Freedom of Speech in an Increasingly Polarised Society
This is the text of the speech delivered by Sachin Kalbag, Senior Fellow, Takshashila Institution, at St. Xavier’s College, Mumbai on August 14, 2023 at its annual pan-India fest Malhar.
In November 2012, two young women from Palghar – Shaheen Dhada and Renu Srinivasan, both aged 21 – did something that angered the local members of a political party. On Facebook, they protested the citywide shutdown that was announced as a result of the funeral of Shiv Sena founder Bal Thackeray. Shaheen felt that the forced shutdown inconvenienced citizens. Shaheen had written the post on the social media site, and Renu had Liked it.
The two women were called for questioning at the local police station at 10 pm on a Sunday, something that is not allowed under India Criminal Procedure Code. They were accompanied, rather forced, to go to the station, by angered Shiv Sena members. The police detained them until 2.45 am, again disallowed by the CrPC. They went home around 3 am, but at 7 am they were called to the station again. This time, they were arrested, and the court sent them into judicial custody, which is the legal term for jail. They got bail later.
Interestingly, Dhada had not even mentioned Thackeray’s name in her post.
The police acted because they came under pressure from the local Shiv Sena leader Bhushan Sankhe. Sankhe had called Shaheen asking her apologise for her post. She refused. So Sankhe took his team of Sena members and forced her to go to the police station under the threat of mob violence.
Both Shaheen and Renu were booked under two sections of Indian law: Section 295(A) of the Indian Penal Code, which refers to hurting religious sentiments, and Section 66 (A) of the Information Technology Act which refers to offensive messaging through a communication device. Later, the police changed the first section to 505(2) which refers to creating enmity in society.
You see, Shaheen and Renu had done something extraordinary – they had expressed an opinion. For this, they were dragged unlawfully to the police station and later arrested, only because certain people felt offended.
Shaheen and Renu are not alone. Even more draconian laws have been applied to three people who are slightly more famous than the two 21-year-old women from Palghar. You may have heard their names: Mahatma Gandhi, Bal Gangadhar Tilak and Bhagat Singh. All three freedom fighters were arrested and put to trial by the British colonisers in the early 20th century for sedition, a law under Section 124(A) of the Indian Penal Code introduced by them in the late 19th century for going after people who were demanding Independence.
Ladies and Gentlemen, sit up straight because if this figure does not shock you, nothing will. Between 2010 and 2020, 10,698 Indian citizens were booked under Section 124(A) for sedition. These are not figures off the top of my head, these are numbers quoted in annual reports by the National Crime Records Bureau and the Ministry of Home Affairs.
Of these, 65% or 6954 cases were filed after the BJP-led NDA government came to power in 2014. That is to say, Indian law enforcement authorities filed 1159 sedition cases on average every year between 2014 and 2020. Where does that leave the Congress-led UPA government between 2010 and 2014? Let’s check. Between 2010 and 2014, there were 3744 cases or 936 per year. Less than the BJP, but not far from its arch national political rival.
Why are these numbers important? To understand that, we first have to find out what Sedition is, and how Indian law defines it: Section 124(A) says that, “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
In effect, in our Republic, you cannot write, speak, or visually represent anything that criticizes the government. If you do, you are, depending on the whim of the senior inspector at the local police station or anyone who is a government supporter, likely to be booked under the Sedition law, where, theoretically at least, the fine amount is infinite, in addition to a jail term.
I emphasised the word government, because there is a difference between the word government and the word state. The government is elected by the people, and it is an agency of the state. The state is permanent, a government is temporary, just like society is permanent, but families come and go. An institution is permanent, its heads come and go.
What Indian law enforcement authorities – who are part of the State – do sometimes is that they equate criticism of the government as criticism of the state.
Here’s the thing: If we, as electors, have no right to criticize the government, then who should have this right?
A lawyer once defined the right to freedom of speech and expression thus: “Freedom of expression is the fourth pillar of democracy. This right of expression gives us a right to criticize and ask the state to function properly and work as it is obliged to. Freedom of expression gives us something more than just existence, it gives us a reason to live with dignity. It makes us a social being.”
This is enshrined in Article 19(1)(a) of the Indian Constitution. To quote the only holy book a Republic should ascribe to, Article 19(1)(a) says, “All citizens shall have the right to freedom of speech and expression.”
But then came the key amendment, which is usually referred to as Article 19(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 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.”
Remember those words: “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.”
Which of these conditions had Shaheen Dhada violated by writing about a post on a forced shutdown that inconvenienced lakhs of common citizens?
Shaheen’s case is symptomatic of how our fundamental right to freedom of speech and expression has consequences in real life, if you criticize the government, or those in power, whatever post or influence that may be.
You may be wondering what Shaheen had written that incited the Shiv Sena members so much that they wrecked her uncle Dr Abdul Ghaffar Dhada’s orthopaedic hospital and forced the police to arrest her. All that Shaheen was that when thousands of people die every day and the world moves on, why is that an entire city has come to a forced standstill for one politician. She also asked when was the last time anyone observed a two-minute silence for Bhagat Singh or Chandrashekhar Azad or Sukhdev. “Respect is earned, not given and definitely not forced,” she wrote.
After a national and international hue and cry, the charges against both Shaheen and Renu were dropped in November 2013, and the two police officers who booked them were suspended. Renu went onto study music and sound engineering, and became part of a band, while Shaheen also completed her studies and got married in 2014.
The two policemen were suspended, but what happened to the Shiv Sena members who vandalised Shaheen’s uncle’s hospital and damaged it to the tune of ₹10 lakh? Nothing.
You might well ask, why is freedom of speech and expression important, even if it is not absolute? The thing is that the right to expression is essential for our autonomy and free will, to an individual's right to self-development, and to truth seeking.
To quote another lawyer: “If citizens are to be able to rule as democracy requires, it's after all the rule of the people by the people. If citizens are to be able to rule, they must be able to communicate freely, including with those that they elect and who govern them. They must be free to criticize, question challenge, all of which requires full access to information and ideas. Freedom of expression teaches tolerance and build tolerant societies.”
It is not just that. Freedom of speech is the basis for freedom of the press in a democracy. It is about asking for accountability of the people in power that you, the citizens, have voted in. It is about questioning laws and decisions that the government makes, or the state executes. For example, in Switzerland, one of the freest countries in the world, no law is passed without the express permission of its citizens. Every three months, there is a vote on the proposed laws at the local, state and national level. Even building a bridge over a river may sometimes need people’s permission. Some may argue it slows down democracy, but well, the people have the ultimate power.
To be fair, India’s Supreme Court has, more often than not, judged in favour of free speech and expression.
What we need to be suspicious about is government — not this government or that government. Just government. We also need to be suspicious about a media that does not question government and gives it a free hand in doing what it wants.
What is the fundamental responsibility – in fact, the only responsibility – of the media in any democracy? It is to hold people accountable, to act as a check-and-balance against injustice, against unfair practices, against excesses, against morally disdainful and legally wrong acts of those in power. Or powerful people. The media should talk for you and me, as our representative, not that of people in power.
A recent example of how the media held a leading government official accountable was in the United States where every action of President Donald Trump was questioned and fact-checked. It impacted not only America, but the rest of the world.
A vigilant British media ensured that its earlier prime minister Boris Johnson did not have a free rein, was questioned for morally reprehensible actions and was finally ousted from his post by his own party.
Compare that with authoritarian regimes such as North Korea or Turkey or Russia. Can we truly say that the media in that country is free? Why go that far. In 2023, India slipped to 161 in the global rankings of the World Press Freedom Index released by Reporters Without Borders. We were ranked 150 in 2022, and 142 in 2021. In the same time, Pakistan rose from 157 to 150.
There are several reasons for this, including a flawed business model that strangles freedom and creativity.
A free media that exercises its constitutional right to free speech is fundamental to any functioning democracy. In its absence, it gives rise to a government that is authoritarian, because it has no opposition, either from its political rivals, or the checks-and-balances that the other institutions should provide. It also brooks no opposition. Anybody who opposes is either thrown in jail or bought or silenced.
Idi Amin, the infamously violent dictator of Uganda who killed thousands of his own people just so that he remains in power, once said, “I can guarantee freedom of speech, but I cannot guarantee freedom after speech.”
Ironically, technology, which was supposed to make the world closer and more open-minded has unleashed ideological monsters that have suppressed free thought. In India, a district magistrate usually issues orders to ban the internet whenever there is a threat to public order (remember Article 19(2)?). It is left to the discretion of a junior IAS officer to decide whether you and I will access our emails or not. See, there were riots before the internet was developed, and there was violence before any kind of modern technology was developed. In fact, the world-famous psychologist and linguist Steven Pinker proved through data that this era is the most peaceful in terms of violent deaths due to war.
So why is that every government in the world – democratic or otherwise – wants to control you and me? The answer is that we have allowed them to. Evil happens in the world mostly because the good keep quiet, not because there is a proliferation of bad people. As the US Supreme Court judge Ruth Bader Ginsburg once said, “A constitution, as important as it is, will mean nothing unless the people are yearning for liberty and freedom.”
It is therefore essential that all Indians yearn for liberty and freedom at all times. Democracy does not end at the voting booth, it begins there.
