engaged in speech which would amount to an offence under the provisions of criminal law is not an impenetrable defence should one be accused of having committed them. Also, Section 295A of the Penal Code, the so-called anti-blasphemy law goes one step further: it states within its own text that it does not require an accused person to have successfully managed to have been insulting to be considered to have committed the offence.

The courts have tended to do what they can to ensure that both Section 153A and the provisions against hurting religious sentiments to which it is allied are not used arbitrarily, and to ensure that they are not used to suppress scholarship. They have looked at the context in which speech is made, and have recognised that there exist circumstances in which authors, printers, and publishers should not be proceeded against for their roles in writing and distributing texts of serious scholarship.

However, the courts have also placed caveats on academic freedom by doing such things as holding that an author may not legally ‘use language which shows malice and is bound to annoy the members of the other community so as to degrade them in the eyes of the other classes’ noting that ‘adherence to the strict path of history is not by itself a complete defence to a charge under Section 153A’, the provision which intends to counter those who create enmity between people based on their differences.

Nonetheless, ‘truth’ may be a partial defence to an accusation of having committed a crime under Section 505 of the Penal Code which criminalises statements which could lead to public mischief. This is due to an exception to the provision which explicitly exempts people from liability for making, publishing or circulating such statements, rumours or reports, if they have reasonable grounds to believe that the information they share is true, and if they themselves act in good faith without mala fide intentions.

Precisely what constitutes an offence under criminal law varies from Section to Section, but in the most general terms, speech which could be considered to be inflammatory, to strengthen or create enmity between societal fractions or groups, or to hurt religious sentiments is potentially criminal especially if it is either untrue or intended to enhance societal fissures.

Further, if a State Government thinks that the content of a printed document may violate the provisions of the Penal Code which criminalise sedition, obscenity, or engaging in speech which promotes societal disharmony, it may forfeit every copy of the document via a notification which explains why it holds that opinion, although any person who has an interest in the document may approach the High Court to have the notification set aside.

In issuing such a forfeiture notification, the Supreme Court has said that the State should consider the work as a whole and the intention of the author. It has also noted that ‘the class of readers for whom the book is primarily meant would also be relevant for judging the probable consequences of the writing’ and stipulated that the State cannot ‘extract stray sentences of portions of the book’ and reach its conclusions based on them. Additionally, the Bombay High Court has held that, for the purposes of challenging a notification, any citizen would be considered to be a person with an interest in the document. Explaining the rationale underlying its opinion, the court stated:
"In our opinion it will not be possible to place such restricted meaning to the expression 'any person having an interest'. The right of a citizen to be informed is a part of our cherished fundamental right of freedom of speech and expression. Even if Section 95 amounts to a reasonable restriction, yet the Government must satisfy that the act of forfeiture was according to law. A citizen therefore, having an interest in the right to be informed, as a larger part of his right of freedom of speech and expression, will be a person having any interest."
Thus, the judiciary has significantly tempered the provisions of the 1973 Criminal Procedure Code which allow forfeiture and which could be invoked to effectively ban content, and support free speech.

While it is, without doubt, the responsibility of the State to maintain public order even in the face of having people engage in critical speech in public fora, it doesn’t necessarily follow that such speech should always be legal especially if it perpetuates societal inequities which manifest themselves in ways which do not allow people the right to live their lives with so much as a basic degree of dignity.

That said, all critical speech cannot and does not fall within the ambit of illegal speech, and, historically too, there has been space for criticism although that space has not always been fairly distributed. Hinduism, the religion which the majority of the population follows, for example, has a long tradition of ‘Shankavali’ which involves raising theological doubts. The ultimate aim of raising doubts may be to clarify and reaffirm one’s religious beliefs but, even so, it cannot possibly be argued that unquestioning acceptance of religious precepts has ever been mandatory.

Challenging received wisdom is not alien to Indian culture, and the law does not expect blind adherence to traditional knowledge, belief, or practice.

The issue is probably determining where the line should be drawn to differentiate between acceptable criticism which is often indispensable for reform and unacceptable hate speech which does real harm, and how the line should be drawn so that one doesn't fall into the trap of saying either that all unpleasant speech should be permissible or that all unpleasant speech should be prohibited.

(This post is by Nandita Saikia and was first published at IN Content Law.)

7 June 2019

#FOEIndiaSeries | 6. Keeping the State Functional

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Processes of Regulation


Part II. Regulating the Substance of Speech


6. Keeping the State Functional


One of the purposes of free speech is to ensure that public opinion can be articulated, in no small part so that the State flourishes by functioning smoothly in a manner which benefits its citizens. Obviously, not all speech made about the State is required to be laudatory.

Reasoned and constructive criticism, in conjunction with praise or acquiescence, is necessary to be able to articulate public opinion which is, even at the best of times, difficult to discern. These difficulties, however, make it all the more important to have mechanisms through which public opinion can be expressed (in addition to through the vote) so that in representative democracies, those who represent the people are able to understand what it is that the people want.

In order to have the State function in accordance with both the will of the people and the Constitution, it is important to have free speech be protected. And, so it is by the law although the protection accorded to free speech isn’t absolute and what could be considered to be the essence of the State cannot legitimately be brought into disrepute. The 1971 Prevention of Insults to National Honour Act, for example, criminalises bringing the Indian National Flag or the Constitution of India into contempt (whether by words, either spoken or written, or by acts).

Nonetheless, despite speech being regulated, no arm of the State — legislative, judicial, and executive — is immune from challenge or criticism even though they cannot be criticised simultaneously without basis and with impunity. There exist a number of laws through which speech which could threaten the existence of the State may be regulated although they could also potentially stifle valid dissent depending on the situation.

As far as the executive is concerned, laws against sedition restrict speech against the government. To protect the legislature, the law recognises the breach of parliamentary and other legislative privilege as being illegal. And, in relation to the judiciary, the possibility of committing contempt of court restrains unfettered and wild criticism.

Contempt of court can occur in two forms defined in the 1971 Contempt of Courts Act. The first is civil contempt which is associated with not following the orders of a court. The other is criminal contempt which is what is particularly pertinent to free speech as it is through this form of contempt that the publication of content is restricted if it tends to or succeeds in scandalising or lowering the authority of any court, or prejudicing or interfering with the course of judicial proceedings, or otherwise obstructing the administration of justice.

Initiating criminal contempt proceedings is, however, not entirely straightforward in the sense that a member of the general public cannot simply decide to ‘file a case’ to have such proceedings initiated. As a general rule, the Supreme Court or a High Court would take cognisance of criminal contempt of its own initiative, upon a motion made by a legal officer recognised by the statute for the purpose or a person acting with his written consent, or upon a reference being made to it by a subordinate court.

Thus, the statute is not designed to stifle all commentary relating to the courts, their functioning, and the merits of their decisions. It is only designed to restrain such comments as would bring the judiciary into disrepute and interfere with its functioning. So, it would not ordinarily amount to contempt of court to write an analysis of an order or judgment of a court in a specific case, even if it were scathing, provided no aspersions were cast on the judiciary in doing so, and, if the matter were still under consideration by the court, no declarations were made as to the certainty of the guilt or innocence of the accused person. However, imputing dishonest motives to the judge who had issued the order would almost certainly be liable to be treated as contempt of court, particularly if there was no demonstrable basis for doing so.

If a person were held to be guilty of committing contempt of court, he would ordinarily be liable to be punished with up to six months’ simple imprisonment or a fine of up to two thousand rupees or with both. That said, he could be discharged or the punishment awarded to him could be remitted upon his apologising in good faith, even if his apology were qualified or conditional.

Section 4 of the 1971 Contempt of Courts Act states that no person shall be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage of one held in open court. And Section 13 of the same statute both states that ‘no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice’ and recognises that a court may permit ‘truth’ to be invoked as a valid defence in contempt proceedings ‘if it is satisfied that it is in public interest’ and the request to invoke the defence is made in good faith.

In comparison to the law of contempt, the law against sedition, which is a colonial hangover, could be considered to be far more harsh especially since truth is not necessarily a valid defence. The provision which defines the offence, and specifies the punishment for having committed it, appears in the Penal Code and reads as follows:
Section 124A, Sedition: Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression "disaffection" includes disloyalty and all feelings of enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.—Comments expressing 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.

Thus, sedition is a criminal offence; in essence, it involves being critical of the Government and it is entirely possible to commit sedition without being untruthful. However, the draconian nature of the provision is tempered in three ways. Firstly, the Indian Penal Code (in which the offence is defined) itself includes explanations which clarify that merely being critical of the Government without ‘exciting or attempting to excite hatred, contempt or disaffection’ and possibly with the intention of trying obtain the alteration of Government measures by lawful means would not be criminal.

Secondly, the 1973 Criminal Procedure Code ensures that criminal proceedings for sedition cannot be initiated arbitrarily by a random person from the middle of nowhere. The Code states although the offence is cognizable, non-compoundable and non-bailable, the prior sanction of the Central Government or of the State Government must be obtained for a Court to take cognizance of either the offence itself or a criminal conspiracy to it. And, thirdly, there is a body of case law which has done much to limit the scope of the offence.

Before considering what allows the law against sedition to continue to exist and how it functions, it is, however, probably worth taking a look at what brought it into criminal law in the first place. It is, of course, a legacy of the British although it was not part of the Penal Code when it was first introduced. (If not anything else, the capital letter ‘A’ in the number of the Section which deals with sedition is a dead giveaway of not having been in the original version of the statute: very often, when provisions are later introduced into a statute, they are placed somewhere in the middle of it, and since pre-existing provisions are anyway numbered sequentially, they cannot be given a whole number. So, they are left with numbers followed by letters. Such is the case with Section 124A, just as it is the case with other later-introduced provisions such as the much-debated Section 498A of the Indian Penal Code which deals with domestic violence.)

In the case of sedition, it appears Thomas Macaulay who drafted the Penal Code for India had considered including it in the statute but ultimately didn’t do so. It was a decade later that the offence of sedition finally made an appearance in the Penal Code. Even this early version of the law, which attempted to counter Wahabi activities of the time, contained an explanation which clearly stated:
Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government, and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority, is not disaffection. Therefore, the making of comments on the measures of the Government, with the intention of exciting only this species of disapprobation, is not an offence within this clause.

The first version of the law also only criminalised exciting ‘feelings of disaffection to the Government established by law in British India’ or trying to do so. This was, of course, far less broad than the current version of the law which additionally criminalises bringing the Government into ‘hatred or contempt’ or trying to do so. The more stringent, later provision first came into being in 1898 at a time when the British in India were becoming increasingly concerned by how vocal those who demanded independence for India were becoming.

By the time India gained independence from the British, the trials of various freedom fighters including Lokmanya Tilak and M K Gandhi had proved that the law against sedition could be used to suppress what should have been considered legitimate and permissible criticism of the Government. Nonetheless, far from being repealed, early law-makers in independent India retained the provision with minor amendments largely to ensure that the law would be functional in the then newly-independent country. References to ‘Her Majesty’ were, for example, removed.

Due to its legislative history, and the failure of early Independent India to do away with the offence of sedition despite its known susceptibility to be misused, it is difficult to credibly claim that the law should be invalid on the basis of historical misuse. The Indian Constitution does recognise that laws which are inconsistent with fundamental rights, and which were in force in India immediately before the commencement of the Constitution are void in Article 13(1), but convincingly arguing that Section 124A of the Penal Code pertaining to sedition would therefore be unlawful is no easy matter.

Case law does ameliorate some of the difficulties in dealing with sedition law, and understanding what its ambit is. It has quite clearly indicated that the authorship of seditious material is not, in and of itself, enough to cause one to have committed the offence contemplated by criminal law. For an offence to have been committed, seditious content is required to be communicated to another person.

Unfortunately, the emphasis on 'communication' seems to have resulted in a situation where not only does authorship alone not matter but where it is also sometimes considered immaterial. It is possible to commit sedition not just by authoring and communicating one’s own seditious words or messages but also by simply reprinting or publishing another person’s words.

In the context of newer technologies, including online publication, it is possible that intermediaries which offer platforms for publication to individuals without selecting or editing their content would be able to avail of a degree of protection under the law, particularly if they were to delete content alleged to be seditious once it was pointed out to them. However, traditional publishers would likely receive no such benefit.

Also, in the case of intermediaries, such protection is a double-edged sword. Although they may be entitled to protection at law, the procedures they may be expected to follow in order to claim the benefit of the protection the law potentially affords them may be detrimental to the free speech of their users. This is because, although there are some protections in place, to attempt to ensure that they would be as likely as possible to actually be protected, intermediaries would have to take down seditious content.

One might hope that intermediaries would make an assessment as to whether specific content complained of was in fact seditious before taking it down but such an assessment would necessarily be subjective as the law does not lay down clear and objective standards. If the impugned content was not seditious and they took it down, they would have unfairly curtailed another person’s speech (even leaving aside arguments, for the moment, that sedition law is, in its entirety, unfair). And, if the content was ultimately held to be seditious and they had not taken it down, they would likely have entered into a situation where they could potentially be found legally liable for their conduct. Due to this, it wouldn’t be at all surprising if intermediaries were to err on the side of caution, and take down any content which someone complained of as being seditious.

What appears to be clear is that a court will, in determining if the offence of sedition has been committed, take into consideration the intention of the person accused of having committed it. Merely being critical of the Government would not alone suffice to constitute the offence.

For better or worse, it is almost impossible to determine what the intention of any person is at any point of time. Although courts may give the benefit of the doubt to an individual, they also generally assume they people intend to that their conduct will have what could be considered to be natural and legal consequences. And the mechanism by which the courts determine what a specific person intended are, however, anything but clear.

All of this makes the operation of sedition law very unclear. As a general rule, the courts have recognised the value of free speech, and have tried to ensure that free speech rights are not unduly curtailed.

As far back as 1927, even before Independence, it had been held: ‘The expression “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection” must, as a rule of construction, be very narrowly construed so as to interfere as little as possible with the liberty of the subject and the freedom of speech. If a party publishes any matter in a newspaper and it contains no more than a calm, dispassionate and quiet discussion showing possibly a little feeling in the man's mind, that will not be sedition; but if the article goes beyond and attributes improper and dishonest or corrupt motive and thereby is calculated to excite tumult then it is sedition. While a very large amount of latitude is and must be allowed to writers in the public press, the interests of the state must at the same time be not lost sight of and writers cannot under the guise of criticism of public affairs, be allowed to indulge in attributing base, improper or dishonest motives.’

The courts have also laid down that books should be considered in their entirety and not solely with reference to the isolated sentence or extract. That said, it isn’t at all clear how such a standard may be applied to a very short work such as, say, a single-frame cartoon in which allegedly seditious material may be the sum total of the work itself, and which may, for its interpretation, rely on background knowledge which the author assumes his audience would have. The author’s expectation of his audience being well-informed may not be borne out by reality, and the manner in which his work is interpreted by others may in no way reflect what he intended to say.

The ingredients of the Section which describes sedition are clear enough. As the judiciary has stated: ‘In order to sustain a conviction under section 124A, IPC it must be proved that (a) the accused spoke the words in question, (b) that he thereby brought or attempted to bring into hatred or contempt or excites or attempts to excite disaffection, and (c) that such disaffection was towards the government established by law in India.’

The devil, however, lies in the details, as it always does. Considering that there exist interpretational difficulties and no objective standards to guide assessment in the statute, it is extremely difficult to predict whether or not specific content would be held to be seditious. And considering that being held to be seditious would likely involve criminal consequences for the authors, publishers, and distributors of works, the lack of clarity could easily lead to the emergence of an environment where the government was not subject to critical questioning by the press or anyone else even assuming that the press would not lapse into outright sycophancy of its own accord.

While the government is benign and complacent, it probably doesn’t particularly matter whether or not sedition lies dormant in the books as an offence which one could commit. That equation doesn’t apply at all to governments which are sensitive to criticism, and are discriminatory — in the hands of such a government, the law against sedition becomes an extremely powerful tool with which to silence dissent.

The potential for a malignant government seeking to preserve not law and order, or public safety, but simply itself and its power — possibly through the weaponised use of the law against sedition to target critics — is difficult to quantify. That said, it is not difficult at all to imagine the possibility of the law against sedition being indiscriminately misused, and, perhaps, for that reason alone, it is worth reconsidering the continued existence of the law.

The courts may have narrowed the scope of the offence of sedition but that may not be enough to strip it of its ability to impede the general public from engaging with the democratic process through criticism of government conduct and policy, and, possibly, influencing opinion to change who is in power through elections.

The law recognises undue and unfair influence during the election process to be problematic, and, in polling areas for 48 hours before an election, the 1951 Representation of the People Act prohibits the public display or propagation of election matters through modes of communication such as the television.

However, electoral law does not necessarily hold in check the power or ability of governments to stifle dissent and solidify their own positions long before elections actually take place. And, it is over a much longer run that a 48-hour period that public opinion can be hardened through both suggestion — possibly in favour of governments using SocMed or mass messaging services — and the silencing of contrary voices.

If speech is of a nature which actually results in, say, a riot or has the potential to lead to violence in the streets, there are several provisions in the Penal Code which could be invoked to counter those who peddle in it. There seems to be no clear reason why, when alternative provisions exist to counter speech which could result in real world violence or even in the enhancement of real world societal divisions, the Government should be placed on a pedestal and given the ability to allow criminal proceedings to be initiated against those who are critical of it. And it is worth noting that for the initiation of proceedings, the speech in question need not necessarily be seditious: the issue of whether or not it is seditious will only be determined through trial which will almost certainly be stressful and expensive for anyone who is accused of the offence.

Compared to the law of sedition, the law relating to legislative privileges is far more unclear. It is uncodified, meaning that it has not been laid out in any statute, but it finds a legal basis in India in Articles 105 and 194 of the country’s Constitution. These two Articles deal with legislative privileges: the former deals with the privileges of Parliament while the latter deals with the privileges of state legislatures although, in terms of the substantive content, the privileges they contemplate are identical.

Legislative privileges apply not just to members of legislatures but also to persons who have the right to speak in, and otherwise to take part in the proceedings of a legislature or any of its committees. The two Articles begin by explicitly stating that subject to the Constitution and the procedures of the House, there shall be freedom of speech within the House. No member of a legislature is liable to any judicial proceedings for anything he says or any vote he casts in the House or at any of its committees. Additionally, the Articles state: ‘…no person shall be so liable in respect of the publication’ of any report, paper, votes or proceedings if it is by or under the authority of House.

This is reasonably clear, and enables members of legislatures to speak freely within the house without fear of being prosecuted or sued for what they say. In the process, it ensures that speech within legislatures is not inhibited, and that all the aspects of any given issue before the legislature can be discussed in detail to attempt to achieve the best possible outcomes for the people.

Later on, however, the two Articles contain what could be considered to be a residuary clause which says that in other respects, the powers, privileges and immunities of each legislative houses, their members and committees, ‘shall be such as may from time to time be defined’ by the Houses themselves. Until they are defined, they are what they would have been before the coming into force of the 1978 law which contained the 44th amendment to the Constitution. In effect, this means that despite its having been decades since India gained its independence from the British, its understanding of legislative privileges draws directly from the British understanding of Parliamentary Privilege.

This isn’t ideal for India because the origins of parliamentary privilege in England were in no way echoed by Indian circumstances. They arose in England after the ‘Glorious Revolution’ and was first enshrined in law through the 1689 Bill of Rights, one of the documents which articulated the fight for power between the English crown and the English parliament. It stated that the ‘freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of Parliament’ thus assuring members of Parliament of freedom from interference from the Crown, and ultimately helping to establish parliamentary sovereignty.

In India, however, no legislature has ever been supreme in any sense of the word. As far as the law is concerned, it is the Constitution which is supreme. Parliamentary sovereignty simply doesn’t apply in India in the way it does in the United Kingdom, and the failure to express parliamentary privileges in statute has meant that they are not easily subject to review by the courts.

Although it is within the remit of courts to interpret laws and determine if they are constitutional and, consequently, valid, it is not easily within their power to review laws which have not been reduced to writing. The result is that vast swathes of the law relating to legislative privilege in India remain an amorphous and impenetrable mass.

And, of course, since there is limited clarity about what the law on parliamentary privilege is, there is a correspondingly large degree of uncertainty about how the law may be applied. This makes it susceptible to being used as a particularly potent tool against anyone who is critical of a legislature or its members. It is therefore important that parliamentary privileges be circumscribed and clearly laid out both so that legislatures function smoothly and so that their functioning can be scrutinised by others without the fear of being in breach of undefined legislative privileges.

Thus, all three arms of the State: legislative, executive, and judicial are protected by the law although the nature of protection is occasionally unclear, and, arguably, too wide. Nonetheless, there exist good arguments to be made in favour of not having the protections which the arms of the State enjoy be completely stripped away.

The conversation which one probably needs to engage in is how the protection accorded by the law should be defined so that it best protects the interests of the citizens of the country for whom, after all, the State is intended to function. The law, however, doesn’t always facilitate such conversations. Instead, in addition to major laws which protect the three main arms of the state, there are a plethora of other laws which limit the transparency with which various state organs and agencies function including the 1950 Army Act, the 1985 Intelligence Organisations (Restriction of Rights) Act, the 1986 National Security Guard Act, the 1957 Navy Act, the 1966 Police Forces (Restriction of Rights) Act. It is not just the speech of persons directly associated with State machinery that is limited by the law but also the speech of members of the general public.

The 1968 Civil Defence Act criminalises publishing or printing any content which is prejudicial to civil defence. And the 1923 Official Secrets Act, amongst other things, prohibits any secret official code or password or other document or information from being published or communicated to anyone if it could be useful to an enemy, or if it could affect friendly relations with foreign States or, alternatively, if it could affect the sovereignty, integrity, or security of the State.

It is easy to see why it is not ideal to have anyone associated with the State randomly speak especially if they are dealing with sensitive matters. However, this gives rise to having institutions function in an opaque environment where is it difficult to hold them to account. To an extent, this problem has been ameliorated by the legal right to information through which questions can be asked of state institutions. The right to information is not absolute though, and there are a number of grounds on which it is possible for institutions to refuse to disclose information.

Although opacity isn’t necessarily bad in and of itself, compounding the potential problems which a lack of transparency in the functioning of state organs and institutions could create is the fact that Indian law does not offer any protection worth mentioning to whistle blowers, or to the sources of the press. As such, even if it is someone seeking to highlight gross mismanagement in a state institution were to speak anonymously, it is not inconceivable that the journalists he spoke to could be compelled to reveal who their source in a court of law.

It is necessary for a line to be drawn between illegitimate speech — handing over secret codes to the enemy in wartime, for example, would clearly fall into this category —, and legitimate speech such as possibly exposing corruption within a government office. It isn’t always clear where and how the line should be drawn though especially, if to achieve a legitimate and laudable aim, it becomes necessary to disclose information which should ideally be kept confidential.

The line between what should be legal speech and what should be impermissible speech isn’t always clear-cut, and, as a society, we haven’t really engaged in a discussion about where or how the line should be drawn.

(This post is by Nandita Saikia and was first published at IN Content Law.)

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