Guest post: Trial by Media: Violation of Right to Reputation?

[This is a guest-post by Swati Singh, 4th year Student at ILS Law College, Pune, who is also a columnist at Constitutional Renaissance Blog. This article is a part of series where the author analyses Article 19 vis-a-vis recent events.]

Introduction- What is a Media Trial?

In India, Media is regarded as the fourth pillar of democracy. The media provides the public with information by its reporting and commentary on the ongoing social and public events in the society. Media acts as a watchdog that helps create awareness and aids in formation of opinion for the laymen and helps in moulding their perception of an event. Media Trial means the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt irrespective of whatever is the verdict in the court of law. With the advent of technology in recent times, media’s presence has been ubiquitous. Media trials occur when the media houses start acting as “public courts” or “Janta Adalat” and start interfering with the proceedings of a case. Media may subtly or overtly give their verdict on a case, ignoring the crucial difference between an “accused” and a “convict” thereby disregarding the principle “innocent until proven guilty.”

Freedom of press and Indian Constitution

Freedom of press as a standalone right doesn’t exist under the Indian Constitution. However, it is implicit under Article 19 (1) (a) of the Indian Constitution which provides for freedom of speech and expression for all citizens of India. This fundamental right is enshrined in the Constitution to protect the democratic values of the country. Freedom of speech and expression freedom to express in oral or writing, one’s thoughts, opinions, ideas and beliefs. Freedom of press isn’t exclusively mentioned in the Constitution as it was made clear by Dr. B.R. Ambedkar during the Constituent Assembly debates that no special mention of the freedom of press was necessary at all as the press and an individual or a citizen were the same as far as their right of expression was concerned. 

In the case of  Romesh Thappar vs State of Madras, the Supreme Court held  that freedom of speech and that of the press lay at the foundation of a democratic society, and without free political discussions, no public education is possible, which is important for the proper functioning of the government. It was observed by Justice Patanjali Sastri in the case that the freedom of speech and expression includes propagation of ideas, and that freedom was ensured by the freedom of circulation. The Supreme Court, through various cases has made it clear that right to speech and expression clearly includes the right to publish and circulate one’s ideas, beliefs and opinions through any mode of publication (it has been discussed on this blog extensively – check here). 

In In Re: Harijai Singh and Anr. and In Re: Vijay Kumar , the Supreme Court while deciding upon the scope of the freedom of press, recognized it as “an essential prerequisite of a democratic form of government” and regarded it as “the mother of all other liberties in a democratic society”.

Right to reputation and Media Trials

Freedom of speech isn’t a sacrosanct, absolute right and is subject to reasonable restrictions. These restrictions can be for varied reasons including the grounds of right to privacy, right to reputation, contempt of court etc. Every person has the fundamental right to reputation in the same manner as they have the right to freedom of speech. Article 21 of the Indian Constitution includes the right of a person to live with dignity which also comprises the right to reputation.

Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights (ICCPR) protect the right of reputation of an individual by stating that, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Article 19 of ICCPR further emphasises this right by stating that everyone shall have the right to freedom of expression but it shall be subject to restrictions such as- respect for the right to reputation of someone. The UDHR is only a persuasive and not a legally binding instrument but India has ratified ICCPR and thus, is bound to follow the Covenant. However, no express and consequent legislation has been made in India with this regard. 

Media derives its right of publication from Article 19 (1) (a) of the Indian Constitution but when a statement harms the reputation of a person it is said to be defamation. In India, defamation is considered both a civil wrong (tort) as well as a criminal wrong (Section 499 of the Indian Penal Code). Every criminal administration, across all democratic countries, also      ensures that an accused is given a fair trial. Right to fair trial in a criminal prosecution is an implied right under Article 21 of the Indian Constitution – as a fundamental right. A media trial jeopardises that right to fair trial of the accused, forgoing the principle of natural justice as well as also violating their right to reputation. 

In R. K. Anand v. Delhi High Court (2009) 8 SCC 106, The Apex Court stated that, “―the impact of television and newspaper coverage on a person‘s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial impossible but means that regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny.”

The justice delivery system in India being so excruciatingly slow, by the time the court pronounces a verdict, the media already disparages the image of not only the accused but also their family. There have been many instances where the media has passed its own verdict before the Court itself. In the infamous Jessica Lal case, when renowned lawyer Ram Jethmalani decided to appear on behalf of the accused his morality was questioned and one of the senior editors of a news channel branded him as trying to “defend the indefensible” thereby already declaring the accused guilty. 

Conclusion

Media has increasingly become an important part of everyone’s lives. It acts as a watchdog that strives to keep the public informed, aware and vigilant. However, at times the media tries to sensationalize the news in order to grab the attention of the viewers. With the advent of 24 hour news coverage, media houses have delved into sensationalism rather than sensibility. After the augment of Television Rating Points (TRP), media houses try to attract a bigger audience and hence resort to whatever means through which they can achieve high ratings. This can lead to the media overstepping its limit and acting as a judicial institution of its own. It is difficult for the general public to not get swayed by an opinion or narrative that is being pushed relentlessly on them. Such extensive coverage may endanger the interests of the parties involved especially if a matter is sub judice

Under the existing law of Contempt of Courts Act 1971, pre-trial proceedings  are exempt from falling under the ambit of contempt. Publishing material with respect to the parties involved can affect their rights to a fair trial. Due to such lacuna, the press feels empowered to write and circulate excessive or at times, distorted facts. 

The “Press Council of India” (PCI) which is a statutory body is concerned with developing and maintaining the standards of print media. The PCI has very limited powers under the Press Council of India Act 1978. The Act only refers to print media and hasn’t been updated to also include electronic media as well. Under the Act, the PCI can only “warn, admonish or censure the newspaper, the news agency, the editor or the journalist.” A mere warning is not enough to curb a media trial and the perils that arise because of it. The PCI should be given a stronger role to ensure that the media aren’t misusing their freedom of speech. 

The trial by media has gained a renewed debate after the “Disha Ravi toolkit case.” The High Court of Delhi admonished certain Media houses to ensure that proper editorial control is exercised while disseminating information to ensure investigation is not hampered. The Media Houses were criticised for its sensationalized reporting. Similarly, after Bollywood actor Sushant Singh Rajput’s death, the accused Rhea Chakraborty had to file a plea against the unjust media trial meted towards her. Chakraborty filed an affidavit stating that ‘the constant sensationalization of the case’ had caused her ‘extreme trauma’ and an ‘infringement on her privacy.’

Thus, Media trial has become a serious issue in contemporary times. The dangers arising out of such misreporting should be addressed and if needed, the government should take concrete steps to prevent it from happening and impose penalties on media houses that partake in the same. The freedom of press is an inalienable right in a democracy but at the same time, this freedom also exposes its loopholes. Therefore, it is time that the government takes active steps in ensuring a more conscious, sensible and accountable journalism. More importantly, the media should be conscious enough to report neutrally and understand that they cannot over step their freedom of press. 

Freedom of circulation and propagation of Ideas

Propagation of ideas and circulation of information is part and parcel of democracy and it is essential, as the Supreme Court held in Sakal Papers v. Union of India, for the “proper functioning of the processes of democracy”. In this article, the author will look into Article 19(1)(a) with respect to freedom of circulation and propagation of ideas as a Fundamental Right under the Indian Constitution. The availability of various ideas in the marketplace without any interference from the State strengthens the foundations of democracy. People can only have informed debates on the issue of “great importance” when the information is readily available through various portals to the public. With this context, the author will analyse two important judgments of the Supreme Court on this point of law.

Locating the Right to Freedom of Circulation and propagation of Ideas

In Sakal Papers case, the basic issue was constitutionality of Newspaper (Price and Page) Act, 1956 and the Daily Newspaper (Price and Page) Order, 1960. The objective of these laws was to “regulate the prices charged for newspapers in relation to their pages” which was ostensibly done to “prevent unfair competition” and give “fairer opportunities” to all the other newspapers. The petitioners contended that through these laws the selling price of their newspapers will increase for their readers, if they want to retain the same number of pages as they are currently distributing, which will lead to an adverse effect on their circulation. Otherwise, if not to increase the selling price, the newspapers will have to reduce the number of pages which will infringe their right to circulate and propagate ideas. The five-judges bench of the Supreme Court noted in Paragraph 26 that,

26. A bare perusal of the Act and the Order thus makes it abundantly clear that the right of a newspaper to publish news and views and to utilise as many pages as it likes for that purpose is made to depend upon the price charged to the readers. Prior to the promulgation of the Order every newspaper was free to charge whatever price it chose, and thus had a right unhampered by State regulation to publish news and views. This liberty is obviously interfered with by the Order which provides for the maximum number of pages for the particular price charged.

The Supreme Court explicitly held in 1950 in the case of Brij Bhushan v. The State of Delhi that there is no mention of freedom of press in the Constitution, but it falls within the ambit of Article 19(1)(a)—that is freedom of speech and expression. In the Sakal Papers case, the Supreme Court while focussing on this Right under the Indian Constitution, held that “The right to propagate one’s ideas is inherent in the conception of freedom of speech and expression.” Having said this, the Court then held two other important and allied rights, that are, the propagation of ideas can be done either by word of mouth or by writing and the volume of the content published. A citizen has a right to publish whatever she pleases (matter does not matter, unless it lies within the ambit of clause 2 of Article 19) and in any amount she pleases. Any restraint placed on these rights is a violation of Article 19(1)(a). The Order and the Act of the government was held unconstitutional by the Court as they infringe the press’ right to publish their ideas and the volume of the matter they are publishing. The court said in paragraph 27 that,

It cannot be gainsaid that the impugned order seeks to place a restraint on the latter aspect of the right by prescribing a price page schedule. We may add that the fixation of a minimum price for the number of pages which a newspaper is entitled to publish is obviously not for ensuring a reasonable price to the buyers of newspapers but for expressly cutting down the volume of circulation of some newspapers by making the price so unattractively high for a class of its readers as is likely to deter it from purchasing such newspapers.”

Furthermore, the Courts must ensure that the fundamental rights are not to be interpreted narrowly and they must not be “cut down by too astute or too restricted an approach” (see LIC v. Manubhai D Shah). In Manubhai D. Shah, the Court held that a citizen has a right to propagate an idea through “the print media or any other communication channel example the radio and the television”. Circulation of ideas is very important for a healthy democracy as it enables the citizens to gather information and build opinions. The Court held in paragraph 8 that, “freedom to air one’s views is the life line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship.

In Manubhai D. Shah, the Court while building upon the freedom to propagate ideas held that a citizen also has a right to reply/rebut to a criticism levelled against the view propagated by him. Hence, any restriction on speech and expression apart from Article 19(2) on a citizen’s right is a threat to democracy. Further, the restrictions must not be interpreted so widely that it infringes upon the citizens’ right and dilutes the whole purpose.

Conclusion

Authoritarian governments use various penal laws like the draconian UAPA, Sedition (Section 124A of the Indian Penal Code), National Security Act etc., to infringe citizens freedom of speech and expression under the garb of ‘reasonable restrictions. These penal laws have stringent punishments and bail conditions that are restrictive which impedes the courts from granting bail. Although the courts have championed civil liberties despite such stringent provisions for bail, the courts have looked into the accusations more diligently and judicially. The recent ‘toolkit’ incident is a classic example to portray the government’s use of sedition laws to shut dissent and deter informed citizens from critiquing government’s policy.

Read more on democratic backsliding in India here. Here, the author discussed why there must be a push for free media and ‘citizens as watchdogs’ to put the elected executives under strict scrutiny especially under the present government.

Guest Post: The PM CARES Fund: A Political Propaganda or a Genuine Attempt?

[This is a guest post by Charvi Devprakash]

Introduction

The Prime Minister of India tweeted, “It is my appeal to my fellow Indians, kindly contribute to the PM-CARES Fund” asking all of the citizens to do their part in creating a healthier India by contributing to the newly founded PM-CARES Fund (Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund). Within a week, reports stated that the fund had managed to collect 65 billion rupees. And now, it is claimed that the fund has crossed the 100 billion dollars mark. 

Though this meant a huge achievement for the country as a whole, as aforementioned many of them began to question why there was another fund created when there already existed the Prime Minister’s National Relief Fund (PMNRF). While some questioned its constitutional validity, others mocked the opaqueness of the fund. While on one hand where some of the citizens filed cases of Right to Information against the Prime Minister, on the other, some demanded the need for the fund to be scrutinized by the Comptroller and Auditor General of India (“CAG”) as CAG is an independent body, free of the government’s influence. While the government fought the RTI petitions by calling the fund ‘not a public authority’, some companies wondered how the PM CARES Fund came under Corporate Social Responsibility (CSR), but not the CM’s COVID Fund. 

Is the PM CARES Fund constitutionally valid?

Recently, in the case of Manohar Lal Sharma v. Narender Damodaran Modi & Ors, the Supreme Court was to hear public interest litigation (“PIL”) filed by one Manohar Lal Sharma on the matter of the constitutional validity of the PM CARES Fund. A bench comprising Chief Justice S A Bobde and Justices L Nageswara Rao and MM Shantanagoudar heard the PIL against the setting up of the PM CARES Fund through video-conferencing. The SC straight away dismissed this petition, thereby indicating that the PM CARES Fund was created in accordance with the constitutional principles. The petition intended to quash down the Fund as it is claimed to have not been formed under the constitutional guidelines as mentioned under Article 266 and 267 of the Constitution of India, 1950 that deal with the Consolidated and Contingency Fund of India respectively. 

However, here are some of the reasons how the constitutional validity of the fund could be challenged on other grounds as well. One could assail the Fund by focusing on the nature of the Fund and the requirement of the auditing to be done by the CAG as it is supposed to be a public fund and not private. Time and again, successive Central Governments have created funds like the PMNRF and PM CARES Fund under the umbrella of ‘private funds’, thereby encroaching upon and depriving the Indian citizens’ Right to Information. The petition could have also challenged the validity of the fund by bringing it within the bracket of the violation of Article 14 of the Constitution of India as the PM CARES Fund demanded or rather received preferential treatment than the other NGOs or Trusts, that haven’t enjoyed such support in the past, pertaining to the exemptions received under Foreign Contribution Regulation Act, 2010 (FCRA).

The need for Transparency

India being a democracy, bestows upon all its citizens the Right to Information under Article 19 (1) of the Constitution. The right to seek information and accountability from the Government strengthens and empowers the citizens. This freedom ensures that there is a good, transparent, accountable and responsive Government. Today, due to the various decisions taken by the Government, RTI is recognised as a fundamental tool to promote openness and responsibility within the Government. It puts people in a position of entitlement and power. 

In the case of SP Gupta v. Union of India, it was held that the people had the right to know about every public act and public transaction undertaken by public functionaries. Furthermore, in the case of People’s Union for Civil Liberties v. Union of India, the judgement of SP Gupta was extended to making Right to Information an indispensable human right necessary for making governance transparent and accountable. Adding on, in the case of State of UP v. Raj Narain, Justice Mathew expressed, 

“It is not in the interest of the public to cover with a veil of secrecy the common routine business the responsibility of officials to explain and to justify their acts is the chief safeguard against oppression and corruption.” 

Where the money is being utilised? When the taxpayers diligently and responsibly donate to a particular government body, the citizens have the right to know how the due amount is being utilized. Similarly, even in the present scenario, the citizens have a right to know, to what use is the money collected being put to, irrespective of the amount donated by each individual. This is precisely where the problem arose in the PM CARES Fund: the lack of transparency

Issue of representation and domination of one political party: The ruling party was quick enough to make a statement that the CAG will not be auditing this fund and that it will be those independent auditors who are appointed by the trust that would audit the funds. However, the committee members or the decision-makers of the fund are unrepresentative. Unlike the PMNRF that comprises the Prime Minister, President and the leader of the Opposition, PM CARES Fund only comprises the ruling party members. While the Prime Minister, in his official capacity, is the ex-officio chair of the Fund, he also has the power to nominate three members as ‘ex-officio trustees’, which in this case are the Finance Minister, Defence Minister and the Minister of Home Affairs, who all are from the same ruling party, thereby making the Fund/trust completely unaccountable and unrepresentative. Despite there not being a legal mandate for the Leader of the Opposition to be a committee member in any of these funds, it has been an unwritten ‘convention’ from centuries across countries to have the opposition party members in such funds in order to encourage opposing points of view. This makes the PM CARES Fund unrepresentative. 

The requirement of auditing by CAG: A fund this unrepresentative also makes the appointment of the independent auditors biased and unfair, which once again calls for an emphasis on CAG to audit this Fund. Although the auditors have to abide by certain set legal standards, the appointment of these auditors will be biased due to the unrepresentative nature of the committee, which might give the ruling party an upper hand in making decisions that are not completely justifiable or transparent. The same can be avoided if the committee is more representative with opposing views. The PMO has also refused to make the relevant documents of the Fund public as it does not come under the ambit of a public fund’, which means it is not controlled or substantially financed by the government and so does not come under the RTI Act. It also means that it cannot be scrutinized by government auditors like the CAG. However, the nomination of the committee members of the Fund speaks otherwise, indicating that the Fund is under complete control of the Government. Therefore, all of these actions of the Government call for the pressing need for ‘Transparency’. As aforementioned, no information has been catered to the donors of this charitable fund, as the fund is considered a ‘private trust’. This called for several RTI petitions being filed against the PMO and the government. However, most of them have been dismissed by the courts and the rest have been quashed down by the trust.

The CSR conflict and Cooperative Federalism

Another issue arising out of this fund is the preferential treatment given to the PM CARES Fund over other state government funds in terms of corporate social responsibility. An intriguing aspect here is that companies cannot file their donations towards state COVID funds under their CSR, while they can only file their donations under CSR if it is towards the PM CARES Fund. Many have questioned the validity of this clause. PM CARES Fund is the only state-owned charitable fund to have been included under CSR by amending the Indian Companies Act. Despite announcing this on a later date, the application of the amendment was retrospective in nature, thereby making all the prior corporate donations eligible under CSR. 

However, this move by the government has its own repercussions. Once the PM CARES Fund was made eligible for CSR funding, many top businesses like the TATA and Reliance donated millions of rupees as donations. This meant that it could lead to a great financial crunch among many other NGOs who majorly depended on such corporate donations. In light of the same, the Rajasthan Government filed a suit questioning as to why only PM CARES and not state COVID funds were made eligible for CSR funding. The only response was that the Union Government barred CM’s Relief Fund to be entitled to CSR donations. This is a blatant violation of Article 14 as this clearly acts as Preferential treatment towards the Central Government’s fund. This might also be an attempt to destabilize the democratic governance founded on the constitutional principle of ‘cooperative federalism’ (The need for Cooperative Federalism was highlighted previously on this blog here).

Cooperative federalism is the existence of a flexible relationship between the Centre and the states where both parties work together in harmony on subjects that concern both. This particular move of the Union on the matter of PM CARES Fund has proven to go against this principle. As a democracy believing in cooperative federalism, it is of paramount importance for the Centre to treat the states as equals and consult them on subjects that are of national concern such as the pandemic. Many state governments in the country became the target of a huge financial crunch as they had neither received the State’s GST collections nor were the residents of those states donating to the CM’s Relief Fund, merely because one could avail the CSR benefit by donating to the PM CARES Fund. This move by the Union is highly condemnable as this was the time for the state governments to be more self-reliant, financially as well as decisively and less dependent on the Centre, but that didn’t seem to happen in this scenario. If cooperative federalism was adopted and respected in its truest sense, then the entire situation would have looked quite different, with more harmonious inter-state and Centre-State relations.   

Conclusion/Suggestions

Looking at all the analysis made above, it is safe to assume that the PM CARES Fund is not only opaque and arbitrary in nature, but also discriminatory. Many NGOs and State COVID funds are at stake due to the revised provision made available to the general public in light of corporate social responsibility. To resolve this issue, some of the plausible suggestions could be:

  1. This turn of events must be put under scrutiny for being violative of Article 14 – as it creates differential treatment of two different subjects which falls under the same class of subjects.
  2. Courts must encourage and allow the PILs and the RTI applications for better transparency. Strict scrutiny of this fund must be done so as to ensure that the public’s trust is restored. 
  3. There is a pressing need for more transparency in the functionality of the fund and hence needs to be made more representative by including members from the opposition and other independent sectors.
  4. Indian Companies Act must be further amended to give the state-relief funds the same position as PM CARES Fund.
  5. Since this is a public-funded initiative, PM CARES Fund needs to come under the ambit of ‘public fund’. 

Therefore, the acceptance of these suggestions will only strengthen the citizens’ belief in the judiciary and will prove the independence of the Judiciary from the Legislature and the Executive. Lastly, COVID-19, is a global pandemic, having taken millions of lives already. This is not a time to put into action the nasty political propagandas, but a time for the entire nation to stay united and fight the virus, democratically.

[The author would like to thank Chaitanya Singh and the team of Constitutional Renaissance Blog for their valuable suggestions and comments.]

Hate Speech vs Free Speech: Where is the current strongest?

[This is a post by Diksha Dadu, Contributing Member]

In this blog, I will be focusing upon the legal provisions with respect to the concept of Hate Speech by critically analyzing Indian precedents and certain foreign judgments to differentiate between discussion and the advocacy of incitement acts which are considered prejudicial to maintenance of peace and harmony. Furthermore, I will be enunciating upon an effort to find a transformative yet harmonious approach in relation to hate speech on Freedom of Expression and examining the restriction thereof, followed by the conclusion.

Introduction

“…[T]hat the law shall be certain, and that it shall be just and shall move with the times.”Lord Reid, Judge as Law Maker

The disparity in jurisprudence on hate speech has been considered as remotely distant in Indian Constitutional Law while the terrain of free speech still remains a contested field. “Hate speech is termed as the speech that carries no meaning other than the expression of hatred for some group, such as a particular race, especially in circumstances in which the communication is likely to provoke violence”, as defined by Black’s Law Dictionary. According to Article 19(1)(a), the right to freedom of speech and expression is granted to every citizen of democratic India. However, the constitution also provides for the reasonable restrictions against free speech in the interests of 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 under Article 19(2) of The Constitution of India. The 2017 Law Commission Report, No. 267 recommended the introduction of new provisions within the penal code that specifically punish incitement to violence in addition to the existing ones while examining the scope of hate speech laws in India. Moreover, free speech is considered quintessential for every democracy to work efficiently. The doctrine of free speech has evolved as a bulwark against the state’s power to regulate speech. The liberal doctrine was a measure against the undemocratic power of the state.

Thus, this gives us an inference upon the reflection and attitude of our legislature and the juncture of decision making by the judiciary towards the issue of hate speech and the real extent of its reasonable restrictions thereof.

Hate Speech: Regulations and Legal Provisions in India 

In a democratic country like India which possess diverse communities of people, castes, creed, religions and languages as its unique nature, the principle of autonomy and free speech does not malign properly and wholly. This idiosyncratic nature of our Indian structure is one of the greatest challenges before the principle of autonomy and free speech principle. There is a constant battle of opinions to ensure that this liberty is not exercised to the detriment of any individual or the disadvantaged group or section of the society. 

As per the Indian Penal Code, the concept of hate speech constitutes under Section 153A, which is the offence of promoting communal disharmony or feelings of hatred between different religious, racial, language or regional groups or castes or communities, Section 153B of the Indian Penal Code, 1860 categorizes the offence of promoting religious, racist, linguistic, community or caste hatred or incites any religious, caste or any other disharmony or enmity within India, through any speech either in written form or spoken, Section 298 also classifies the offence of uttering words with the deliberate intent to wound the religious feelings of any person, Section 505 similarly criminalizes the act of delivering speeches that incite violence. As per the Representation of the People Act, 1951, Section 123(3A) also criminalizes hate speech of candidates contesting elections. 
In 2014, a Public Interest Litigation was filed before the Supreme Court of India seeking guidelines on hate speech during elections. It observed that hate speech attempts to marginalize individuals on the basis of their membership in a group which impacts such people socially by diminishing their social standing and acceptance within society. Hate speech, the Court observed, lays the groundwork for aggravated attacks on the vulnerable communities in the future. This weakens the ability of people to participate wholly in a democracy. It was further observed that the existing laws in India were sufficient to tackle hate speeches. The root of the problem is not the absence of laws but rather a lack of their effective execution, the Court reiterated.

Analysis of Hate Speech in India: Extent of Reasonable Restriction Principle and Position of State

The issue of the validity of hate speech laws and the extent of already existing hate speech laws has always been a heated debate in India. This issue has time and again raised before the legislature, court as well as the public. Under Article 19(2), the hate speech can be curtailed on the grounds of public order, incitement to offence and security of the State. In the infamous case of Ram Manohar Lohiya v. State of Bihar, the Apex Court observed that “One has to imagine three concentric circles. Law and order represent the largest circle within which is the next circle representing public order and the smallest circle represents the security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not the security of the State.” The standard approach applied for restricting Article 19(1)(a) is the highest when imposed in the interest of the security of the State.

Further, the Supreme Court while upholding the constitutional validity of Section 295A IPC ruled that this section does not penalize every act of insult or attempt to ‘insult the religion or the religious beliefs of a class of citizens but it penalizes only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.’ It was held that if an act does not actually cause a breach of public order, its restriction ‘in the interest of public order’ will be deemed reasonable with respect to Article 19(2), since it has a much wider connotation than interest and maintenance of public order. 

In Shreya Singhal v. Union of India, the court observed that expression could only be restricted when discussion and advocacy amounted to incitement, however, when no ingredient in offence of inciting anybody to do anything which a reasonable man would then the tendency of being an immediate threat to public safety or tranquillity would diminish. Therefore, the context of speech plays a vital role in determining its legitimacy under Article 19(1)(a) of the Constitution and that our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered.

Hence, after analyzing the recent landmark decisions, it could be re-iterated that a speech protective regime has been followed in India. The main cause of action behind such a stance is the apprehension and fear of misuse of restrictive statutes by the State. Such a regime has been followed in the United States and the Courts therein are extremely cautious in restricting Article 19 of the Constitution to avoid vitriolic approaches from the public. Pluralism, tolerance, peace and non-discrimination have been termed non-derogatory values by the ECHR in ascertaining the extent of free speech allowed under the Convention.

Conclusion

Hate speech poses a complex situation against freedom of speech and expression. The constitutional approach to these challenges has been far from uniform as the boundaries between impermissible propagation of hatred and protected speech vary across jurisdictions. 

In a landmark judgment of Canada v Taylor, the constitutional validity of hate speech laws was challenged since it violated the right to freedom of speech and expression. It was held that hate and propaganda contribute little to the aspirations of Canadians or Canada in the quest for truth, the promotion of individual self‑development, or the protection and fostering of a vibrant democracy where the participation of all individuals is accepted and encouraged. The Supreme Court of Canada opined that hate speech laws are indeed a part of the global commitment to eradicate racism and communal disharmony. 

However, ‘with every right comes responsibility’; and therein, is the need for a limitation on the right to freedom of speech and expression so as to prevent the destructive and regressive effect it could have. There is a massive need to revise and amend the existing anti-discrimination legislation with respect to hate speech without curtailing the freedom of speech and expression of people. Laws should be implemented in a non-selective, non-arbitrary and transparent manner, along the lines of golden principles of the constitution which should not be used to stifle dissent or the legitimate exercise of freedom of expression. Lastly, the fight against hate speech should not be pursued in isolation but with a harmonious holistic approach. Our constitutional history must be maligned with the traditional approaches along the lines of recent development and usage of hate speech laws, especially in terms of yellow journalism these days. With excessive interference of the media into the facts and evidence of the case has led the judiciary to negatively view such journalists as ‘thought intelligentsia’, which in turn impacts the justice delivery system as well. Therefore, a harmonious balance must be drawn while dealing with such matters and reasonable restrictions must be applied and followed strictly and not liberally in our diverse democratic country.

A Conservative Amendment in a Liberal Constitution: The First Amendment

[Editorial Note: The author would like to thank Tripurdaman Singh for his book Sixteen Stormy Days: The Story of the First Amendment of the Constitution of India and Amit Varma for a wonderful discussion on his podcast Seen and the Unseen]

It was the year 1951 and the Supreme Court had passed two judgments, Brij Bhushan v. the State of Delhi and Romesh Thapar v. the State of Madras, upholding the freedom of speech and expression as guaranteed under the Article 19(1) of the Indian Constitution. It was before the First Constitutional Amendment when the Constitution was considered to be ‘fairly liberal’ as the freedoms guaranteed under Article 19 were not subject to so many restrictions as we see today. Restrictions were there in the original Constitution as well, no doubt, as they are necessary. Then, the freedoms were the rights and the restrictions were the exceptions to those rights. But what followed after these two judgments was an act of Parliament (more of Nehru’s) which turned the freedoms into (somewhat) exceptions.

The First Constitutional Amendment, 1951

It has to be kept in mind that the first amendment was discussed and passed by the provisional parliament which did not have a ‘popular mandate’. It was the provisional Parliament’s members who framed the Constitution but they were not the constituent assembly. But for Nehru, it did not make any difference, as he said in the assembly:

“Now, that Constituent Assembly which has gone into the history of India is no more; but we who sit here, or nearly all of us, still continue that tradition, that link. In fact, it is we after all, who was the Constituent Assembly and who drafted this Constitution. Then we were not supposed to be competent enough to draft the Constitution. But now, the work we did was so perfect that we are not now competent enough to touch it! That is rather an odd argument.” 

He was right somehow, they were not competent to amend the Constitution as they did not have any popular mandate and this amendment could have waited till the elections. But it was nothing, but sixty stormy days of debates, discussion and dictatorial behaviour! Before the amendment, Article 19(2) read as:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents the State from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”

It did not have any ‘reasonable restriction’ clause in it. But the restrictions were not so much. After the amendment, clause 2 of Article 19 read as follows:

“(2) 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 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 means that parliament can frame a ‘law’ which can restrict the freedom of speech and expression if that law is in furtherance of the restrictions given thereunder. Restrictions like public order or incitement to an offence are vague and can create a long-lasting chilling effect and they are, even now. Suppose, there is a rally in protest against any law passed by the state, then the state can restrict that protest and say it violates the public order, hence, citizens cannot exercise their right to speak against the government and they can invoke the draconian section 124A (Sedition) of IPC, 1860 [which is an offence under a law made by the state].

The Reasons for Amendment and the Opposing Views

In the cases of Brij Bhusan and Romesh Thapar, the government attempted to curb the freedom of the press and the right to free speech and expression. But the Court struck down that imposed restraint on civil liberties. When the question of interpretation of Article 19 came up, the Supreme Court held that if the maintenance of public, order or securing the public safety was something which did not affect the security of the State or the overthrowing of the State, then there could be no restriction on freedom of speech. The amendment was being made to overrule these judgments [hence, the words public order etc. were added], but PM Nehru said ingeniously in the assembly as he said: “We are not putting down any kind of curb or restraint. We are removing certain doubts so as to enable Parliament to function if it so chooses and when it chooses. Nothing else happens when this Bill is passed except to clarify the authority of Parliament.” These amendments have chilling effects till now. We still see so many violations of civil rights in the name of these so-called restrictions.

Nehru’s vision of freedom was more conservative (and not so liberal) as a Prime Minister than as a leader of the Congress party during the freedom struggle. According to him, the freedom of speech ‘carries with itself responsibilities and obligations’ and if they are not performed, then there would be no freedom. This goes against liberal thought.

The Parliament and the government could have dealt with the problems of public order or incitement of offence through preventive detention laws. Now, supposing there are persons who are preaching murder and who are doing, something of that character, supposing there is some newspaper which is doing something of that character and the writer is there, the individual can be secured under the Preventive Detention Act. So, if the Parliament or the Government want to prevent a person or group of persons from committing acts which they consider to be against the interests of public order, then they are already clothed with sufficient authority to do so.

The amendment does not bear any fruit, except increasing the power of the government. Another restriction which is placed is the restriction on criticism or speech on ‘friendly relations with other states’. On this Shyama Prasad Mukherjee, who I feel is a text-book example of a classic liberal during the debates, said: “I have not been able to find any precedent in any part of the civilised world whereby law under the provisions of the Constitution criticism of foreign powers is taboo.

He cast doubts on the meaning of ‘friendly relations with other states’, as he said: “we may say anything about a foreign country with the utmost friendship in our hearts but if that country misunderstands and says that it offends it or it affects our friendly relations with them, you are at once bound by the provisions of the Constitution.” If the government today passes any law in furtherance of these restrictions, then anything can be restricted and the civil liberties and freedoms will merely become exceptions.

The fears apprehended by Dr Shyama Prasad Mukherjee are now re-surfacing back in 2020 as we witness internet shutdown(s) in Kashmir using Section 144 of Criminal Procedure Code, use of draconian laws like National Security Act and Unlawful Activities Prevention Act (UAPA) to curb Freedom of Speech and Expression among other violations. We see these violations of free speech and civil liberties and the reason (not the sole reason though) behind such regressive measures is this hurried, hasty and (“unconstitutional”) First Constitutional Amendment Act. PM Nehru, despite his charismatic leadership and vision, did put the Constitution and civil liberties in danger.

In conclusion, let us revisit the prophetic warning given by Dr Mukherjee and try to draw parallels in contemporary times:

“Maybe you [Nehru] will continue for eternity, in the next generation, for generations unborn; that is quite possible. But supposing some other party comes into authority? What is the precedent you are laying down?

The fears imagined by Mukherjee in 1951 still haunts us today!

Right to Protest, Restrictions and Democracy: Supreme Court and the Chilling Effect

Recently in the case of Amit Sahni v. Union of India, the Supreme Court passed a judgment on an infructuous matter which will have a long-lasting effect on civil liberties, especially the right to protest. The judgment of the Court feels like a judgment written by the central government in furtherance of an ‘executive court’. The 3-judges bench creates a chilling effect on the free speech and expression and the right to assemble peaceably (without arms).

The matter relates to the protests being held that Shaheen Bagh (New Delhi) and it was filed in February 2020. The protestors at Shaheen Bagh were dispersed in March after the Nation-wide lockdown which, ‘usually’ lead to dismissal of the matter. The judges ignored the factual matrix present in the case and the reasons for blockade were not because of the protestors, but the administration (police) which blocked the nearby roads and public routes. The Court classifies the constitutional and peaceful protests as “encroachments or obstructions.”

What did the court say?

The Court recognised the right to protest and the right to dissent in a democracy. The Court held that the Articles 19(1) (a) and (b), “in cohesion, enable every citizen to assemble peacefully and protest against the actions or inactions of the State.” Then, the Court moves onto the “reasonable restrictions” stated under Article 19(2) and (3). The judgment looks like as if the norm is turned into an exception, and the exception is now the norm. The Court tried to balance the right to protest with the right of other citizens to commute. It must be noted that the balancing is not done by applying the principles of proportionality, but by presuming that the protests ‘always’ disturbed the smooth traffic and commute of the citizens. The Court did not accept the plea that “an indeterminable number of people can assemble whenever they choose to protest.” This creates a chilling effect on the right to protest – the court cannot sit as an executive and lay down policies. Suppose the government plans to make some amendment in the Constitution which infringes the basic structure of the Constitution, then should the citizens sit quietly and just witness the democratic backsliding or come on the streets to express their will? As Gautam Bhatia says “in today’s day, it is important to retrieve and to build constitutionalism without the Courts, even as it remains equally important to continue to engage with and in the courts.” The check on the executive power must come from the fourth branch of democracy, which is the civil societies, media and the citizens. (See the blog on Executive Aggrandizement and democratic backsliding)

The Right to Assemble Peacefully and the Right to Protest

The rights are guaranteed under clause 1 of Article 19 which are not absolute. The restrictions on those rights placed under clause 2-6 cannot be read widely, but narrowly. They are the exceptions to the rights and must be narrowly tailored. The Supreme Court in the case of Shreya Singhal v. Union of India held that “a restriction in order to be reasonable must be narrowly tailored or narrowly interpreted so as to abridge or restrict only what is absolutely necessary.” Further, even in the Constituent Assembly the fears of wider interpretation of ‘reasonable’ restrictions were evident as one of the members Mr Sahaya said:

“In the larger interests of the country, and particularly at the formative stage of the country, to give such wide powers in the hands of the State and with regard to such Fundamental rights as, freedom of speech, freedom of assembly and freedom of movement would, I believe, be harmful and result in the creation of a suffocating and stuffy atmosphere as opposed to the free air of a truly free country.”

The right to assemble peacefully is a fundamental right and an enabling right which leads to opening up of spaces and opportunities for civil societies and citizens at large to engage effectively in decision-making processes. This right help to foster increased transparency and accountability and are basic prerequisites for the ultimate goal of securing substantive enjoyment of different human rights in a constitutional democracy. The right to assemble peacefully is a vehicle which enables other socio-political-economic rights. The state can restrict the said right only by a law in the “interests of the sovereignty and integrity of India or public order”. Fearing the so-called “reasonable restriction”, one of the members of the constituent assembly said (H.J. Khandekar):

“For instance, we are given to believe that we could carry on organised agitation for the welfare of Labour, that we can make, in an organised fashion, a demand for the grant of bonus, and if necessary can assemble in public meetings to back up this demand. The truth is that the law restricting the right of holding public meetings would be enforced. Consequently in view of such a law or laws of this kind to be passed in future it may not be possible to hold any public meeting. Thus it is clear that the Government would be in a position to prevent if it so desires, any agitation by Labour for demanding bonus, since all these restrictive laws would be applicable to the workers also. I, therefore, fail to see the significance of the right of forming associations when I find that its substance is taken away by clause (4).”

The Court by giving the state the wider power to designate the area of the protest and the number of people in the protest somehow validates the fears put forth by the Hon’ble member of the Assembly. The Court also says that the protestors, exercising their right to protest, infringes the right to commute of other citizens as protests lead to traffic jams etc. This requires balancing of rights, not just a blanket assumption. According to the Special Rapporteur on the rights to freedom of peaceful assembly and of association (20 March 2019, Geneva), it was recommended that, “The State’s obligation to facilitate includes the responsibility to provide basic services, including traffic management, medical assistance and clean-up services. Organizers should not be held responsible for the provision of such services, nor should they be required to contribute to the cost of their provision.” On the choice of place and time, which the Court declined to entertain, the Rapporteur recommends that,

“The choice of the venue or location of an assembly by the organizers is an integral part of the right to freedom of peaceful assembly…… Likewise, public areas around iconic buildings are a logical place for to convey a message with regard to institutions housed in these buildings.”

If the state is to ‘choose’ the place of protest, then it will infringe the right to protest as the protests are done to create an impact on the decision-making process and are for maximum participation by the citizens. It is done to make citizens aware of the actions and inactions of the state. If the state chooses the place of protest, then it might choose a place far from the central place of attraction where those sitting in the institutions can see. Like it happened in Jaipur where the place of protest chosen by the state government was 9 kilometres away from the earlier site chosen by the protestors. The free flow of traffic should not automatically take precedence over freedom of peaceful assembly. In this regard, the Inter-American Commission on Human Rights has indicated that “the competent institutions of the State have a duty to design operating plans and procedures that will facilitate the exercise of the right of assembly … [including] rerouting pedestrian and vehicular traffic in a certain area”. Furthermore, the Special Rapporteur points to a decision of the Spanish Constitutional Court which stated that “in a democratic society, the urban space is not only an area for circulation, but also for participation.”

A protest is done in the larger public interest, it is done to exercise dissent against various policies of the state (and sometimes against the judgments of the Court). Holding a protest outside the city, or where there is no attention will ‘extinct’ the genesis of the protest and will fetch no fruits. The Supreme Court held “it has to be borne in mind that total extinction is not balancing” (see Asha Ranjan v. the State of Bihar (2017) 4 SCC 397).

The difficulties caused to the citizens exercising their ‘right to free movement’ is due to the states’ failure to take adequate and sufficient steps. If the state will take necessary actions to “ensure that such dharnas and demonstrations are held within their bounds [and the traffic is diverted, instead of closing the roads], it would have balanced the rights of protestors as well as the residents.” (Mazdoor Kisan Shakti Sangathan v. Union of India, 2017)

Instead of being a mute spectator, the state and the police authorities should have arranged routes and spaces near Shaheen Bagh for the commuters to exercise their right to ‘free movement’ instead of blaming the protestors for their own insufficiency and inadequacy. The decision of the court to provide a blanket ban on the demonstrations lead to infringement of rights of the citizens and creates a chilling effect. It is the duty of the state to balance the rights of stakeholders and the Court must only adjudicate and protect the rights of every citizen. The purpose of holding protests is that they reach concerned persons for whom these are meant and to exercise the democratic right guaranteed by the Constitution. The decision of the Court is wrong as it will lead to fresh restrictions on the right. To conclude, in the words of TM Krishna, “Unless public spaces are freely available for demonstrations, we will remain a mute democracy.

The Right to Information and Abrogation of Article 370

[This is a post by Suvechha Sarkar, Contributing Member. Her previous post on ‘disastrous effect of lockdown and abrogation of Article 370’ can be accessed here.]

Introduction

The erstwhile state of Jammu and Kashmir, one of the northern states of India, which was considered as a State until 2019 was reorganised into a Union Territory. The living conditions along with the rights of the residents of Jammu and Kashmir has been under major threat from the day of the removal of its autonomous position as a ‘state’. Apart from the violation of certain Human Rights, one of the most important fundamental rights of the Indian Citizens, to hold the administration accountable is also being infringed there. It was none other than the Right to Information which falls under Article 19(1) of the Indian Constitution.

Right to Information and the Constitution of India

The Right to Information is a part of  Article 19(1) which states that every citizen has Freedom of speech and expression. It has been a topic of hot debate whether or not the Right to Information falls under the ‘speech and expression’. In the year 1976, in the case of the State of Uttar Pradesh v. Raj Narain, the Supreme Court stated in its judgement that it is not possible for people to express or speak up if they do not know about what is happening around them properly and thus it falls under the provisions of Article 19. (further, refer to S.P. Gupta v. Union of India) Though there were no particular provisions in the Constitution stating it as the Fundamental Right, on the 13th of October, 2005, the Right to Information Act was brought into effect.

To illustrate the Act, if we ever go to a government office and ask for the information of their working, they would certainly not provide us with it, and would rather ask one to see their way out. If we want to exercise our right to information, then the right needs to be laid down in the law (RTI Act). After the introduction of the RTI Act, the citizens can claim the information legally, even with the help of the judiciary (in an appeal if the appellate authority rejects to provide the asked information). Before the RTI Act was introduced, many other states had by then passed the Act. The states were namely: Jammu and Kashmir, Delhi, Rajasthan, Madhya Pradesh, Maharashtra, Karnataka, Tamil Nadu, Assam and Goa.

The rights which were listed under the Acts mainly consisted of:

  1. Right to Information
  2. Seek any kind of information from the government bodies
  3. Receive copies of governmental documents
  4. Do an inspection of the works done by the government.

The Jammu Kashmir Right to Information Act, 2009

The first Right to Information Act (State Act) was enacted on 7th January 2004 in Jammu and Kashmir. The main focus of the Act was to gain information from the government alongside the Government records. This Act was repealed and replaced further by the Right to Information Act of 2008 and finally by the Jammu and Kashmir Act of 2009. The 2009 RTI Act of Jammu and Kashmir fell under the election campaigns of Omar Abdullah. After he came to power, a draft of the Act was introduced and the Bill was finally passed on 12th March.

The Act  stated as undermentioned:

6. Request for obtaining information. – (1) A person, who desires to obtain any information under the Act, shall make a request in writing or through electronic means in English, Urdu or Hindi accompanying such fee as may be prescribed, to –

(a) the Public Information Officer of the concerned public authority;

(b) the Assistant Public Information Officer, specifying the particulars of the information sought by him or her.”

The Right to Information Act of 2005 by the Central Government was not applicable to the state of Jammu and Kashmir. The state’s Act ultimately provided the activists, civil society groups and the advocates of transparency and accountability with RTI 2009. The then Jammu and Kashmir Government had taken this as a part of their electoral promise. Information could be sought by the residents of the state in the form of large size paper copies, floppy disks, compact discs and many more, by paying a certain amount of fees. This was how the Right to Information Act was being brought to use in the erstwhile state of Jammu and Kashmir.

Abrogation of Article 370 and effect on RTI

The state RTI Act clearly states that a person who desires any kind of information as listed under the Act, he or she can seek for the following by the means of internet (‘through the electronic mode’) or in written form. Prior to the abrogation of Article 370 on 5th August, curfew under Section 144 of the Indian Penal Code (with essential services cut down), was being imposed in various parts of the state, especially in the Kashmir Valley. It was after this situation that many of the Indian Media started complaining that they were unable to receive any information from the Kashmir Valley despite their several reasonable attempts as the internet services were completely stopped in the valley except in the government working offices for carrying out their respective tasks.

The Committee to Protect Journalists (CPJ) informed that one of the local journalists, who was also an editor of a news website-The Kashmiriyat Walla, was arrested by the Kashmiri Police under no specific charges. The Press release was completely stopped and there were various other instances where editors of various newspapers were being arrested without unspecific charges and put under unlawful detention. However, the news channel Indian Times Now stated that their channel did not find much of a restriction, which is really surprising as other news channels and individuals were totally cut off from the valley. Several other Indian Media Reporters, outside Kashmir, claimed that they were unable to get any information from the Muslim majority areas in Kashmir except for a few blocks (as reported by Reuters here).

The curtailment of the freedom of speech and expression by the government and thus taking away the right to get information from the residents of the state has led to the ‘questioning of the idea of democracy’ in the Indian Constitution because the Right to Information is inherently mentioned in the text of Article 19(1)(a) of the Indian Constitution (see Swapnil Tripathy v. Supreme Court of India and Anuradha Bhasin v. Union of India) and the violation of which would obviously make the citizens question it. Many appeals and complaints were being filed not only before the judiciary but also before the State Information Commission but there were no fruits.

Conclusion

The Right to Information has been recognized by the judiciary as a fundamental right under the Freedom of Speech and Expression. In the age where the whole world is solely dependent on the information from the media, its value can be easily associated with the socio-cultural, economic and political development of a country like India. The Right to information is important because it is at present the basis of the development. The right to know something is also closely related to the Right to Education as stated under the Article 21-A of the Indian Constitution. Thus, the following right should be attributed to every citizen as it is a part of personal liberty and it is essential to form an informed opinion. The access to information should be equated and kept into account that it is guaranteed and treated as a norm (and not an exception). As in the case of Jammu and Kashmir, the rest of the country should raise their voice and every ounce of information must be circulated thoroughly so that the drastic condition of the residents comes into notice of the whole world. For it is always said, “unity is the strength of India”. The Right to Information should aim at providing transparency of the administration as well as public life.