The elusive right to free speech and expression

Ayushman Jamwal

Growing up in India, I was always curious about life across the border in Pakistan and China. It baffled me how our education system and popular culture freely reflected, and almost celebrated the West, thousands of miles away but was intellectually alienated from our neighbours. Be it school, the news media or interactions with my family, there was a knowledge deficit about the social-political culture of India’s two most prominent neighbours.

My curiosity was quelled while studying in the UK where I freely interacted with students from Pakistan and China. I realised that both nations suffer from a culture of information control. Since its inception, China has explicitly cracked down on free speech, censoring the press, television and regulating the web.

Even though Pakistan for the first time has enjoyed an almost complete term of democratic rule and a thriving media culture, both are directed by a legacy of military rule and elements of Sharia law, namely – the blasphemy law, enforced not only by the state but extremists who believe they are doing a service to ‘God’.

While my generation in those countries aspires for a right to free speech and expression, I felt very proud and fortunate that my country enjoys a Constitution that not only guarantees an Indian citizen that freedom, but allocates the duty to exercise it to defend the moral integrity of the nation. The law under Article 19 clause 1 sub-clause (a) states,

“All citizens have the right to freedom of speech and expression”

Clause 2 argues,

“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

This right amongst others is a cherished legacy of the architects of India. It represents the realization of a universal human aspiration for freedom, equality and liberty which our freedom fighters and thousands before them around the world have fought and died for. Yet, the past few months have shown how such a universal right can fall prey to the medieval nature of politics in India.

Till this day, The Satanic Verses, a book allegedly critical of Islam, is banned in India due to the outrage of Muslim interest groups. Its author Salman Rushdie was not allowed to attend the Jaipur literature festival in January due to ‘security reasons’.

A K Ramanujan

This month, an essay by scholar AK Ramanujan titled 300 Ramayanas was removed from the Delhi university history curriculum. The essay positively highlights how the virtuous story of the Ramayana has been retold and modified in several languages around the world. The essay has been attracting the indignation of right wing Hindu activists.

In fact, in 2008, members of the BJP-affiliated Akhil Bharatiya Vidyarthi Parishad barged into the Delhi University history department to protest the teaching of the essay and vandalised the place.

In West Bengal, a Jadavpur University professor, Ambikesh Mahapatra created a cartoon which described the Chief Minister Mamata Banerjee conspiring with party member Mukul Roy to oust former Railway Minister Dinesh Trivedi. Even though people across the country knew the cartoon depicted the truth, Mahapatra was jailed and allegedly harassed by Mamata Banerjee’s party workers.

In other cases, exercising the right to free speech and expression when criticising the state has got people slapped with sedition charges and censorship. Ashwin Kumar’s documentary Inshallah, Kashmir was banned by the Central Board of Film Certification. The documentary chronicles the human rights violations by the Indian Army in Kashmir through interviews of civilians and suspected militants.

Inshallah, Kashmir poster

The move by the CBFC is indicative of the government’s fear of transparency in the Kashmir issue. With the current narrative dominated by – the Indian government’s ‘peace keeping role’ and ‘militancy from Pakistan’, the government seems to be intolerant of any negative coverage.

Dr. Binayak Sen

In another case, in December 2010, a lower court in Chhattisgarh convicted and sentenced Dr Binayak Sen, a vocal critic of the state government’s counter-insurgency policies against Maoists, to life in prison for sedition.

India’s sedition law enshrined in section 124A of the Penal Code, prohibits any words either spoken or written, or any signs or visible representation that can cause “hatred or contempt, or excites or attempts to excite disaffection,” toward the government.

However, in 1962, a landmark ruling in the Kedar Nath Singh vs State of Bihar case, the Supreme Court ruled that unless the accused incited violence by their speech or action, it would no longer constitute sedition as it would otherwise violate the right to freedom of speech.

The court argued: “[C]riticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order.” India has also ratified The International Covenant on Civil and Political Rights in 1979 which prohibits restrictions on freedom of expression on national security grounds unless – they are provided by law, strictly construed, and proportionate to address a legitimate threat.

Dr Sen took his case to the Supreme Court and on April 15, 2011, he was granted bail. The bench observed that, “We are a democratic country. He may be a sympathiser (of Naxalites) but it did not make him guilty of sedition. He is a sympathiser. Nothing beyond that.” It also added, “We are concerned with the implementation of the judgment as even no case of sedition is made out.”

Given the diversity of India, it is inevitable that politics will be based along cultural and communal lines. Unfortunately, such politics are perpetuated through poverty, lack of education and gansterism. This, I believe, leads to ‘cattle class’ politics where an ideology or sentiment is declared unquestionable, and radically enforced through both state and non-state actors. It’s a shame that speech and expression can be banned through such pressure politics and not be subject to intellectual debate, discussion and most importantly, the rule of law. Political parties fear and find opportunity in such protest. There is an overall aim to maintain vote banks and so on particular issues, major parties can contravene social freedoms to avoid the wrath of sizable communities while at the same time, appease their flaring anger to gain favour. Yet, why is the citizenry quite? Why are the media with all their strength and influence quite? Don’t both enjoy and thrive on the universal freedom of expression? The long-term effect of an apathetic stance is that communal actors get more emboldened to politicise cases and trample on the freedoms guaranteed by the Indian Constitution.

Politics along communal lines

It is also unfortunate yet true, that in this country, both history and irresponsible leadership have created and perpetuated anti-nationalist sentiments. From Kashmir, to the northeast to the Red corridor in central India, groups have, to a great extent, been driven to fight for political rights, autonomy and even independence. These are politically potent and complicated issues. Such sentiments are not born of malice, but long term social, political and economic disengagement. Can’t Indian citizens sympathize with such sentiment? Can’t they criticise the excesses of the state? Why is it considered a right course of action to silence such views? Why doesn’t the political class address the sense of disengagement in these regions to counter anti-nationalist sentiment and in so doing tackle participation in armed insurgencies?

Anti-India expression in Kashmir

I have heard the argument many times from the state that such voices are suppressed because they are provocative and allow the spread of anti-nationalist opinions. The argument is nothing short of India waving a white flag to those opinions; it is an abuse to those who wish for an amicable solution; a ridicule of the intellectual integrity of the Indian citizenry, and a deviance from our democratic and libertarian heritage. It is very simple – gagging free speech and loosely imposing sedition is unconstitutional, and dictatorial by nature.

A famous quote by French philosopher Voltaire

Any such cases cannot be tolerated. Every Indian must confidently believe that they are promised the right to free speech. It is an essential right enshrined in a Constitution which political parties are charged to uphold. While we must cherish the right, they must respect it. If the state tramples on the principles of the Constitution, we citizens must invoke its articles; mobilize the power of collective citizenry by exercising our right to free speech, protest and most importantly, our vote. The political class is dependent on the sentiments of citizens. As democracy is not perfect, we the citizens of India must be the true defenders of the Constitution.