This article is written by Mayank Labh, a student of NALSAR, Hyderabad.
Freedom is something very dicey for on the one hand it is a liberating force for individuals and something that is of cardinal value but on the other hand it is a rationalizing force to censure the freedom and allows for manipulation by the agents of government into supporting the violation of freedom for the sake of the freedom of others. One such manipulation by the government was Section 66A of Information and Technology Act. However, the conscience of individuals does question such manipulation and imposition and no wonder that the agent who protects such conscience of individuals and who ensures that justice is done struck this draconian law as illegitimate.
But the question arises: Whether it is a sufficient step in order to have a friendly environment for exercising our fundamental right to freedom of speech and expression? Whether there is no other law that is lurking in the dusty, thick books of law of our country eager to be exercised by the “law-enforcement” agencies for the vested interested of powerful people?
Unfortunately, there are. Sorry, I might be sounding like a dooms-day activist but that’s the way it is. There are various laws which are exploited to stifle the freedom of speech and expression for the vested interest of some certain section of the society. However, it is not to suggest that the laws which are discussed below should be struck down in its entirety but it should be used in a judicious manner. These laws are discussed below:
Laws pertaining to Religion and to maintain Communal Harmony
Religion has always evoked some form of tension and will continue to do so in the future as well, if you can bear a law-student making prophecy. There are many stake-holders when it comes to religion. So, on the one hand, there are the advocates of freedom of speech and expression on the other hand there are sentiments of people belonging to a particular religion which is ready to be hurt at any time. One can understand the anxiety of the Indian government to maintain peace and harmony in a multi-religious, multi-cultural and multi-lingual nation. Still, it is beyond an iota of doubt that government over-reacted to such concerns by making such draconian laws which at best reflect the lack of imagination of the law-makers and at worse the repressive nature of the government to control its citizen. It can be easily appreciated after looking at the laws pertaining to religion.
Section 153 was amended in 1972 and was replaced with Section 153A and Section 153 B. It is so extensive that today, as the increasing court cases establish, “the right to freedom of speech and expression” has almost been nullified.
The relevant provisions of Section 153A and 153B penalise “any acts promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc.,” and committing acts “prejudicial to maintenance of harmony”. Along with this, there are IPC acts like Section 295, 295A and 298 which exclusively deals with “communal harmony”.
The problems with these sections are that in order to be accused intention and result of the respective act is necessary. It is virtually impossible to concretely identify the intention or “morality” and “public order”. How can you identify something that is so subjective in nature? It could, at best, be speculative.
For example, Naval Dhundi was arrested for his novel “Dhundhi” under Section 295A (deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs) and Section 298( Uttering words, etc., with deliberate intent to wound religious feeling). The police authority claimed that the depiction of Ganesha was “objectionable”(Seems like they have read Orwell’s 1984 very well!). However, according to Naval it was written after thorough research and in fact, several authors have appreciated its literary value.
“Affection cannot be manufactured by law” once said Gandhi. However, in order to prevent the fissiparous forces from disintegrating the nation it was thought necessary to make sedition laws.
Now, the sedition law boils down to the simple statement that spreading sedition and disaffection is crime which is very simplistic in nature in order to deal with so grave and serious issue as sedition. The scope of the law is so wide that it is often exploited by the government agency to curb such activities which are critical of the present government policies and ideologies. Again, even in this case terms like insult, offence and hate are used which are deeply subjective issues. These terms give government a handle to curb freedom of speech and expression. In fact Jawaharlal Nehru once said about this law “. “Now as far as I am concerned that particular Section is highly objectionable and obnoxious and it should have no place…in any body of laws that we might pass. The sooner we get rid of it the better”
At the outset it must be made clear that defamation in India is both a civil wrong and criminal offence. The distinction between the two is that in a civil suit people sue the other person for monetary compensation but in a criminal action the person sued has to face imprisonment up to two years. The problem lies with the criminality of defamation. Under the article 19(2) of Indian constitution the fundamental rights to freedom of speech and expression can be curtailed within a “reasonable restriction.” Such a restriction however must not be random or unbridled in nature and the impairment of freedom must be minimal. But welcome to Indian judicial system where the criminal prosecution system loves you so much that howsoever you try hard it makes sure that you get incredibly harassed, intimidated with the prospect of criminal prosecution and sundry. Law commission of India in its report has acknowledged that it violates many international norms and the two year imprisonment is way too much. Moreover, it is used by political parties and powerful corporate companies to silence the government. One such example is the defamation suit by BCCL on a Law student from NUJS, Kolkata.
Even though the law is not very clear as to the scope of the section whether it could be applied to the artistic expressions as well for it only talks about the stuffs which are “lascivious” and which should “corrupt” the mind of the person who sees, read or listen to such stuffs. However, judicial pronouncements by the apex court have made it very clear that “Where obscenity and art are mixed, art must so preponderate as to throw the obscenity into a shadow or the obscenity must be so trivial and insignificant that it can have no effect and may be overlooked.” and the test to adopt in India is that Obscenity without any social purpose should be penalised. But, still, many artistic expressions are banned under the Section 292 and 294 section i.e. the sections pertaining to “obscene” expressions.
 Section 153, Indian Penal Code.
 Section 295A, Indian Penal Code.
 Mahatma Gandhi.
 Jawaharlal Nehru.
 AIR 1965 SC 881, Ranjit D. Udeshi v. State of Maharashtra Citation