Subramanian Swamy v. UoI: Unanswered Arguments

By Anna Liz Thomas

A lot has been made of the Supreme Court’s ruling in Subramanian Swamy v. Union of India, finding criminal defamation laws in India, encapsulated in sections 499 and 500 of the IPC and section 199 of the CrPC, constitutional. Most public commentary has been critical of the reasons and language of the judgment. This post will attempt something different: to highlight the arguments of the petitioners that never found place in the 268 pages of the Court’s judgment. The various petitions are available here.

Non-application of Auto Shankar

Several petitions had relied on R. Rajagopal v. State of Tamil Nadu (the Auto Shankar case) to discuss the evolved standards and tests to be used in the case of defamation. The Auto Shankar case primarily dealt with the question of whether the State or its officials could impose prior restraint on publishing of material that is defamatory of the State or its officials. The case also adopted the American standards for defamation in the case of public officials as laid down in New York Times v. Sullivan. In doing so, truth as a defence no longer required statements to be conclusively established in a court of law. All that the defendant needed to prove was that she had acted after a reasonable verification of facts, and that the publication was not actuated by malice. This provided some “breathing space” for critical speech.

Though the Court in Auto Shankar had issued a caveat that the ratio of the decision was limited to civil defamation and did not extend to criminal defamation, its principles should not be discounted. In fact, these principles attain greater significance in criminal defamation because the threshold for imposing liability is always lower in civil cases as compared to criminal cases. However, by failing to take into account the ratio of the Auto Shankar case, the SC’s criminal defamation judgment has in fact inverted the thresholds. Additionally, by failing to consider the Auto Shankar case, the Court also failed to consider the several arguments made in the Petitions against the partial treatment accorded under S.199(2) towards public officials, and the need for officials to have thick skins in the face of public criticism.

 India’s International Obligations

The petitions also highlighted the various countries that had decriminalized defamation. They also focused on India’s various international obligations to uphold the freedom of opinion and expression under the UDHR and the ICCPR. The UN HRC has noted that the criminalization of opinion would be incompatible with Paragraph 1 of Article 19 of the ICCPR. The HRC has also urged all State parties to consider the decriminalization of defamation, and has stated that imprisonment is never an appropriate penalty. The fact that the ICCPR recognizes the right to reputation under Article 17 and Article 19(3) while simultaneously frowning on criminal defamation is very pertinent. In this context,

Senior Advocate Rajeev Dhavan, applying the Supreme Court’s judgment in Visakha, argued that even without incorporating international treaties in Indian law one could read the obligations into the fundamental rights. The only caveat was that the obligations themselves must not be inconsistent with the fundamental rights. This would mean that one should be able to read in India’s international obligation to uphold free speech and expression into Art. 19(2) such that the scope of “defamation” in the Article is limited purely to civil defamation. The Court however chose not to address this argument. The Court failed to consider any of the international obligations that India holds towards upholding free speech, or the long list of countries that have decriminalized defamation. This line of argument has been cursorily mentioned in the summary of the ASG’s arguments, where it was stated that the mere fact that certain countries have decriminalized defamation does not in itself mean that the Indian criminal defamation law is unreasonable.

It may be understood by the silence of the judgment that the Court possibly agreed with the ASG, with respect to the law as it stands in other countries. However, the Court has not provided an explanation as to why the question of India needing to fulfil its international obligations has not been answered. It could be argued that the question does not really need answering given that fostering respect for international law and treaty obligations is only a Directive Principle of State Policy under Art.51, and hence unenforceable. However, given the fact that the judgment has built an argument for protecting the right to reputation on the basis of constitutional fraternity as laid down in the Preamble and fundamental duties under Art.51A which itself is unenforceable, the directive principle of upholding international obligations should have been considered by the Court.

Proportionality in Punishment 

A case that was briefly discussed in the petitions was Lohé Issa Konaté v. The Republic of Burkina Faso, where the African Court on Human and Peoples’ Rights had held that the custodial sanction imposed for defamation was a disproportionate penalty for the act itself. The judgment permitted criminal sanctions in the nature of civil or administrative fines subject to the criteria of necessity and proportionality. The Court also directed Burkina Faso to alter its criminal defamation laws so that criminal penalties were no longer allowed This case would have especially been relevant in Subramanian Swamy since it could have led to a more detailed discussion on the proportionality of the punishment as opposed to the proportionality of the law. The proportionality of S.500 as a punishment was not really contemplated by the Court. If it had been done, it might have been possible to say that the penalty be amended to something more proportionate (for instance to be limited to a fine levied by the State to further the deterrence of defamatory speech), even if the law itself was not repealed. The arguments in the petitions were decidedly more focused on the constitutionality of criminal defamation, and the fact that the process itself was the punishment. The Court is therefore absolved to some extent for not considering how to make the punishment itself more proportionate and reasonable.

Criminal v. Civil Remedies and Disparate Impact

The Petitioners had also dwelled in detail on the differences between having a criminal and a civil remedy. A civil remedy requires the complainant to undertake certain troubles, both physically and financially, if she wishes to see the case through, thus ensuring that only a person with a legitimate claim would wish to file a complaint. A criminal recourse on the other hand merely requires the filing of the complaint for no charge, and the State takes over with the prosecution. In the case of a criminal trial, the threat of criminal sanctions facilitates the harassment and humiliation of the accused, and results in frivolous complaints. The eventual acquittal of the accused, and upholding their freedom of speech, is of little consolation at the end of the prolonged criminal proceedings. Yet again, the Court failed to consider these arguments. It could be argued that every criminal trial suffers from these defects, and hence the Court need not respond to this line of argumentation. Yet, what may be of importance in the case of criminal defamation is the context in which the complaint is often introduced. This context includes the obfuscation of public inquiry by political parties, and the harassment of journalists and bloggers by corporations in order to impose silence. Given this context, one can see the direct connection between the criminalization of defamation and the chilling effect on speech.

While the Court did hold that in the context of the CrPC, an abuse of process or the potential for abuse of a law is no ground for repealing the law itself, the Court failed to notice the fact that the criminal defamation provisions themselves are being used as a tool by the powerful to harass the weak. Whether the Court is even bound to notice disparate impact while deciding on constitutionality is arguable. But the Court has noted in this very judgment that it is “the ultimate “impact”, that is, effect on the right that has to be determined”[1]. If this is indeed, what needs determination, the Court is required to have examined the context of application of criminal defamation laws to gauge the “impact”.

Other arguments

There were several rhetorical ideas that were expressed with respect to the stigma attached to a person who is under trial for criminal defamation and the long drawn process of litigation in criminal courts. The impact on the citizen’s right to know and the change in Indian constitutional norms from the time of the British Raj were also brought up in the petitions. In addition to this there were also arguments targeting the vagueness of the explanations and exceptions attached to S.499. These arguments were not given much consideration by the Court, and even when considered, was done so in a cursory manner, without truly looking at the content of the argument. It has already been noted that the Court has not appreciated the difference between the argument against the constitutionality of criminal defamation, and the argument against the scheme of criminal defamation as laid down in the IPC and the CrPC. Perhaps a more thorough consideration of the numerous arguments made across the twenty-four petitions may have resulted in a better understanding of the distinctions being drawn by the petitioners across their arguments, resulting in a better judgment.

(Anna is a law student at NALSAR University of Law & currently an intern at CCG)

[1] Para 125 of the judgment.

CCG analyses on the Criminal Defamation ruling

Written by Nakul Nayak

Since the Supreme Court’s May 13th ruling on the constitutionality of criminal defamation laws in India, CCG has come out with two op-eds on the shortcomings of the judgment.

1. In today’s Indian Express, Chinmayi Arun (Executive Director of CCG) raises important questions surrounding the implications of the judgment. Specifically, Chinmayi points out the glaring dissonance in the Central Government arguing for a right to reputation in the domain of defamation and simultaneously arguing against the fundamental right to privacy in the Aadhar hearings. Chinmayi also goes on to criticise the Supreme Court’s inadequate recognition of the powerful parties that use criminal defamation laws and their disparate impact on ordinary citizens. Her op-ed can be found here.
2. A few days back, I wrote an opinion piece in Livemint arguing that criminal defamation laws can and have been used by state officials to obfuscate public inquiry. This affects the truth-seeking endeavour of free speech, apart from the fact that India necessitates a “public good” value to truthful statements to qualify as a defence. I also argue that section 199 of the CrPC, which enlists the procedure to be followed in any criminal defamation prosecution, envisages an additional avenue for silencing criticism of official conduct by allowing a public prosecutor to file a complaint even when the particular state servant may not have felt aggrieved. My op-ed can be found here.
3. Post Script [May 27, 2016]: Anna Liz Thomas, a student at NALSAR University and an intern with CCG, has written an interesting piece analysing the arguments of the petitioners that were never countered or even addressed by the Supreme Court. Anna proceeds with look at the effect of these arguments and this, apart from making for a compelling read, makes one wonder whether the rebuttal of these arguments would have made the judgment a more informed and nuanced one. Anna’s post can be found here.

Supreme Court finds Criminal Defamation Constitutional

Written by Nakul Nayak

Today, a two-judge bench of the Supreme Court found criminal defamation as constitutionally valid. Recall that the Supreme Court had reserved judgment in this matter in August last year after extensive hearings. Leaders from across the political divide, including Subramanian Swamy, Arvind Kejriwal, and Rahul Gandhi, filed these petitions challenging sections 499 and 500 of the IPC and section 199 of the CrPC – the provisions that constitute the criminal defamation regime in India.

Note that the judgment is not out yet and a deeper explication will be made after the text is made public, probably in a few hours. Preliminary updates from social media, however, suggest that the Court has justified criminal defamation as a reasonable restriction on free speech. Additionally, the Court has indulged in a balancing act between a “right to reputation” under Article 21 and free speech under Article 19(1)(a). Moreover, as per reports, the Court claims that defamation protects “societal interests” and “constitutional fraternity”. The latter is an especially vague term and deserves to be expounded in detail in the text of the judgment. An interesting aspect of the judgment should be about a reading of the safeguards inherent in section 499 of the IPC that merit a claim that the section is not open to abuse. We await the “thick” judgment.

Free Speech & Violent Extremism: Special Rapporteur on Terrorism Weighs in

Written by Nakul Nayak

Yesterday, the Human Rights Council came out with an advance unedited version of a report (A/HRC/31/65) of the Special Rapporteur on protection of human rights while countering terrorism. This report in particular deals with protecting human rights while preventing and countering violent extremism. The Special Rapporteur, Ben Emmerson, has made some interesting remarks on extremist speech and its position in the hierarchy of protected and unprotected speech.

First, it should be noted that the Report tries to grapple with and distinguish between the commonly substituted terms “extremism” and “terrorism”. Noting that violent extremism lacks a consistent definition across countries and in some instances any definition at all, the Report goes on to liken it to terrorism. He also acknowledges the lack of understanding of the “radicalization process”, whereby innocent individuals become violent extremists. While the report does not suggest an approach to defining either term, it briefly contrasts the definitions laid down in various countries. However, there does seem to be some consensus on the ambit of violent extremism being broader than terrorism and consisting a range of subversive activities.

The important section of the Report, from the perspective of free speech, deals with incitement to violent extremism and efforts to counter it. The Report cites UN Resolution 1624(2005) that calls for the need to adopt legislative measures as effective means of addressing incitement to terrorism. However, the Report insists on the existence of “serious human rights concerns linked to the criminalization of incitement, in particular around freedom of expression and the right to privacy.”[1] The Report then goes on to quote the UN Secretary General and the Special Rapporteur on Free Expression laying down various safeguards to laws criminalizing incitement. In particular, these laws must prosecute incitement that is directly related to terrorism, has the intention and effect of promoting terrorism, and includes judicial recourse, among other things.[2]

This gives us an opporutnity to discuss the standards of free speech restrictions in India. While the Supreme Court has expressly imported the American speech-protective standard of incitement to imminent lawless action in Arup Bhuyan, confusion still persists over the applicable standard in any justifying any restriction to free speech. The Supreme Court’s outdated ‘tendency’ test that does not require an intimate connection between speech and action still finds place in today’s law reports. This is evident from the celebrated case of Shreya Singhal. After a lengthy analysis of the public order jurisprudence in India and advocating for a direct connection between speech and public disorder, Justice Nariman muddies the water by examining section 66A of the IT Act under the ‘tendency’ test. Some coherence in incitement standards is needed.

The next pertinent segment of the Report dealt specifically with the impact of State measures on the restriction of expression, especially online content. Interestingly, the Report suggests that “Governments should counter ideas they disagree with, but should not seek to prevent non-violent ideas and opinions from being discussed.”[3] This brings to mind the recent proposal of the National Security Council Secretariat (NSCS) seeking to set up a National Media Analytics Centre (NMAC) to counter negative online narratives through press releases, briefings, and conferences. While nothing concrete has come out, with the proposal still in the pipelines, safeguards must be implemented to assuage chilling effect and privacy concerns. It may be noted here that the Report’s remarks are limited to countering speech that form an indispensible part of the “radicalization process”. However, the NMAC covers negative content across the online spectrum, with its only marker being the “intensity or standing of the post”.

An important paragraph of the report- perhaps the gist of the free speech perspective in the combat of violent extremism- is the visible unease in determining the position of extremist speech glorifying and advocating terrorism. The Report notes the Human Rights Committee’s stand that terms such as “glorifying” terrorism must be clearly defined to avoid unnecessary incursions on free speech. At the same time, the “Secretary General has deprecated the ‘troubling trend’ of criminalizing glorification of terrorism, considering it to be an inappropriate restriction on expression.”[4]

These propositions are in stark contrast to India’s terror legislation, the Unlawful Activities Prevention Act, 1967. Section 13 punishes anyone who “advocates, … advises … the commission of any unlawful activity …” An unlawful activity has been defined in section 2(o) to include speech acts that

• supports a claim of “secession of a part of the territory of India from the Union” or,
• “which disclaims, questions … the sovereignty and territorial integrity of India” or,
• rather draconically, “which causes … disaffection against India.”

It will also be noted that all three offences are content-based restrictions on free speech i.e. limitations based purely on the subjects that the words deal in. Textually, these laws do not necessarily require an examination of the intent of the speaker, the impact of the words on the audience, or indeed the context in which the words are used.

Finally, the Report notes the views of the Special Rapporteur on Free Expression on hate speech and characterizing most efforts to counter them as “misguided”. However, the Report also “recognizes the importance of not letting hate speech go unchecked …” In one sense, the Special Rapporteur expressly rejects American First Amendment jurisprudence, which does not acknowledge hate speech as a permissible restriction to free speech. At the same time, the Report’s insistence that “the underlying causes should also be addressed” instead of being satisfied with mere prosecutions is a policy aspiration that needs serious thought in India.

This Report on violent extremism (as distinct from terrorism) is much-needed and timely. The strong human rights concerns espoused, with its attendant importance attached to a context-driven approach in prosecuting speech acts, are a sobering reminder about the many inadequacies of Indian terror law and its respect for fundamental rights.

Nakul Nayak was a Fellow at the Centre for Communication Governance from 2015-16.

[1] Para 24.

[2] Para 24.

[3] Para 38.

[4] Para 39.

Delhi HC Grants Bail to Kanhaiya: A Pyrrhic Victory

Written by Nakul Nayak

Yesterday, the Delhi High Court granted interim bail of six months to JNU Students Union President Kanhaiya Kumar. Until the bail order, Kanhaiya was in judicial custody for his alleged role in sloganeering at the JNU campus on the anniversary of Afzal Guru’s death on February 9. While the decision to grant bail comes as a relief to free speech advocates, the contents of the order is cause for concern.

In a 23 page order, Justice Pratibha Rani laced principles of legal reasoning with unnecessary obiter that may very well have set the framework of the merits before the Magistrate. After a short and sufficient discussion of the principles of bail, Justice Rani goes on to deliberate the question of granting bail in terms that have become resonant to the polarized primetime news channel debates in India. The order routinely uses words such as “anti-national”, “intellectual”, and compares this case to the Army’s struggles in extreme weather conditions. At one point, Justice Rani even draws an analogy between “anti-national slogans” and “infections” and in extreme cases “gangrene”. She calls for its control/cure through remedial efforts, “surgical intervention”, or even through “amputation”. One cannot help but be reminded of Anupam Kher’s similar controversial remarks on “pest control”.

It is unfortunate that her order contains such judicial surplusage. Any bail order, as Justice Rani herself remarks, must “ensure that there is no prejudging and no prejudice” and include “a brief examination [of the evidence] for satisfying about the existence or otherwise of a prima facie case is necessary.” That being the object, as Justice Rani rightly cites the Supreme Court in Kalyan Chandra Sarkar, “there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.” Thus, from the principles enunciated in this bail order itself, it appears that Justice Rani’s mandate was to

1. Indicate the existence of a prima facie case through a brief examination of the evidence and;
2. Provide prima facie reasoning for granting bail.

While discharging its duty to note the existence of a prima facie case, the Court may have gone a step too far and violated its own principle: “to ensure that there is no prejudging and no prejudice”. After demanding the need for “introspection by the student community”, the Court states “… remedial steps are also required to be taken in this regard by those managing the affairs of the JNU so that there is no recurrence of such incident.”

Thereafter, in no uncertain terms, the Court remarks that “[t]he thoughts reflected in the slogans raised by some of the students of JNU who organized and participated in that programme cannot be claimed to be protected as fundamental right to freedom of speech and expression.” The effect of this statement may have done irreversible damage to the trial of Kanhaiya. Remember, the magistrate needs to answer both whether Kanhaiya was involved in the sloganeering activities and whether these activities constitute sedition under sec. 124A of the IPC. Admittedly, the Court clarifies near the end that its observations are not “an expression on merits”. However, the visceral effects of the order on the Magistrate cannot be discounted.

On the next requirement for prima facie reasoning for granting bail, the order appears to have devoted little analysis. It states

During the period spent by the petitioner in judicial custody, he might have introspected about the events that had taken place. To enable him to remain in the main stream, at present I am inclined to provide conservative method of treatment.

Taking into consideration the facts and circumstances, I am inclined to release the petitioner on interim bail for a period of six months.

While orders granting or denying bail decisions are inherently discretionary, the present order uses only speculative reasoning to satisfy a “prima facie conclusion” for granting bail. Further analysis was warranted.

Justice Rani’s order reads as an essay on paternalism dressed in banal rhetoric. The order expressly connects considerations of granting bail with the toils of the army. It reads

While dealing with the bail application of the petitioner, it has to be kept in mind by all concerned that they are enjoying this freedom only because our borders are guarded by our armed and paramilitary forces. Our forces are protecting our frontiers in the most difficult terrain in the world i.e. Siachen Glacier or Rann of Kutch.

This reasoning appears very whimsical. Considerations in any bail matter range around the gravity of the alleged offence, offender’s history, apprehensions of witness tampering, offender escaping jurisdiction etc. In essence, these considerations have some correlation to the matter at hand. The coordinates of the army on a map do not and cannot be a factor to be considered generally.[1]

At another point, as if to justify this fanciful connection, the Court draws on this stronger. It states

Suffice it to note that such persons enjoy the freedom to raise such slogans in the comfort of University Campus but without realising that they are in this safe environment because our forces are there at the battle field situated at the highest altitude of the world where even the oxygen is so scarce that those who are shouting anti-national slogans holding posters of Afzal Guru and Maqbool Bhatt close to their chest honoring their martyrdom, may not be even able to withstand those conditions for an hour even.

The consequence of this order is that Kanhaiya has been granted interim bail for six months. Yet, at the same time, he may have to begin his trial before the Magistrate in the backfoot. Apart from fighting the charge that he was not involved in the sloganeering in any way, the burden will effectively shift on him to prove why the slogans do not constitute “anti-national activity”, which is anyway not recognized under sec. 124A.

Minor post script: while dealing with questions of nationalism and “anti-national attitudes” from a judicial sense, there is much we can learn from the US Supreme Court in Barnette. This case sprung up in the midst of World War II, where hysteria and hyper-nationalism were ubiquitous among all sparring nations. When the West Virginia Education Board made flag salutes compulsory, the US Supreme Court struck down the obligation, articulating one of its most passionate statements on the meaning of liberty and dissent. It held

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

Nakul Nayak was a Fellow at the Centre for Communication Governance from 2015-16.

[1] Of course specific instances when the army is instrumentally involved in the matter is another question.

Pakistan, Sri Lanka, and Nepal get their own version of YouTube

Written by Nakul Nayak

In a significant development, Google announced yesterday that it has launched a localized version of its immensely popular video-sharing website YouTube in Pakistan, Nepal, and Sri Lanka. With this launch, users in these countries will access country-specific homepages. Moreover the architecture of the site’s pages (and videos) will be tailored such that the YouTube experience will include the “most relevant videos” of a user’s country. It may be noted here that YouTube is already available in Nepali, Sinhalese, and Urdu.

The case of Pakistan is especially interesting because of YouTube’s frequent run-ins with the country’s administration over carrying blasphemous content. In fact, YouTube was banned in Pakistan in 2012 after the infamous film “Innocence of Muslims”, which was uploaded on and accessible through its site, created widespread public furore. The Supreme Court of Pakistan at that time insisted on the continuation of the ban till such time as a method was found to block all blasphemous content. Even though YouTube is now localized for Pakistani content, reports indicate that the ban on the accessibility to the website continues to persist. However, at least one report stated that users in different parts of Pakistan found “that the site was accessible under ‘https’ protocol.”

BytesforAll, an NGO based in Pakistan, had filed a case before the Lahore High Court in 2013, challenging the government’s blocking of YouTube. The case is still being heard. It may be worthy to recall here that just last month, the European Court of Human Rights in Cengiz v. Turkey had found Turkey’s blocking of YouTube to be violative of the right to receive and impart information. Unfortunately, the ECtHR judgment is available only in French. However, the official press release to the judgment stated that the Court

observed that YouTube was a single platform which enabled information of specific interest, particularly on political and social matters, to be broadcast. It was therefore an important source of communication and the blocking order precluded access to specific information which it was not possible to access by other means. Moreover, the platform permitted the emergence of citizen journalism which could impart political information not conveyed by traditional media.

Moving forward, it would be interesting to note how the Pakistani government reacts to YouTube’s move of localized domain, language, and content; whether it decides to unblock YouTube or continues its ban. Moreover, the battle in the YouTube case in the Lahore High Court may take a decisive turn, with the Court more open to trusting a localised website, catering to the needs and legal regulations of Pakistan.

Update: 19 January 2016

Reports state that Pakistan has officially lifted its ban on users’ access to YouTube. This major development comes in the wake of Google’s launching a localised version of YouTube, tailor-made for the Pakistani audience (discussed above). Note that the current ban on YouTube was imposed after the Supreme Court of Pakistan directed that all “offending material” should be blocked from the site. But in an update tendered to the Supreme Court on Saturday, Dawn newspaper reports that “it was not possible to block access to the ‘Innocence of Muslims’ clip — that caused an uproar in the Muslim world — without blocking the website’s IP address, which meant cutting all access to YouTube.“

Now, with a localised version of the site, the Government can ask YouTube to take down material and, as per the reported Government statement, YouTube would “accordingly restrict access”. However, at the same time, any content removal request to Google will be reviewed on the anvils of its own Community Guidelines and will be taken down only if it violates the same. According to Reuters, Google said in a statement “[w]e have clear community guidelines, and when videos violate those rules, we remove them … Where we have launched YouTube locally and we are notified that a video is illegal in that country, we may restrict access to it after a thorough review.“

In the coming weeks, it will be interesting to note the course of action taken by the Pakistani Government if a takedown request is not complied with by Google.

Parliamentary Standing Committee on a New Online Hate Speech Provision

Written by Nakul Nayak

(My thanks to Mr. Apar Gupta for providing this lead through his Twitter feed.)

Amidst the noise of the winter session of Parliament last month, a new proposal to regulate online communications was made. On December 7^th, the Parliamentary Standing Committee on Home Affairs presented a status report (“Action Taken Report”) to the Rajya Sabha. This report was in the nature of a review of the actions taken by the Central Government on the recommendations and observations contained in another report presented to the Rajya Sabha in February, 2014 – the 176^th Report on the Functioning of the Delhi Police (“176^th Report”). In essence, these reports studied the prevalent law and order condition in Delhi and provided recommendations, legal and non-legal, for fighting crime.

One of the issues highlighted in the 176^th Report was the manifest shortcomings in the Information Technology Act. The Report noted that the IT Act needed to be reviewed regularly. One particular suggestion given by the Delhi Police in this regard related to the lack of clarity in the definition of the erstwhile sec. 66A. The police suggested that “[s]everal generalized terms are being used in definition of section 66A of IT Act like annoyance, inconvenience, danger, obstruction, insult, hatred etc. Illustrative definition of each term should be provided in the Act with some explanation/illustration.”[1] Note that this report was published in 2014, more than a year before the Supreme Court’s historic ruling in Shreya Singhal finding sec. 66A unconstitutional.

An important proposition of law that was laid down in Shreya Singhal was that any restriction of speech under Art. 19(2) must be medium-neutral. Thus, the contours of the doctrines prohibiting speech will be the same over the internet as any other medium. At the same time, the Court rejected an Art. 14 challenge to sec. 66A, thereby finding that there existed an intelligible differentia between the internet and other media. This has opened the doors for the legislature to make laws to tackle offences that are internet-specific, like say phishing.

The Action Taken Report notes that as a result of the striking down of sec. 66A, some online conduct has gone outside the purview of regulation. One such example the report cites is “spoofing”. Spoofing is the dissemination of communications on the internet with a concealed or forged identity. The Report goes on to provide a working definition for “spoofing” and proposes to criminalise it. If this proposal falls through, spoofing will be an instance of an internet-specific offence

Another example of unjustifiable online conduct that has been exonerated post-Singhal is hate speech. Hate speech laws is a broad head that includes all such legal regulations that proscribe discriminatory expression that is intended to spread hatred or has that effect. The Report states that all online hate speech must be covered under the IT Act through an exclusive provision. It has suggested that this provision be worded as follows

whoever, by means of a computer resource or a communication device sends or transmits any information ( as defined under 2 (1) (v) of IT Act )

1. which promotes or attempts to promote, on the ground of religion, race, sex, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between 
religious, racial, linguistic or regional groups or caste, or communities, or
2. which carries imputations that any class of persons cannot, by reason of their being members of any religious, racial, linguistic or regional group or caste or community bear true faith and allegiance to constitution of India, as by law 
established or uphold the sovereignty or integrity of India, or
3. which counsels advices or propagates that any class of persons shall or should be by reason of their being members of any religious, racial, language or religion group or caste or community or gender be denied or [sic] deprived of their rights as 
citizens of India, or
4. carries assertion, appeal, counsel, plea concerning obligation of any class of 
persons, by reasons of their being members of any religion, racial, language or religion group or caste or community or gender and such assertion, appeal, counsel or plea causes or is likely to cause disharmony or feeling of enmity or hatred or ill-will between such members or other persons.”

shall be punishable with ………”

A mere perusal of these provisions reveals that they are substantially similar to the offenses covered under sec. 153A and sec. 153B of the Indian Penal Code, which along with sec. 295A of the IPC form the backbone of penal regulations on hate speech. In this backdrop, it would appear that the proposed insertion to the IT Act is redundant. The Action Taken Report justifies the inclusion of this proposed provision on the ground that the impact caused by the “fast and wider spread of the online material … may be more severe and damaging. Thus, stricter penalties may be prescribed for the same as against similar sections mentioned in IPC.” However, if the rationale is to employ stricter penalties to online content, then the Report could very well have suggested amendments to sec. 153A and sec. 153B.

What is disconcerting, however, is the assumption that because incendiary content is posted online, its effect will be “more severe and damaging”. Indeed social media has had a hand in the spread of violence and fear in tense situations over the last few years, starting from the North East exodus to the Muzzafarnagar riots and up to as recently as Dadri lynching. Yet, the blanket assertion that online content is more damaging does not take into account many variables like

• the influence of the speaker – A popular public figure with a large following can exercise much more influence on public behaviour in an offline medium than a common man can on social media,
• the atmospheric differences between viewing online content in your house and listening to speech at a charged rally, or
• the internal contradictions of online speech, like the influence exerted by a 140 character tweet vis-à-vis a communally sensitive video (note here that the Supreme Court itself has emphatically recognized the difference between motion picture and the written word in stirring emotion in KA Abbas).

The Report could perhaps benefit from a more nuanced understanding of hate speech. A well-recognized effort in that direction is Prof. Susan Benesch’s Dangerous Speech framework. Prof. Benesch has devised a five-point examination of incendiary speech on the basis of the speaker, the audience, the socio-historical context, the speech act, and the means of transmission. This characterises the effects of the alleged hate speech in a more organized manner, allowing for a more informed adjudication on the possible pernicious effect that said speech might have.

An interesting question of debate could well centre on the proposed enhanced penalty for online hate speech. Would greater penalty for online speech (as opposed to offline speech) attract the ire of the doctrinal stance of medium-neutrality of the Court? Note that the Court in Shreya Singhal only mentions that the standards of determining speech restriction must be medium-neutral. Yet, the premise of enhanced penalties is based on the greater speed and access of online speech, which is necessarily internet-specific. Will a Court’s adjudication of penalties for criminalized speech amount to a standard or not?

Retweeting akin to Fresh Publication?

The Report also suggests that any person who shares culpable online content “should also be liable for the offence”. This includes those who “innocently” forward such content. Thus, for instance, anyone who retweets an original tweet that is later criminalized, will also be found liable for the same offence, as if he originally uploaded the content. According to the Report, “[t]his would act as a deterrent in the viral spread of such content.”

Forwarding of content, originally uploaded by one individual, is a popular feature in social media websites. Twitter’s version is called ‘Retweet’, while Facebook’s version is called ‘Share’. When a person X shares a person Y’s post, it may mean one of two things

1. X endorses said opinion and expresses the same, through the mask of Y.
2. X conveys to his followers the very fact that Y remarked said content. (In fact, many individuals provide a disclaimer on their Twitter profiles that Retweets do not necessarily meant endorsements.)

In an informative academic article, Nandan Kamath, a distinguished lawyer, termed people who forward information as “content sharers”, characterizing them as “a new breed of intermediaries”. Kamath goes on to liken content sharing to linked quotations and not as fresh publications. In doing so, he calls for restricted liabilities to content sharers. Kamath also examines the UK position on prosecution for social media content, which is multi-faceted, requiring “evidential sufficiency” and “public interest”.

The observations of the Action Taken Report appear linear in their stance of criminalizing all content sharing where the expression may be culpable. In doing so, it assumes all content sharing to amount to original speech. This approach turns a blind eye to instances where a sharer intends the post as a linked quotation. The Report would do well to take these concerns into account, thereby developing a more nuanced policy.

Nakul Nayak was a Fellow at the Centre for Communication Governance from 2015-16.

[1] Para 3.10.2

Allahabad High Court Rules on Criminal Contempt

Written by Nakul Nayak

In a recent decision [In Re: KK Mishra @ Balram], the Allahabad High Court found an advocate guilty of contempt of court. The Court sentenced the advocate to six months in simple imprisonment and a fine of Rs. 2000.

The accused advocate was charged on the basis of a series of transgressions, against a Civil Judge (Junior Division). During the course of a hearing of a case argued by the advocate, the judge ordered the return of certain written arguments. The advocate then hurled abuses at the judge, making allegations of bribery and corruption. He went on to threaten the judge of “dire consequences” after Court hours. The judge reported this altercation, and the Chief Justice of the High Court initiated proceedings against the advocate.

Thereafter, the advocate filed an affidavit making allegations of corruption and casteist bias against the judge and several other judicial officers. The advocate then filed a writ petition before the High Court, seeking an inquiry by an independent agency or the CBI against the officers. The High Court dismissed this petition and levied costs of Rs. 10,000 against the advocate.

Separately and simultaneously, on learning about the initial contempt of court reference by the judge, the accused advocate and several other advocates “surrounded the judicial room and chamber and resorted to sloganeering to boycott the Court.” The advocate, along with the District Bar Association, called for total boycott of the Court for over a week (a call that materialized). Just at the heels of this, several lawyers including the contemnor-advocate surrounded the judge and intimidated him over questions of integrity. It may be noted here that strikes by lawyers are illegal and unconstitutional, except in the rarest of rare cases, decided by the judge heading the Court, and for no more than one day (see Ex-Capt. Haris Uppal).

Finally, the High Court noted that when contempt charges were read out to him, “he started shouting at the Court also”.

The sole issue before the Court was whether this factual matrix constituted “criminal contempt” under the Contempt of Courts Act, 1972 (the “Act”). The Court used “[t]he facts noticed above and the allegations made by Contemnor before subordinate Court and his conduct before Court below as also this Court (High Court)”, to find that the fact circumstances did amount to criminal contempt.

Sec. 2(c) of the Act defines criminal contempt as

the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-

• scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
• prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
• interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;”

(emphasis supplied by the Court)

 Interestingly, the Court found the accused advocate guilty for scandalizing or lowering the authority of the Court (per sec. 2(c)(i) of the Act).

In our submissions to the Law Commission of India in response to the Consultation Paper on Media Law in June 2014, we had argued for the removal of the offense of scandalizing the court from sec. 2(c) of the Act (a blog post summarily delineating these submissions is available here). The rationale offered by Courts in support of the offense of scandalizing the courts is that public respect and confidence for the authority of courts is important for the efficient administration of justice. However, as free speech enthusiasts often argue, in the court of public opinion, the possibility of the confidence of judiciary plummeting is greater, not lesser, when criticism is suppressed.

A hallmark of any modern democracy is the vigorous critique of public institutions. If the judiciary is a public institution – which it is – then it should be subject to the same degree of scrutiny as, say, the Executive. Which is not to say that contempt of court powers is not worthy of protection at all. Indeed, contempt powers are expressly recognized as a justifiable restriction to free speech under Article 19(2) of the Constitution. CCG’s submissions find the raison d’être of contempt powers to be “intended to preserve the integrity of the adjudicatory process rather than judges’ reputations”.[1] If that is so, then sec. 2(c)(ii) and sec. 2(c)(iii) of the Act bear direct nexus with tackling the obstruction of justice and scandalizing the Court appears almost pedestrian in causality.

Gautam Bhatia provides an interesting analysis of the offense of scandalizing the court (see here and here). After surveying the positions in the US, the UK, and the Privy Council (which take a positively speech-protective stance in this regard), he draws an analogy with seditious libel. While sedition laws in India require a “public order” requirement of inciting imminent illegalities and direct causation as opposed to mere disrespect for the Government of the day, he argues that contempt laws are triggered on extremely subjective standards (scandalizing or lowering the authority of the Court or tendency to do either). This renders the offense of scandalising the court overbroad and chills speech.

If protection of the reputation of judges (as opposed to the reputation of the Court) is the underlying and unstated end, then it would be more appropriate for the Court to use alternative means to remedy personal injury to the judges. Indeed, the accused advocate argued that criminal defamation (sec. 499 IPC) or intentional insult to Judicial Officer (sec. 228 IPC) would be more appropriate provisions for prosecution. The court disagreed. It reverted to sec. 2(c)(i) of the Act and held that

The allegations are not against individual officer regarding his integrity but in respect to his functioning as a Judicial Officer in the Court and in respect of various orders passed by him. When these allegations are made, public confidence in the impartiality, fairness and independence of institution as a whole is bound to shrink. Hence, it is bound to scandalize and lower down authority of the Court.

While public confidence in the judiciary is important, as mentioned above, it is not the object of contempt powers. The sole objective is the preservation of the administration of justice. The Court could very well have analyzed this case and arrived at similar conclusions by taking a more speech-sensitive interpretation. It could have easily read the facts from the perspective of the obstruction to justice caused by threatening the judge in Court and indulging in illegal and violent strikes in the Court premises. Instead, it resorted to the more narrow, self-serving, subjective speech restrictive standards of scandalizing the Court.

Nakul Nayak was a Fellow at the Centre for Communication Governance from 2015-16.

[1] See authorities mentioned in para 6.5, CCG Submissions to Law Commission.

Bihar Elections ’15: A Hate Speech Examination

Written by Nakul Nayak

The recent state elections in Bihar witnessed the return of Lalu Prasad Yadav as a key political player in the state. However, the elections were also notable for the bitter exchanges between the contesting parties in their election rallies and advertisements. On November 7, a day before the results of the elections were declared, the Indian Express carried a report terming this “the worst political campaign in the state’s electoral history.” Based on data from the Election Commission (EC), the Report found that “the state poll machinery filed 13 FIRs against star campaigners of different political parties for ‘hate speech’, a first for elections in Bihar.”

In this post, I provide a brief timeline of the EC’s interventions during the election period followed by an exposition of the law on hate speeches made during the election period and arrive at a comprehensive standard of determining the same as per established Supreme Court case law. Thereafter, I shall identify some inflammatory statements made by various politicians as reported in the media. Finally, I will provide a short analysis about whether these statements can withstand the standards developed by the Court.

 Timeline of Events

The EC announced the dates for the elections on September 9. On September 17, the EC issued an advisory to all contesting political parties to maintain “high standards during election campaigns” in relation to provocative and inflammatory speeches.

A month from the date of announcements of elections, on October 9, the EC criticised all contesting political parties about

the plummeting levels of political speeches by various political party leaders and candidates … The tone and tenor of the political speeches have been found to be calculated to cause mutual hatred, disharmony or ill-will and aimed at to aggravate the differences between different political parties and classes of citizens on the grounds of religion, caste and community …

On October 31, taking stock of the vitriolic political content found in advertisement spaces in newspapers, the EC directed the parties and newspapers not to public any such content that has “the potential of aggravating the differences between different classes of citizens of India and also creating mutual hatred, ill-will and disharmony amongst different social and religious communities”.

On November 1, the EC specifically pulled up Amit Shah for stating that “if Nitish-Lalu win, then consequences will be felt in Bihar and firecrackers will be burst in Pakistan.”

Finally, on November 4, a day before the polls, an exasperated EC noted instances where its above directions were violated and directed that any political advertising for the next day will necessarily have to be pre-certified by it.

 Arriving at a Hate Speech Standard for Elections

The hate speech regime in election laws is contained in two distinct provisions in the Representation of People Act, 1951 (ROPA). The first is sec. 123(3A), which outlaws the “promotion of … feelings of enmity or hatred between different classes of the citizens of India on grounds of religion, race, caste, community, or language, by a candidate or his agent or any other person with the consent of a candidate …”

The other provision is sec. 125, which states that “Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable …”

The right to stand for elections is a special right created by the ROPA. This right is not a common law right or indeed a fundamental right. Accordingly, if any person wants to contest elections, he/she must play by the rules laid down in the ROPA. On an election platform, one cannot defend one’s statements by claiming the right to free speech under Art. 19(1)(a) of the Constitution. This proposition was first held in Jumuna Prasad. As a logical corollary, the restrictions on statements made on an election platform need not necessarily be compliant with Art. 19(2). Such restrictions need only be proved, beyond a reasonable doubt, under sec. 123(3A) or sec. 125 of the ROPA.

The standard to be used in determining whether a statement constitutes “hate speech” was laid down in Ziyauddin. The Court prescribed an effects test; specifically whether the effect of the statements on “ordinary average voters” would lead to the promotion of feelings of enmity or hatred between different classes. Thus, the intention of the person making the statement is rendered irrelevant, and only the effect of that statement on the “ordinary average voter” in the circumstances is taken into consideration.

In this context, in Kultar Singh, the Court has issued a caveat. It held

In reading such documents, it would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing political parties, the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language, or the adoption of metaphors, and the extravagance of expression in attacking one another, are all a part of the game, and so, when the question about the effect of speeches delivered or pamphlets distributed at election meetings is argued in the cold atmosphere of a judicial chamber, some allowance must be made and the impugned speeches or pamphlets must be construed in that light.

Thus, the effect of the speech on the ordinary average voter taking account of the partisan context appears to be the standard to determine whether a statement violates sec. 123(3A) or sec 125 of the ROPA.

Applying this standard

Now, let us use this standard to verify the validity of the statements rounded up by the EC and other similar controversial comments.

On October 31, the Election Commission apparently singled out two BJP advertisements. They stated

• Voton ki kheti ke liye aatank ki fasal seenchtha kya sushasan hai? (‘Is good governance about harvesting votes by sowing terrorism?’)
• Daliton-Pichhadon ki thali kheench, alpasankhyakon ko aarkashan parosney ka shadyantra kya sushasan hai? (‘Is it good governance to hatch a conspiracy to snatch reservations from Dalits and Backwards and give it to the minorities?’)

The first statement was a shot at the incumbent Chief Minister about, as one article put it, “being soft on terror in order to win the support of Muslims.” The obvious implication here was that Muslims are supportive of and/or intentionally complicit in terrorism.

The second statement openly pits caste against religion in the domain of affirmative action. The inference here was that, if relected, the current Chief Minister would rob the Backward Classes of their reservations and hand it to Muslims. Here, by pandering to the “Dalits and Backwards”, the advertisement borders on sensitive communal topics. This statement must also be seen in light of the Prime Minister’s polarizing remarks a few days earlier that “Nobody will be allowed to take away your reservation and give it to any other community in pursuit of their vote bank politics.”

With respect to partisan context, these advertisements were published in written form and distributed freely. Consequently, the question of partisan feelings akin to an election rally does not arise. The effect of these statements on the ordinary average voter is a question of fact that should be decided by a Court.

As mentioned earlier, on November 1, the EC scrutinized Amit Shah’s statement that “If Nitish-Lalu win, then consequences will be felt in Bihar and firecrackers will be burst in Pakistan.”

Again, the implication of this statement was that the Nitish-Lalu political alliance was essentially a pro-Muslim one. Reading this with the earlier mentioned advertisements on “soft on terror”, one narrative (and thus effect on the ordinary average voter) that could be implied is that a pro-Muslim alliance will be conducive to terror and thus firecrackers will be burst in Pakistan. Again, this question of fact must be determined judicially through the use of witnesses and it can be near impossible to surmise.

Here, it may be noted here that all these statements are pointed at political parties or leaders directly and not religion or caste. However, as held in Ebrahaim Sait,

A speech, though its immediate target is a political party, may yet be such as to promote feelings of enmity or hatred between different classes of citizens. It is the likely effect of the speech of the voters that has to be considered

Moreover, this case also held that hate speech allegations in the ROPA employ the criminal law standard of proof beyond reasonable doubt, where the burden lies on the election petitioners.

Moving forward, it would be interesting to note if the elections of various candidates are challenged in Courts and these remarks and statements are interpreted.

Announcing the Centre for Communication Governance’s Partnership with the Berkman Center on ‘Lumen’

We are pleased to announce that the Centre for Communication Governance (CCG) will be partnering with the Berkman Center for Internet Society at Harvard University as a Regional Hub for its internet censorship database ‘Lumen’. CCG along with the Nexa Center for Internet & Society in Turin, Italy and the Instituto de Tecnologia & Sociedade in Rio de Janeiro, Brazil will act as the Berkman Center’s regional partners to expand the outreach of the Lumen database to encompass global statistics of takedown requests.

In a communiqué to the Berkman Center, Chinmayi Arun, Research Director at CCG, said “We’re delighted to be a part of Lumen. We look forward to tracking and analysing the takedown regime in India, and to working on our findings with researchers around the world. We welcome this opportunity and thank the Berkman Center for opening Lumen to us.”

Formerly called the Chilling Effects project, Berkman Center has rebranded this project as ‘Lumen’ to better reflect its new scope and expanded mission. As the Berkman Center puts it, “The name [Lumen] borrows from the unit of measurement for visible light, highlighting the use of data for transparency reporting.” As the specter of internet censorship increases – the Berkman Center estimates that they collect approximately 4000 takedown notices a day compared to a few notices they used to collect in a week – this collaborative research partnership is an important step towards painting a true picture of internet freedom and illuminating instances of censorship, justifiable or otherwise.