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Free Speech Needs Watchdogs

Democracy is not a Spectator Sport; it is a Participatory Event

Is free speech under threat? Can the establishment control my lawful liberty of thought, expression, belief, faith or worship? The spirit of 'reasonable' restrictions is well taken by the citizens but there is no doubt that all governments stretch the idea beyond absurdity.

At Common Cause, we believe that the citizens' rights to Justice, Liberty, Equality and Fraternity are nonnegotiable. But ideologies apart, authorities try to use every pretext -- from decency to morality and from patriotism to public order -- to restrict individual freedoms.

This is not to say that there are no challenges before free speech or that bigotry or hate speech should be condoned. Most citizens are busy coping with the pressures of daily lives; they delegate the rest to their elected representatives who are mostly unworthy of that trust. And for this reason alone, mature democracies rely on public institutions and evolve their own corpus of values enshrined in the constitutions. These values are meant to defend the weak against the tyrannies of the powerful and majoritarianism.

However, in real practice, values and institutions do better in the presence of watchdogs and public-spirited citizens. After all, democracy is not a spectator sport, it's a participatory event, to quote American author and activist Michael Moore. The civil society and activists need to jump into the arena because a tug of war is always on between institutions that strive to deepen democracy and a variety of vested interests which work to weaken it.

The mandate of Common Cause is to defend democratic values and integrity of institutions. In recent times we stood for the freedom of expression -- more specifically against the state's attempts to stifle dissent -- through our PILs concerning the freedom of expression on the Internet and misapplication of the sedition law. But our experience was mixed.

In the first instance, Common Cause filed a petition (heard along with petitions by PUCL, student activist Shreya Singhal, and others) which challenged the extremely vague and ambiguous provisions of the Information Technology Act 2000, as amended in 2008. The petition had pleaded that many cases of abuse of the Act had a chilling impact on the exercise of the fundamental rights by the people. Just to illustrate the point, a university professor in West Bengal was arrested for forwarding a cartoon perceived to be critical of the Chief Minister of the state. A young man was arrested for tweeting text disagreeable to the son of the then Finance Minister, and in yet another case, a class IX student in Uttar Pradesh was arrested for sharing a Facebook post criticising a senior minister.

The immediate backdrop of the petition was the shocking arrest of a young woman who had, in her Facebook post, questioned Mumbai's shutdown in the wake of a politician's death along with her friend who had simply "liked" it. Section 66A of the IT Act empowered the police to arrest a person (and eventually jail her for three years) for sending an email that could cause "annoyance or inconvenience" to others. The controversial Section applied equally to all forms of electronic messages including on mobile phones.

The Common Cause petition questioned if causing of annoyance or inconvenience to a person by the legitimate online free speech of another should be a ground for limiting the freedom of speech online. The petition led to the Supreme Court striking down Section 66A as unconstitutional. The bench observed that the public's right to know was directly affected by the Section. Common Cause position on the constitutionality of the case has been explained by Swapna Jha in this issue (See pages 23-25).

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However, another one of our equally significant petitions, regarding abuse of the sedition law by police officers and politicians in power, was unfortunately disposed of. The petition sought the Supreme Court's urgent intervention to address the misuse and misapplication of Section 124 A (sedition) by successive governments. This, according to the petition, led to the unfair prosecution of students, activists and intellectuals. The petition quoted National Crime Records Bureau statistics that 47 sedition cases had been registered in 9 states of India in 2014 alone.

One hardly needs to be a lawyer to see the absurdity of the misuse of sedition laws by politicians in power, cutting across party lines. Cases were slapped on a Mumbai cartoonist who used the national emblem in support of the anti-corruption movement, two Karnataka policemen who demanded better wages, and a Tamil poet who criticised the state's liquor policy. Common Cause position on sedition is explained by Pallavi Sharma in this issue (See pages 26-27).

However, Kannada actor Ramaya's case is particularly striking. She faced sedition charges for saying Pakistan is not hell and that the people there are also like us. Having inherited the same colonial laws, Pakistan's reasonable restrictions include a clause about the "glory of Islam" and the victims are mostly activists and intellectuals. Pakistan could well be a few degrees worse than us because the dissenters often 'disappear' in the thin air, but the idea of restricting speech in the name of religion has many takers in India.

Common Cause is also concerned about 'un-freedoms' built into the system for a vast majority of the poor and vulnerable people who are unable to speak up, or be heard, beyond elections. Free speech also includes the citizens' right to articulate their grievances (and get them redressed), right to ask questions and the right to blow the whistle in matters of public interest. Regrettably, successive governments are trying every trick in the book to dilute the RTI Act. The Whistle-blower Protection Act, which provides a mechanism for inquiring into public interest disclosures or a wilful misuse of power by public servants, is stuck in amendments to exclude certain 'sensitive' departments even before implementation.

The idea of free speech, like most other fundamental rights, is yoked to the survival of democracy with the free and competent judiciary, independent public institutions and rights-based citizenship. As articulated by Achen and Bartels in 'Democracy for Realists' (2016, Princeton Univ Press) that ills of democracy are unlikely to be cured by the rhetoric of "more democracy" but by removing power imbalances and by providing a greater degree of economic and social equality to all.

This issue of Common Cause is dedicated to the freedom of speech. Like always, we are eager to know your views and comments. Please write in to us at commoncauseindia@gmail.com.


* Vipul Mudgal

Volume: Vol. XXXV No. 4
October-December, 2016