Free to speak?

The Supreme Court in a recent case relating to the conflict between two TV channels and the Andhra Pradesh government had cautioned that there is a need to define the limits of sedition laws. It has decried the tendency of indiscriminate use of the law against journalists and citizens for airing their grievances about the government's Covid management. In this regard, the Court observed that the ambit and parameters of sections 124A, 153A and 505 of the Indian Penal Code require fresh interpretation. In an earlier order, the Court had told the states to refrain from penal action against the critics of Covid management measures.

These judgements point towards the larger issue of freedom of speech and expression. The Court's intervention evokes contemplation whether Indians truly have the right to freedom of speech and expression, as envisaged in the Constitution, or is it just a sham. Are the governments really serious about upholding the Constitutional values or are they merely concerned with image-building?

Law relating to sedition is provided in the Indian Penal Code under section 124A that defines it as an offence committed when "any person 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". Punishment for sedition varies from imprisonment up to three years to life sentence, and also fine.

This section uses vague terms that are subject to different interpretations and smacks of loose drafting that can be easily misused.

The colonial-era law was initially aimed to tackle the rising nationalism among Indians. However, in free India, to have sedition law in the form in which it exists today is nothing but retrograde and serves to stifle the voices of dissent. It runs contrary to the spirit of constitutionalism and is unsuited to the modern-day civil society based on the highest values of individual rights and freedoms. Interestingly, Britain itself has abolished the law.

The Law Commission of India, in a recent consultation paper on the sedition, rationally suggested invoking 124A only to criminalise acts committed with the intention to disrupt public order or to overthrow the government with violence and illegal means. Even the Supreme Court, in Kedar Nath v. Bihar case, while upholding sedition law as important to protect the state, had held that "a person could be prosecuted for sedition only if his acts caused incitement to violence with intention or tendency to create public disorder or cause disturbance of public peace".

There has been an increasing tendency to suppress dissent made by newspapers and channels through the sedition law. Instances of misuse of this law are corroborated by the NCRB data that shows that between 2016 and 2019, the number of cases filed under section 124-A of IPC increased by 160 per cent while the rate of conviction dropped to 3.3 per cent in 2019 from 33.3 per cent in 2016. The data is clearly indicative of clamping the law upon the dissidents without strong reason or evidence.

The freedom of speech is inextricably linked with rule of law, which entails that the State shall not use arbitrary power in suppressing freedom of speech unnecessarily. Taking the constitutional spirit into account, the protection and preservation of freedom of speech is a duty of the government as is ultimately in the interest of the country. It is obvious that the progress and growth of a state requires that people are encouraged to speak and express themselves as this gives rise to newer thoughts and ideas and paves the way for creativity and innovation.

It is true that the freedom of speech, like other fundamental rights, is not absolute and is subject to reasonable restrictions. It should not amount to defamation, incitement to an offence, problem of public order, and must not pose threat to the sovereignty of the state or to friendly relations with other nations. The speech is subject to other restrictions also such as contempt of court and sedition. However, the restrictions do not mean suppression of the speech on flimsy grounds. The constitutional scheme clearly indicates that speech can be curtailed only when it falls into any of the reasonable restrictions, and not otherwise.

Fair and impartial criticism is essential for the progress and growth of a democratic country. One is compelled to ask the question: Do governments entertain fair criticism and provide an atmosphere where everyone feels confident and comfortable in expressing their views? Is fair criticism truly allowed and encouraged in this country?

Here, it would be pertinent to have a look at the view of the renowned jurist, Lord Denning, who said: "Freedom of discussion is the keystone of our political liberty." He continues, "Public opinion cannot be instructed, nor it can be ascertained unless there is freedom of discussion; and freedom of discussion involves, of course, freedom to criticise the government". However, governments are very sensitive to criticism. The reason is that they are ultimately dependent for their power on the support of public opinion; and if the confidence of the people in them is lost by justifiable criticism, their position is rendered insecure and their chances of winning the next election are lessened. The government can of course object to unjustifiable criticism, but who is to judge whether the criticism is justifiable or not? The government which is criticised must not be allowed to determine whether the criticism is justifiable or not. The people themselves must judge; and they can only do so if there is freedom of discussion.

Thus, it is advisable that questioning the ruling establishment must be treated as a sacred and sacrosanct part of governance irrespective of political or social ideology or party affiliations. Dissent and questioning should be encouraged and welcomed and must become part of political and social culture.

India is a party to the human rights covenants and is obliged to abide by their standards, misuse of sedition law and its arbitrary exercise are inconsistent with India's international commitments.

Views expressed are personal