Written in collaboration with PEN Canada and the International Human Rights Program at the University of Toronto, the nearly 150-page report released on May 20 provides a comprehensive overview of the laws governing free speech in the country. Going beyond this, it also suggests a new direction for the government and courts to take.
The timing of the report is spot on. If evidence was needed of India’s conflicted relationship with freedom of expression, the events of the last few months have provided enough.
In March, the Supreme Court struck down Section 66A of the Information Technology Act that threatened internet users with 3-5 years in jail for sending “grossly offensive” or “menacing” information. Last week, another apex court bench ruled that freedom of speech cannot be absolute when it came to “contemporary community standards” and could not be applied to historical figures.
Then there is the example of Delhi politics. During and after his Assembly election campaign, Arvind Kejriwal widely denounced the law against criminal defamation. On May 6, however, he issued an internal circular that asked government officials to apply that law against media houses which covered them negatively. The Supreme Court struck down this notice on May 14.
Even the Centre has gone through similar flip-flops. When the Supreme Court asked the Bharatiya Janata Party-led government for its position on Section 66A, the government defended it, saying it was a necessary check for preventing cyber crime. This was the same section the saffron party had criticised during United Progressive Alliance’s second term.
The PEN report points out that India has not submitted a single report on compliance with the International Covenant on Civil, Cultural and Political Rights since 1996. While countries tend to be tardy too with compliance reports on this covenant – the US, for instance, submitted one report seven years late, but has since kept up – the deadline for India’s fourth period report was 14 years ago, in 2001.
Why the report on India?
“As the world’s largest democracy, with more than a sixth of humanity affected by its laws and legal system, we felt that it was important to actively begin work in the region,” said Tasleem Thawar, executive director of PEN Canada and an editor of the report.
The free speech advocates have been working together since 2012 to create country reports, starting with Mexico that year. Their last report, on the Honduras, was released in January 2014.
The group chose India as their next project, Thawar said, after seeing media reports about banned books, intimidation of journalists, and citizens facing charges for online activity. This period also coincided with the creation of a second PEN India centre in Delhi.
The research period of the report began in 2013 and ended the day before the Bharatiya Janata Party was voted into power. Much has changed since and this turned out to be a challenge for the writers of the report.
“We were updating the report constantly, including after the Supreme Court ruling on Section 66A,” Thawar said. “We were also very lucky to have people like Apar Gupta, who represented the People’s Union for Civil Liberties in the case, write on these current events for the report at very short notice.”
At a time when courts and the government are rapidly amending, implementing and interpreting a large number of laws that govern freedom of expression, the report provides a lucid overview of the legal situation today and where it should ideally go.
“It has now been one year since the change in office,” said Thawar. “Though the courts, in overturning Section 66A for example, have made some improvements, recent government actions are worrying.” She pointed to the use of the Foreign Contributions Regulation Act to freeze Greenpeace India’s bank accounts that might frighten all NGOs who critique government policy. The new panel of the Central Board of Film Certification is also a concern, she said.
Case studies like these cushion the report’s wider and deeper overview of all the laws, regulatory and criminal, that are used regularly to curb freedom of expression.
Several other countries do not require jail time for regulatory offences, the report states, but in India there is very little difference between the two. Criminal laws include blasphemy, sedition, publications that “appear” to violate the Indian Penal Code, promoting enmity and speaking against national integration. On the other hand, regulatory offences govern organisations, from movie censorship to cable regulations to the monitoring of foreign contributions to prevent them from being used to critique Indian sovereignty.
The most dangerous laws, such as the Unlawful Activities (Prevention) Act, are those that are vaguely worded and can therefore be used indiscriminately to muzzle dissent, the report says.