Freedom of expression

Twelve laws that make freedom of expression in literature, cinema and art difficult in India

A telling excerpt from a PEN Canada and University of Toronto report.

The Indian Penal Code offers would-be censors a wide range of potential offences, many of which do not require malevolent intention on the part of the communicator. If you disagree with something that can be said to promote “enmity,” jeopardise “national integration,” “maliciously” insult religion, or foster “enmity between groups,” it is not difficult to invoke censorship.

Restrictive Legislation

The vague and overbroad phrasing of several sections of the Indian Penal Code and the Code of Criminal Procedure can be used to restrict freedom of expression, not only by governments, but by almost anyone who wishes to silence another. These include:

Section 95 of the CCP, which empowers state governments to seize and prohibit publications that “appear” to violate six discrete sections of the IPC. Although explicit grounds must be given for a forfeiture declaration, the burden of proof for underlying offences does not even rise to a balance of probabilities in court.

Section 124A of the IPC, which criminalises sedition. Throughout India’s history this overbroad provision has been used to silence public figures, including Mahatma Gandhi. More recently it has been used to justify the harassment of several thousand protesters at a nuclear site, a situation that prompted a formal inquiry from three UN Special Rapporteurs.

Section 153A of the IPC, which attempts to preserve “harmony” between a variety of enumerated groups by barring speech and several other acts. In January 2015, a BJP Minister was charged under s.153A for referring to a Minister in Uttar Pradesh as a “terrorist” – the complainant (a member of the public) felt that the statement hurt the feelings of the Muslim community. Similar charges were brought later in the month against a politician who criticised one of his opponents for doing nothing for his constituents “apart from procuring a new fleet of vehicles for the police and changing the colour of the vehicles in the convoy.” The opposing party found the statements “objectionable” and argued they “could affect peace and tranquility.”

Obscenity, Blasphemy, and the Control of Religious and Political Narratives

India’s obscenity laws side with the offended party and are easily leveraged by aggrieved groups or individuals.
In 2012, when the television regulator imposed a 10-day ban on Comedy Central for broadcasting a risqué skit, the Delhi High Court questioned neither the constitutionality of the Act, nor the penalty imposed. Obscenity laws have also been used to censor an actress whose opinions on pre-marital sex were published in a magazine. In the latter case one complainant only had second-hand knowledge of the alleged offence.

Blasphemy, which is criminalised by s.295A of the IPC, is defined as expression that is “intended to outrage religious feelings of any class by insulting its religion or religious beliefs.” In 2007, charges were successfully laid against the author of a book that dealt with the purported “political world invasion by Muslims.” It took three years before the High Court heard the application to remove the forfeiture – which was subsequently upheld.

The laws have also been used to police religious narratives. In February 2014 University of Chicago professor Wendy Doniger’s book The Hindus: An Alternative History was removed from bookstores after criticism from bloggers who believed it attacked Hinduism and sexualised Hindus, and a formal complaint by a member of a far-right conservative Hindu organisation. The book’s publisher noted that s.295A “will make it increasingly difficult for any Indian publisher to uphold international standards of free expression without deliberately placing itself outside the law.” Weeks later a different publisher put on hold the re-printing of another of Doniger’s books, On Hinduism, until it was reviewed by independent experts, in response to a charge by the same group.

Section 499, which criminalises defamation, can be used to secure a conviction without proof that actual harm has occurred – the intent or knowledge that harm would likely result is sufficient. Predictably, this provision has been used to silence political speech. In May 2014, the IPC’s public mischief provisions (s. 505) were used to arrest a Bangalore student who sent an allegedly offensive WhatsApp message about Prime Minister Modi.

Regulatory Constraints

India’s regulatory provisions may be used with more subtlety, but their impact on legitimate criticism of the government is no less significant. The penalties for regulatory offences are so steep, including imprisonment, that for all practical purposes they are just as threatening as criminal prosecutions.

The Cable Television Network (Regulation) Act, 1995 and the associated Cable Television Network Rules permit sanctions for a broadcaster who “offends against good taste or decency”, voices “criticism of friendly countries” or “aspersions against the integrity of the President and judiciary”. Since the rules are not enforced by an independent body, the High Court of Delhi has correctly described this situation as “anathema in a democratic setup inasmuch as it would put broadcast under the direct control of the state.”

The Unlawful Activities (Prevention) Act, 1967 has been used to prosecute a woman found with “Maoist leaflets,” even though, in a separate case, the High Court of Bombay held that the possession of propaganda from a banned organisation was not sufficient proof of membership. Local human rights groups report that the Act has been used with “fabricated evidence and false charges” to detain and silence peaceful activists.

The Foreign Contribution (Regulation) Act, 2010 has been used to lodge complaints against small NGOs who do not toe the party line. “I’m quite conservative,” said the Executive Director of one NGO interviewed for this report, “because I don’t want the organisation to be shut down. We can’t be seen as influencing public policy through public campaigns.” The NGO avoids, or downplays, discussion of religious issues and human rights reporting from certain disputed regions in the northeast of India. In April 2015, the Ministry of Home Affairs used the Act to suspend Greenpeace’s registration in India, observing that they were adversely affecting the national interest.

The Cinematograph Act, 1952 and its associated regulations empower the Central Board of Film Certification to censor parts of films or to ban them outright, not only for “decency or morality” but ostensibly to maintain public order and prevent crime. But even when films are approved by the Board, the threat of violence at screenings and the state’s inability, or refusal, to protect filmmakers, often combine to exert a chilling effect. As this report was being prepared, the Board was deliberating over the certification of two controversial films.

The Contempt of Court Act, 1971 punishes ‘criminal contempt’ including expression that scandalises or ‘tarnishes’ the image of the court. A former Supreme Court Justice has called the law a “great silencer,” which has been used to suppress public discussion of questionable judicial conduct. Excesses include contempt cases lodged against policemen “who dare to hold up judges’ cars while controlling the flow of traffic,” and a judge who threatened to fine a railway official in contempt for not doing as he asked.

The Information Technology Act, 2000 was enacted to promote e-commerce, e-government, and to amend criminal and evidence law to take account of electronic transactions. But many provisions of the act are troublesome. Section 66A – which was struck down in the Supreme Court of India’s landmark 24 March 2015 decision – was used to lay charges against a shipbuilder whose Facebook post criticised the prime minister. Police in Maharashtra have reportedly used the provision against individuals who “liked” allegedly objectionable Facebook posts about local politicians. In an interview for this report a retired judge described the breadth of the provision as “legislative carpet bombing.”

Section 69 of the ITA, which remains in force, authorises mass surveillance and permits the authorities to “intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource.” The resulting Central Monitoring System, a wide-ranging surveillance program, raises concerns about digital censorship and surveillance.

Excerpted with permission from Imposing Silence: The Use of India's Laws to Suppress Free SpeechRead the full report hereImposing Silence is the result of a joint research project by the International Human Rights Program (IHRP) at the University of Toronto, Faculty of Law; PEN Canada, the Canadian Centre of PEN International, PEN International and with special thanks to PEN Delhi members.

We welcome your comments at letters@scroll.in.
Sponsored Content BY 

How sustainable farming practices can secure India's food for the future

India is home to 15% of the world’s undernourished population.

Food security is a pressing problem in India and in the world. According to the Food and Agriculture Organization of the UN (FAO), it is estimated that over 190 million people go hungry every day in the country.

Evidence for India’s food challenge can be found in the fact that the yield per hectare of rice, one of India’s principal crops, is 2177 kgs per hectare, lagging behind countries such as China and Brazil that have yield rates of 4263 kgs/hectare and 3265 kgs/hectare respectively. The cereal yield per hectare in the country is also 2,981 kgs per hectare, lagging far behind countries such as China, Japan and the US.

The slow growth of agricultural production in India can be attributed to an inefficient rural transport system, lack of awareness about the treatment of crops, limited access to modern farming technology and the shrinking agricultural land due to urbanization. Add to that, an irregular monsoon and the fact that 63% of agricultural land is dependent on rainfall further increase the difficulties we face.

Despite these odds, there is huge potential for India to increase its agricultural productivity to meet the food requirements of its growing population.

The good news is that experience in India and other countries shows that the adoption of sustainable farming practices can increase both productivity and reduce ecological harm.

Sustainable agriculture techniques enable higher resource efficiency – they help produce greater agricultural output while using lesser land, water and energy, ensuring profitability for the farmer. These essentially include methods that, among other things, protect and enhance the crops and the soil, improve water absorption and use efficient seed treatments. While Indian farmers have traditionally followed these principles, new technology now makes them more effective.

For example, for soil enhancement, certified biodegradable mulch films are now available. A mulch film is a layer of protective material applied to soil to conserve moisture and fertility. Most mulch films used in agriculture today are made of polyethylene (PE), which has the unwanted overhead of disposal. It is a labour intensive and time-consuming process to remove the PE mulch film after usage. If not done, it affects soil quality and hence, crop yield. An independently certified biodegradable mulch film, on the other hand, is directly absorbed by the microorganisms in the soil. It conserves the soil properties, eliminates soil contamination, and saves the labor cost that comes with PE mulch films.

The other perpetual challenge for India’s farms is the availability of water. Many food crops like rice and sugarcane have a high-water requirement. In a country like India, where majority of the agricultural land is rain-fed, low rainfall years can wreak havoc for crops and cause a slew of other problems - a surge in crop prices and a reduction in access to essential food items. Again, Indian farmers have long experience in water conservation that can now be enhanced through technology.

Seeds can now be treated with enhancements that help them improve their root systems. This leads to more efficient water absorption.

In addition to soil and water management, the third big factor, better seed treatment, can also significantly improve crop health and boost productivity. These solutions include application of fungicides and insecticides that protect the seed from unwanted fungi and parasites that can damage crops or hinder growth, and increase productivity.

While sustainable agriculture through soil, water and seed management can increase crop yields, an efficient warehousing and distribution system is also necessary to ensure that the output reaches the consumers. According to a study by CIPHET, Indian government’s harvest-research body, up to 67 million tons of food get wasted every year — a quantity equivalent to that consumed by the entire state of Bihar in a year. Perishables, such as fruits and vegetables, end up rotting in store houses or during transportation due to pests, erratic weather and the lack of modern storage facilities. In fact, simply bringing down food wastage and increasing the efficiency in distribution alone can significantly help improve food security. Innovations such as special tarpaulins, that keep perishables cool during transit, and more efficient insulation solutions can reduce rotting and reduce energy usage in cold storage.

Thus, all three aspects — production, storage, and distribution — need to be optimized if India is to feed its ever-growing population.

One company working to drive increased sustainability down the entire agriculture value chain is BASF. For example, the company offers cutting edge seed treatments that protect crops from disease and provide plant health benefits such as enhanced vitality and better tolerance for stress and cold. In addition, BASF has developed a biodegradable mulch film from its ecovio® bioplastic that is certified compostable – meaning farmers can reap the benefits of better soil without risk of contamination or increased labor costs. These and more of the company’s innovations are helping farmers in India achieve higher and more sustainable yields.

Of course, products are only one part of the solution. The company also recognizes the importance of training farmers in sustainable farming practices and in the safe use of its products. To this end, BASF engaged in a widespread farmer outreach program called Samruddhi from 2007 to 2014. Their ‘Suraksha Hamesha’ (safety always) program reached over 23,000 farmers and 4,000 spray men across India in 2016 alone. In addition to training, the company also offers a ‘Sanrakshan® Kit’ to farmers that includes personal protection tools and equipment. All these efforts serve to spread awareness about the sustainable and responsible use of crop protection products – ensuring that farmers stay safe while producing good quality food.

Interested in learning more about BASF’s work in sustainable agriculture? See here.

This article was produced by the Scroll marketing team on behalf of BASF and not by the Scroll editorial team.