The Supreme court on Tuesday granted interim protection to former BJP spokesperson Nupur Sharma. The court directed that no coercive steps be taken against her in the multiple FIRs registered in different states, over her remarks on Prophet Mohammed during a TV debate. The court also said that the same protection will be available for any FIRs registered in the future in respect to the same telecast. The top court essentially granted her the same protection which she was seeking earlier.Continue reading “Nupur Sharma gets relief from SC: Notes on clubbing on FIRs and TT Anthony Case”
Holding Sedition Law unconstitutional is not enough: Section 124A
A few months back, most of the national newspapers and twitter-feeds were filled with ‘positivity and praises of the Apex Court’ after the comments passed by the Hon’ble Supreme Court (CJI Ramana, Bopanna, and Roy JJ) in a hearing in which the colonial-era sedition law (section 124A of the Indian Penal Code) was under challenge. The bench of three judges expressed concerns about the ‘misuse’ and ‘lack of accountability of the executives’ under the law. The Court also questioned Attorney General KK Venugopal and asked him (as reported by the Indian Express), “It’s a colonial law. It was meant to suppress the freedom movement. The same law was used by the British to silence Mahatma Gandhi, Tilak, etc. Still, is it necessary after 75 years of independence?”Continue reading “Holding Sedition Law unconstitutional is not enough: Section 124A”
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.
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.
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.
“…[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.
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.
Marital Rape in India: The Public/Private Dichotomy
[This is a post by Panya Mathur, Contributing Member]
[Editorial Note: Constitutional Renaissance Blog would like to thank Ms Bansari Kamdar for having an insightful discussion on ‘Marital Rape Laws’ in India. Reach out to Ms Kamdar here.]
In India, there exists a complex conundrum in relation to the vast number of issues surrounding the criminalisation of marital rape. There has been a great measure of sanctity involved with marriage. Marriage is seen as a sacrament, a union of two souls, who will remain in complete exclusivity to one another for all purposes in their lifetime. This can be proved by the existence of personal laws in the country. For instance, the institution of marriage in the Hindu community occupies a prime role in the social construct of a Hindu. The concept of consent in the sexual relationship in a marriage is dicey and difficult to navigate. A marriage rests on the concepts of a moral cement that produces ‘two-in-one-ship’.
The exception to Section 375 of the Indian Penal Code, 1860 (for brevity IPC) states as follows:
“Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
And the Section 376B of the Indian Penal Code reads as follows:
“Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine.”
The notion of the Marital Rape exception can be traced as far back as 1736 when Sir Matthew Hales declared that ‘the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which cannot retract.’
The horrors of Harvender Kaur
In the case of Harvender Kaur v. Harmender Singh Choudhary, the Court did not hesitate to opine that “the introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a china shop and that neither Article 21 nor Article 14 had any place in the privacy of the home. In a sensitive sphere which is at once most intimate and delicate, the introduction of the cold principles of constitutional law will have the effect of weakening the marriage bond”. In the case of Smt. Saroja Rani vs. Sudarshan Kumar Chadha, the bench judge explicitly agrees to the judgement given in the Harvinder Kaur Case, hoisting the requirement of the existence of a private sphere wherein the law does not seek a stance, in order to preserve the moral fabric and sanctity of the society.
However, what has been conveniently ignored by the Hon’ble Court is that in both conditions of rape and marital rape the primary definition of rape remains a constant that is sexual penetration or intercourse wherein there exists a lack of consent. Therefore, to prove that the crime of rape has occurred, it is essential to prove the absence of unequivocal consent. Moreover, the burden to prove this absence of consent usually rests on the victim; however, in certain cases such as that in the case of minors, it is presumed that consent does not exist due to the presumption created in law that such minors are incapable of providing consent to any sexual acts. Similarly, in the case where the victim and perpetrator are in a marital relationship, there is a presumption of consent on the part of the wife even when such equivocal consent required by Section 375 is not present. The same can be proved by the mere existence of the exception to Section 375 of I P C. Moreover, the State has selectively penetrated into this marital sphere by enacting legislation that deals with the violence of women in matrimonial homes. PWDVA, 2005 and Section 498A of the IPC provides a remedy for women who are victims of forms of abuse in the marital sphere. Hence, to empower women and protect them from violence in a domestic relationship, the State should rightfully criminalize marital rape break down the public/private dichotomy. The Supreme Court in the case of Independent Thought v. Union of India, partly struck down a part of the exception clause in section 375 citing it to be in violation of the Protection of Children from Sexual Offences Act, 2012 and in violation of a child’s fundamental rights. The court notes that marriage cannot be the sole reason for any reasonable differentiation for girls between the ages of 15-18 years. In doing so the court explicitly made note of the fact that marriage cannot be reasonable classification. Even though the court keenly observed that the judgment did not speak of adult marital rape it is important to note that the court held a woman’s right cannot be subservient to her personal rights simply on basis of marriage.
In the case of State of Tamil Nadu vs. K. Shyam Sundar, the Court has held that whenever there is express arbitrariness that exists in law or State action, irrespective of whether it was legislative or not, Article 14 immediately springs into action, and the said action is struck down. Moreover, the term ‘arbitrary’ means an act that has been done in a manner that is unreasonable, and has been done at pleasure and has been done in a capricious manner without any determining principle, not founded on the nature of things, is non-rational and does not have a standard functioning principle. In order to find out that an act is arbitrary, there must be proof of ‘substantive unreasonableness’ and in the said circumstance, the test of reasonable differentia has not been complied with, because the purpose of criminal laws prohibiting rape or indeed any kind of physical violence or unwanted touching is to maintain a person’s bodily integrity.
However, it must be noted that there are numerous other legislations that protect the rights of married women which have been provided by the Legislature. One cannot look at the exception to rape in isolation, and state that the rights of married women have been deprived. The overall position is that the husband can still be liable for domestic violence or cruelty under the IPC and other specific legislation. Spousal rape should be viewed as an abuse of the marriage relationship, with some protection being deemed necessary for the abused spouse. The State provides protection for the same under the Protection of Women from Domestic Violence Act, 2005 as well as the Section 498A of Indian Penal Code. Moreover, the marital sphere does not rest on the pillars of contracts sealed with permanent terms and conditions that must be maintained to continue the relationship. Neither does the concept of marriage exist on the tenets of Constitutional Law to enforce inalienable rights into a relationship of such sanctity. Thus, it can be concluded that there exists a lack of protection that exists when it comes to the rights of married women in the country. And this lacunae in the law should either be resolved by removing the exception 2 of Section 375 of the Indian Penal Code, that excludes married women from the purview of its protection, or by extending the purview of Section 498A and other such laws.