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Bihar circular on action against critics: Vague and disregards right to dissent

The circular issued by Bihar government asking police to take action against persons making objectionable or offensive comments aimed towards the government, goes against not just fundamental rights but also views held by the Supreme Court and its judges

Sanchita Kadam 27 Jan 2021

Right to dissent

The latest circular/letter issued by the Economic Offences Wing of Bihar has sparked debates over how the JDU-BJP coalition heading the state is moving towards curbing freedom of speech on the internet. The letter is a reminder, and seemingly an action call to Bihar Police, to start acting on complaints against comments made on social media criticising the government and report them to the EOW, Bihar.

“The true test of democracy is its ability to ensure creation and protection of spaces where every individual can voice their opinion without the fear of retribution,” Justice DY Chandrachud had said in one of his lectures delivered at Gujarat High Court. Clearly, what the Bihar government seeks to do is in complete contrast to this view held by a Supreme Court judge.

The circular by Bihar Police's Economic Offences Unit (EOU) states, "It has regularly been coming to light that certain persons and organisations have been making offensive comments through social media and Internet against government, honourable ministers, MPs, MLAs and government officials as well, which is against prescribed law and comes under cybercrime laws. For this act, it seems appropriate to take action against such organisations and individuals".

There exist reasonable restrictions on freedom of speech and expression under the Indian Constitution that one needs to be mindful of and what the police should also look out for when booking persons basis complaints received by them to see whether the comment has any substance that it warrants action or will the action thwart one freedom of speech considering it does not violate the reasonable restrictions enshrined under Article 19(2). The police are however guided by the penal code and criminal procedures but often forget to look at constitutional and fundamental rights of persons they are acting against.

A recent example of police acting on a complaint without substance was in Madhya Pradesh where a comedian, Faruqui Munawar, and his team were put behind bars for a joke he never uttered but the complainant allegedly heard him practice before the show; one that insulted Hindu deities. Acting on this verbal complaint, the police arrested Munawar and his team and they still remain behind bars.

The circular seems like an attempt to replicate a similar model, of taking action against any person whose speech offends another, in Bihar’s case, the government. Be that as it may, what is important is whether it stands the test of constitutionality, whether it will tend to violate fundamental rights of people. The letter is an administrative diktat at best asking the Police to be more attentive and alert of complaints against comments made in criticism of the government. What triggered this action has been explained by The Wire in one of its articles where it is said that there are a number of YouTubers, social media influencers and local media platforms in Bihar who often criticise the government, and whose videos and posts go viral.

Freedom of speech

The foremost has to be the Constitution itself and while Article 19(1)(a) guarantees freedom of speech and expression clause 2 of the Article imposes restrictions in terms of the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense.

It is also important to bring in the debate against the offence of Sedition that still finds its place in the Indian Penal Code. But when the Constitution was being drafted, there was opposition in including the word sedition therein. K.M. Munshi, Member of the Drafting Committee had opined

“…a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State… As a matter of fact, the essence of Democracy is criticism of Government. The party system which necessarily involves an advocacy of replacement of one Government by another is its only bulwark; the advocacy of different system of government should be welcome because that gives vitality to a democracy”

While several Supreme Court judgements may be cited that have upheld freedom of speech and expression in its myriad manifestations including, freedom of press, expression through literature, art, cinema and so on, the most relevant one is the judgment in Shreya Singhal vs. UOI (2013) 12 S.C.C. 73, whereby the apex court struck down two provisions namely section 66A (Punishment for sending offensive messages) of the IT Act and section 118(d) [causing annoyance in an indecent manner] of the Kerala Police Act as both suffered from vagueness and overbreadth.

The judgment delivered by Justice RF Nariman and Justice J Chelameswar had rightly pointed out, “What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.” One of the many points considered by the court before striking down section 66A of IT Act was that it purports to authorise the imposition of restrictions on the fundamental right contained in Article 19(1)(a) [freedom of speech and expression] in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action, thus opening up the possibility of it being applied for purposes not sanctioned by the Constitution.

The Bihar circular calls for action against persons making offensive comments against legislators and government officials. Police personnel could interpret this in multiple ways and find offences under the IPC to book anyone that simply criticises the government. The letter also suffers the same defect as did section 66A of IT Act struck down by the apex court, that is of overbreadth and vagueness.

Right to dissent

There is a lot of material that can be cited in support of the argument of freedom of speech and since we are dealing with criticism against the government, right to dissent is germane to the discussion.

A lecture was delivered by Justice Deepak Gupta, former Supreme Court judge, at the Supreme Court Bar Association in February 2020 speaking about the right to dissent where he said, “The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree. The right to disagree, the right to dissent and the right to take another point of view, would inherently in each and every citizen of the country.”

The right to dissent is the biggest right he had said and the most important one granted by the Constitution.

Even Justice DY Chandrachud, a judge at the Supreme Court had spoken about the right to dissent at the 15th PD Desai Memorial Lecture at the Gujarat high court. He called dissent a “safety valve” of democracy and that “blanket labelling” of dissent as anti-national or anti-democratic strikes at the “heart” of the country’s commitment to protect Constitutional values and promote deliberative democracy.

“Protecting dissent is but a reminder that while a democratically elected government offers us a legitimate tool for development and social coordination, they can never claim a monopoly over the values and identities that define our plural society,” he said. He deemed suppression of differences and silencing of popular and unpopular voices offering alternative or opposing views as a great threat to pluralism.

Evidently so, the Bihar circular on account of it being vague and overbroad severely threatens fundamental rights of speech and right to dissent. The circular in stating that action be taken against offensive posts aimed towards the government and not mentioning what kind of comments lie within the boundaries of freedom of speech, makes it an inadequate direction. It also makes the circular an unwarranted direction as it does not introduce any new procedure but merely calls for execution upon those provisions in penal law that have been in existence for a long time now, thus making it absolutely uncalled for. When there are more serious crimes to be dealt with, deserving the attention of the police, criticism faced by a state government may be the least of the concerns for law and order.

Related:

Objectionable comments against government, Bihar demands action

Kerala govt to withdraw controversial Sec 118A from Kerala Police Act

Will the new amendment to Kerala Police Act curb free speech?

Bihar circular on action against critics: Vague and disregards right to dissent

The circular issued by Bihar government asking police to take action against persons making objectionable or offensive comments aimed towards the government, goes against not just fundamental rights but also views held by the Supreme Court and its judges

Right to dissent

The latest circular/letter issued by the Economic Offences Wing of Bihar has sparked debates over how the JDU-BJP coalition heading the state is moving towards curbing freedom of speech on the internet. The letter is a reminder, and seemingly an action call to Bihar Police, to start acting on complaints against comments made on social media criticising the government and report them to the EOW, Bihar.

“The true test of democracy is its ability to ensure creation and protection of spaces where every individual can voice their opinion without the fear of retribution,” Justice DY Chandrachud had said in one of his lectures delivered at Gujarat High Court. Clearly, what the Bihar government seeks to do is in complete contrast to this view held by a Supreme Court judge.

The circular by Bihar Police's Economic Offences Unit (EOU) states, "It has regularly been coming to light that certain persons and organisations have been making offensive comments through social media and Internet against government, honourable ministers, MPs, MLAs and government officials as well, which is against prescribed law and comes under cybercrime laws. For this act, it seems appropriate to take action against such organisations and individuals".

There exist reasonable restrictions on freedom of speech and expression under the Indian Constitution that one needs to be mindful of and what the police should also look out for when booking persons basis complaints received by them to see whether the comment has any substance that it warrants action or will the action thwart one freedom of speech considering it does not violate the reasonable restrictions enshrined under Article 19(2). The police are however guided by the penal code and criminal procedures but often forget to look at constitutional and fundamental rights of persons they are acting against.

A recent example of police acting on a complaint without substance was in Madhya Pradesh where a comedian, Faruqui Munawar, and his team were put behind bars for a joke he never uttered but the complainant allegedly heard him practice before the show; one that insulted Hindu deities. Acting on this verbal complaint, the police arrested Munawar and his team and they still remain behind bars.

The circular seems like an attempt to replicate a similar model, of taking action against any person whose speech offends another, in Bihar’s case, the government. Be that as it may, what is important is whether it stands the test of constitutionality, whether it will tend to violate fundamental rights of people. The letter is an administrative diktat at best asking the Police to be more attentive and alert of complaints against comments made in criticism of the government. What triggered this action has been explained by The Wire in one of its articles where it is said that there are a number of YouTubers, social media influencers and local media platforms in Bihar who often criticise the government, and whose videos and posts go viral.

Freedom of speech

The foremost has to be the Constitution itself and while Article 19(1)(a) guarantees freedom of speech and expression clause 2 of the Article imposes restrictions in terms of the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense.

It is also important to bring in the debate against the offence of Sedition that still finds its place in the Indian Penal Code. But when the Constitution was being drafted, there was opposition in including the word sedition therein. K.M. Munshi, Member of the Drafting Committee had opined

“…a line must be drawn between criticism of Government which should be welcome and incitement which would undermine the security or order on which civilized life is based, or which is calculated to overthrow the State… As a matter of fact, the essence of Democracy is criticism of Government. The party system which necessarily involves an advocacy of replacement of one Government by another is its only bulwark; the advocacy of different system of government should be welcome because that gives vitality to a democracy”

While several Supreme Court judgements may be cited that have upheld freedom of speech and expression in its myriad manifestations including, freedom of press, expression through literature, art, cinema and so on, the most relevant one is the judgment in Shreya Singhal vs. UOI (2013) 12 S.C.C. 73, whereby the apex court struck down two provisions namely section 66A (Punishment for sending offensive messages) of the IT Act and section 118(d) [causing annoyance in an indecent manner] of the Kerala Police Act as both suffered from vagueness and overbreadth.

The judgment delivered by Justice RF Nariman and Justice J Chelameswar had rightly pointed out, “What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another.” One of the many points considered by the court before striking down section 66A of IT Act was that it purports to authorise the imposition of restrictions on the fundamental right contained in Article 19(1)(a) [freedom of speech and expression] in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action, thus opening up the possibility of it being applied for purposes not sanctioned by the Constitution.

The Bihar circular calls for action against persons making offensive comments against legislators and government officials. Police personnel could interpret this in multiple ways and find offences under the IPC to book anyone that simply criticises the government. The letter also suffers the same defect as did section 66A of IT Act struck down by the apex court, that is of overbreadth and vagueness.

Right to dissent

There is a lot of material that can be cited in support of the argument of freedom of speech and since we are dealing with criticism against the government, right to dissent is germane to the discussion.

A lecture was delivered by Justice Deepak Gupta, former Supreme Court judge, at the Supreme Court Bar Association in February 2020 speaking about the right to dissent where he said, “The right of freedom of opinion and the right of freedom of conscience by themselves include the extremely important right to disagree. The right to disagree, the right to dissent and the right to take another point of view, would inherently in each and every citizen of the country.”

The right to dissent is the biggest right he had said and the most important one granted by the Constitution.

Even Justice DY Chandrachud, a judge at the Supreme Court had spoken about the right to dissent at the 15th PD Desai Memorial Lecture at the Gujarat high court. He called dissent a “safety valve” of democracy and that “blanket labelling” of dissent as anti-national or anti-democratic strikes at the “heart” of the country’s commitment to protect Constitutional values and promote deliberative democracy.

“Protecting dissent is but a reminder that while a democratically elected government offers us a legitimate tool for development and social coordination, they can never claim a monopoly over the values and identities that define our plural society,” he said. He deemed suppression of differences and silencing of popular and unpopular voices offering alternative or opposing views as a great threat to pluralism.

Evidently so, the Bihar circular on account of it being vague and overbroad severely threatens fundamental rights of speech and right to dissent. The circular in stating that action be taken against offensive posts aimed towards the government and not mentioning what kind of comments lie within the boundaries of freedom of speech, makes it an inadequate direction. It also makes the circular an unwarranted direction as it does not introduce any new procedure but merely calls for execution upon those provisions in penal law that have been in existence for a long time now, thus making it absolutely uncalled for. When there are more serious crimes to be dealt with, deserving the attention of the police, criticism faced by a state government may be the least of the concerns for law and order.

Related:

Objectionable comments against government, Bihar demands action

Kerala govt to withdraw controversial Sec 118A from Kerala Police Act

Will the new amendment to Kerala Police Act curb free speech?

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Sunday

03

Jan

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Saturday

05

Dec

05 pm onwards

Rise in Rage!

North Gate, JNU campus

Thursday

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Nov

10 am onwards

Delhi Chalo

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IN FACT

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2020

Milestones 2020

In the year devastated by the Covid 19 Pandemic, India witnessed apathy against some of its most marginalised people and vilification of dissenters by powerful state and non state actors. As 2020 draws to a close, and hundreds of thousands of Indian farmers continue their protest in the bitter North Indian cold. Read how Indians resisted all attempts to snatch away fundamental and constitutional freedoms.
Migrant Diaries

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The 2020 COVID pandemic brought to fore the dismal lives that our migrant workers lead. Read these heartbreaking stories of how they lived before the pandemic, how the lockdown changed their lives and what they’re doing now.
Delhi HC

Hate Speech and Delhi Pogrom 2020

A spate of provocative speeches, that amount to hate speech in law and should be prosecuted allowed blood letting to spill on the streets of north east Delhi in February-March 2020
hashimpura

Hashimpura Massacre

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