The Criminalisation of Peaceful Expression in India – Human Rights Watch
Freedom of expression is protected under the Indian constitution and international treaties to which India is a party. Politicians, pundits, activists, and the general public engage in vigorous debate through newspapers, television, and the Internet, including social media. Successive governments have made commitments to protect freedom of expression.
“Our democracy will not sustain if we can’t guarantee freedom of speech and expression,” Prime Minister Narendra Modi said in June 2014, after a month in office. Indeed, free speech is so ingrained that Amartya Sen’s 2005 book, The Argumentative Indian, remains as relevant today as ever.
Yet Indian governments at both the national and state level do not always share these values, passing laws and taking harsh actions to criminalize peaceful expression. The government uses draconian laws such as the sedition provisions of the penal code, the criminal defamation law, and laws dealing with hate speech to silence dissent. These laws are vaguely worded, overly broad, and prone to misuse, and have been repeatedly used for political purposes against critics at the national and state level.
While some prosecutions, in the end, have been dismissed or abandoned, many people who have engaged in nothing more than peaceful speech have been arrested, held in pre-trial detention, and subjected to expensive criminal trials. Fear of such actions, combined with uncertainty as to how the statutes will be applied, leads others to engage in self-censorship.
In many cases, successive Indian governments have failed to prevent local officials and private actors from abusing laws criminalizing expression to harass individuals expressing minority views, or to protect such speakers against violent attacks by extremist groups. Too often, it has instead given in to interest groups who, for politically motivated reasons, say they are offended by a certain book, film, or work of art. The authorities then justify restrictions on expression as necessary to protect public order, citing risks of violent protests and communal violence. While there are circumstances in which speech can cross the line into inciting violence and should result in legal action, too often the authorities, particularly at the state level, misuse or allow the misuse of criminal laws as a way to silence critical or minority voices.
This report details how the criminal law is used to limit peaceful expression in India. It documents examples of the ways in which vague or overbroad laws are used to stifle political dissent, harass journalists, restrict activities by nongovernmental organizations, arbitrarily block Internet sites or take down content, and target religious minorities and marginalized communities, such as Dalits.
The report identifies laws that should be repealed or amended to bring them into line with international law and India’s treaty commitments. These laws have been misused, in many cases in defiance of Supreme Court rulings or advisories clarifying their scope. For example, in 1962, the Supreme Court ruled that speech or action constitutes sedition only if it incites or tends to incite disorder or violence. Yet various state governments continue to charge people with sedition even when that standard is not met.
While India’s courts have generally protected freedom of expression, their record is uneven. Some lower courts continue to issue poorly reasoned, speech-limiting decisions, and the Supreme Court, while often a forceful defender of freedom of expression, has at times been inconsistent, leaving lower courts to choose which precedent to emphasize. This lack of consistency has contributed to an inconsistent terrain of free speech rights and left the door open to continued use of the law by local officials and interest groups to harass and intimidate unpopular and dissenting opinions.
The problem in India is not that the constitution does not guarantee free speech, but that it is easy to silence free speech because of a combination of overbroad laws, an inefficient criminal justice system, and the aforementioned lack of jurisprudential consistency. India’s legal system is infamous for being clogged and overwhelmed, leading to long and expensive delays that can discourage even the innocent from fighting for their right to free speech.
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