Friday, June 17, 2016

At what point can free speech cross over to seditious territory, – and who decides?

Legal expert Lawrence Liang argues that courts need to make it more difficult for those claiming hurt sentiments or threats to the State to harass the accused.

Is free speech protected under all circumstances; does an elected government have the right (or indeed duty) to accuse citizens of sedition? In this detailed discussion with Rishab Bailey, legal director of the Society for Knowledge Commons, lawyer and legal researcher Lawrence Liang of the Alternative Law Forum discusses the history of free speechseditionand hate speech laws in India and the United States. Liang argues that even with the various safeguards in the judicial system, the courts need to make it more difficult for those claiming hurt sentiments or threats to the state to harass the accused. Laws need to be amended to ensure that the process of investigation and adjudication is in itself not a punishment and therefore cannot be used to intimidate citizens.
Do our free speech laws not allow us to be critical of the country or the government? At what point can we say the line has been crossed from an exercise of free speech to sedition?Article 19(1)(a) of the Constitution of India which guarantees the right tofree speech and expression absolutely allows for criticism of the government.
In the Kedarnath case [Kedarnath Singh vs State of Bihar, 1962 AIR 955], where the Supreme Court examined the constitutional validity of Section 124A [of the Indian Penal Code], the court had an opportunity to consider the scope of subversive speech. Given that the word sedition by itself does not appear in Article 19(2), or in the reasonable restrictions provision, the court could uphold 124A only if it was brought within the ambit of "public order".
The court, after examining the conflict in standards in colonial-era decisions (between "bad feelings" and "bad tendency") observed that sincesedition was not included in Article 19(2), it implied that a more liberal understanding was needed in the context of a democracy. They made a clear distinction between strong criticism of the government and those words which excite with the inclination to cause public disorder and violence. They also distinguished between "the Government established by law" and "persons for the time being engaged in carrying on the administration".
The court then held that "strong words used to express disapprobation of the measures of Government with a view to their improvement or alteration by lawful means" would not come within the section. Similarly, "comments, however strongly worded, expressing disapprobation of actions of the Government, without exciting those feelings which generate the inclination to cause public disorder by acts of violence, would not be penal". They argued that what is forbidden are ‘words,"written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order".
This has been further clarified in the Rangarajan case [Rangarajan vs P Jagjivan Ram, 1989 SCC (2) 574], which lays down the one of the most significant tests after Lohia [The Superintendent, Central Prison, Fatehgarh vs Ram Manohar Lohia, 1960 AIR 633] and Kedarnath – namely the analogy of a "spark in a powder keg". In a crucial paragraph in Rangarajan, the court explicitly held that while there has to be a balance between free speech and restrictions for special interest, the two cannot be balanced as though they were of equal weight.
One can infer that the courts are making it clear that exceptions have to be construed precisely as deviations from the norm; that free speechshould prevail except in exceptional circumstances. And what is it that the court considers an exceptional circumstance?
Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg”.
The court in this paragraph lays down in no uncertain terms the standard that has to be met in alleging a relation between speech and effect. The analogy of a spark in a powder keg brings in a temporal dimension of immediacy: the speech should be immediately dangerous to public interest. In other words, it must have the force of a perlocutionary speech act, in which there is no temporal disjuncture between word and effect. A cumulative reading of the cases on public order and sedition suggests that as far as subversive speech targeted at the state is concerned, one can infer that even if there is no absolute consistency on the doctrinal tests, there is a consistency in the outer frame, namely that democracy demands the satisfaction of high standards of speech and effect if speech is to be curtailed.
Section 124A, on the face of it, appears clear in that it seeks to penalise any activities that lead to disloyalty against or feelings of contempt or enmity against the government – so why is there a requirement of imminent violence? Why did the courts introduce this test?To answer this question, it may be useful to locate the doctrinal history ofsedition law within a comparative context. In the United States the initial test applied to speech that criticised the government (especially during wartime) was the "bad tendency" test which did not protect any speech that had a tendency to cause any illegal action. In Schenk [Schenck vs United States, 249 US 47 (1919)], Justice Holmes writing for the majority added a new dimension. "The question in every case" for Holmes "is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent". Schenk clarified its scope to create a rupture between speech and consequence, arguing that "It is only the present danger of immediate evil or an intent to bring it about" that justified limitations on speech.
The "clear and present" danger test remained the prevailing standard till the 1960s, when the Brandenburg or Klu Klux Klan case [Brandenburg vs Ohio, 395 US 444 (1969)] held that while the test may even have some value in times of emergency, in ordinary times it had no place in assisting the interpretation of the first amendment. According to the court, "The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or law violation [i.e., subversive advocacy] except where (1) such advocacy is directed to inciting or producing imminent lawless action and (2) is likely to incite or produce such action." The two-step test in Brandenburg currently stands as the prevailing standards to determine protectable speech.
It is difficult in India to draw a similar straight line in the development of doctrine. Initially Indian courts explicitly rejected the "clear and present danger" test, arguing that the doctrine cannot be imported into the Indian Constitution because of "reasonable restrictions", but subsequently we see the courts adopting tests similar to the US ones, and even affirming the Brandenburg test, as in the case of Arup Bhuyan [Arup Bhuyan vs State of Assam, (2011) 3 SCC 377].
The best case to understand why the courts have adopted a far more liberal outlook on the question of critical speech is perhaps the Balwant Singh case [Balwant Singh vs State of Punjab, 1995 (1) SCR 411], which involved a few people shouting anti-India and pro-Khalistan slogans after the assassination of Indira Gandhi. The courts observed that "over sensitiveness sometimes is counterproductive and can result in inviting trouble. Raising of some lonesome slogans, a couple of times by two individuals, without anything more, did not constitute any threat to the Government of India as by law established, nor could the same give rise to feelings of enmity or hatred among different communities or religious or other groups".
It is clear that the courts’ conception of sovereignty and governmental power differs significantly from that of the present government or even of the masses more generally, and is cognisant of the fact that in a complex democracy such as India’s, where antagonistic politics is rather common, it is inevitable that people will express their disaffection in various ways, and to treat every form of disaffection as seditious goes against common sense.
Does the threat of violence have to be credible and immediate? Who makes this decision and what checks does the law have to prevent against abuse?To my mind one of the credibility tests for determining whether the threat of violence is imminent would be to understand the context of the speech, the status of the speaker and the addressee of the speech. If for example a prominent political leader made a formal speech to his armed cadre threatening to harm another community, one could reasonably assume that the nexus between the speech and the possibility imminent lawless action is very high. But if you were to compare this formal speech with say the Facebook status posted by a 21-year-old girl in Maharashtra after Bal Thackeray’s death, which observed that the state had shut down out of fear and not out of respect, one could also reasonably conclude that there is no real nexus that could be established between the speech and any possibility of violence.
There are already internal checks within the law when it comes tosedition, even though they are absent in other domains where speech is criminalised. While one would hope for a repeal of these laws in the future, it is unlikely to happen, and it might instead be useful to consider at least procedural safeguards and systemic reforms that ensure these laws are not misused in a way that makes a joke of our fundamental right to freedom of speech and expression.
One way of protecting free speech is by focusing on procedural reforms and safeguards that render the malicious use of these laws more difficult. All speech-related offences should be made bailable offences; this would lessen the harmful impact of using arrest and custody as a way of harassing anyone exercising their rights under Article 19(1)(a). Second, the offences should be made non-cognisable, so that there is at least a judicial check on the police acting on the basis of politically-motivated complaints.
In the case of offences under Sections 153A ("promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony") and 295A of the Indian Penal Code, it is mandatory under Section 196(1) of the Code of Criminal Procedure to obtain prior sanction of the government before taking cognisance of the offences. This needs to be extended to the offence of sedition under Section 124A. The Gujarat High Court in a 1980 decision [Shalibhadra Shah vs Swami Krishna Bharati, 1981 CriLJ 113] observed that the reason prior sanction is needed is because in many cases "the very filing of a prosecution after tempers have cooled down may generate class feelings which could well be avoided by the government by refusing to accord sanction", and that "the article complained of pertains to a matter falling within the area of social reform and attacks certain dogmas in a general way without intending to outrage religious feelings".
Fourth, in the case of hate speech, it is important to raise the burden of proof on those who claim that their sentiments have been hurt, rather than accept their claim at face value. And finally, it is crucial that courts begin to take action against those who bring malicious complaints against speech acts.
How do you differentiate between advocacy and incitement, given that the latter is essential to prove an offence under Section 124A while the former is not a criminal activity?The Shreya Singhal judgment [Shreya Singhal vs Union of India, (2013) 12 SCC 73] offers a very clear exposition of the difference between advocacy and incitement. The court held that three concepts are fundamental to understanding the scope of free speech. For them "The first is discussion, the second is advocacy, and the third is incitement. Mere discussion or even advocacy of a particular cause howsoever unpopular is at the heart of Article 19(1)(a). It is only when such discussion or advocacy reaches the level of incitement that Article 19(2) kicks in".
Following Justice Brandeis’ ruling in Whitney vs California [274 U.S. 357 (1927)], the Supreme Court then held that while every denunciation of law may have the possibility of resulting in illegal acts, the advocacy of violation is not a justification for denying free speech if such advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on. They approvingly cited Brandeis’ paragraph on this point: "The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be borne in mind. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated."
Given that an incitement to violence is a necessary ingredient of an offence under Section 124A, could it be argued that by hurting the sentiments of others in society you are inciting violence and lawlessness, basically causing a public order problem – would this be sufficient to invoke Section 124A? It is important to note that the question of hurt sentiment does not appear and is not a factor in Section 124A. It appears in other penal provisions that criminalise hate speech. But even on that front the courts have been very clear that speech per se is inadequate to attract penal sanction. InRamji Lal Modi vs State Of UP (1957 AIR 620) – which was not a seditioncase, but one about Section 295A which criminalises any deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs – the court held that Section 295A does not penalise every act of insult; it penalises only those acts of insult which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of a class. The court introduced two tests – "aggravated form" which defines the criteria for what counts as an insult, and the "calculated tendency" of the insult, which must be to disrupt the public order.
This article first appeared on Indian Cultural Forum.

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