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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