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.)


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