Stop Treating Critics as Criminals: HRW to India

When it comes to democracy, liberty of thought and expression is a cardinal value that is of paramount significance under our constitutional scheme.
—Supreme Court of India, Shreya Singhal v. Union of India, March 24, 2015.

This report released by Human Rights Watch (HRW) on May 24, sharply indicts Indian authorities and the government

Freedom of expression is protected under the Indian constitution and international treaties to which India is a party. Politicians, pundits, activists, and the general public engage in vigorous debate through newspapers, television, and the Internet, including social media. Successive governments have made commitments to protect freedom of expression.

“Our democracy will not sustain if we can’t guarantee freedom of speech and expression,” Prime Minister Narendra Modi said in June 2014, after a month in office. Indeed, free speech is so ingrained that Amartya Sen’s 2005 book, The Argumentative Indian, remains as relevant today as ever.

Yet Indian governments at both the national and state level do not always share these values, passing laws and taking harsh actions to criminalize peaceful expression. The government uses draconian laws such as the sedition provisions of the penal code, the criminal defamation law, and laws dealing with hate speech to silence dissent. These laws are vaguely worded, overly broad, and prone to misuse, and have been repeatedly used for political purposes against critics at the national and state level.

While some prosecutions, in the end, have been dismissed or abandoned, many people who have engaged in nothing more than peaceful speech have been arrested, held in pre-trial detention, and subjected to expensive criminal trials. Fear of such actions, combined with uncertainty as to how the statutes will be applied, leads others to engage in self-censorship.

In many cases, successive Indian governments have failed to prevent local officials and private actors from abusing laws criminalizing expression to harass individuals expressing minority views, or to protect such speakers against violent attacks by extremist groups. Too often, it has instead given in to interest groups who, for politically motivated reasons, say they are offended by a certain book, film, or work of art. The authorities then justify restrictions on expression as necessary to protect public order, citing risks of violent protests and communal violence. While there are circumstances in which speech can cross the line into inciting violence and should result in legal action, too often the authorities, particularly at the state level, misuse or allow the misuse of criminal laws as a way to silence critical or minority voices.

This report details how the criminal law is used to limit peaceful expression in India. It documents examples of the ways in which vague or overbroad laws are used to stifle political dissent, harass journalists, restrict activities by nongovernmental organizations, arbitrarily block Internet sites or take down content, and target religious minorities and marginalized communities, such as Dalits.

The Indian authorities routinely use vaguely worded, overly broad laws as political tools to silence and harass critics.

The report identifies laws that should be repealed or amended to bring them into line with international law and India’s treaty commitments. These laws have been misused, in many cases in defiance of Supreme Court rulings or advisories clarifying their scope. For example, in 1962, the Supreme Court ruled that speech or action constitutes sedition only if it incites or tends to incite disorder or violence. Yet various state governments continue to charge people with sedition even when that standard is not met.

While India’s courts have generally protected freedom of expression, their record is uneven. Some lower courts continue to issue poorly reasoned, speech-limiting decisions, and the Supreme Court, while often a forceful defender of freedom of expression, has at times been inconsistent, leaving lower courts to choose which precedent to emphasize. This lack of consistency has contributed to an inconsistent terrain of free speech rights and left the door open to continued use of the law by local officials and interest groups to harass and intimidate unpopular and dissenting opinions.

The problem in India is not that the constitution does not guarantee free speech, but that it is easy to silence free speech because of a combination of overbroad laws, an inefficient criminal justice system, and the aforementioned lack of jurisprudential consistency. India’s legal system is infamous for being clogged and overwhelmed, leading to long and expensive delays that can discourage even the innocent from fighting for their right to free speech.

The Sedition Law
The sedition law, section 124A of the Indian Penal Code (IPC), is a colonial-era law that was once used against political leaders seeking independence from British rule. Unfortunately, it is still often used against dissenters, human rights activists, and those critical of the government.

The law allows a maximum punishment of life in prison. It prohibits any signs, visible representations, or words, spoken or written, that can cause “hatred or contempt, or excite or attempt to excite disaffection” toward the government. This language is vague and overbroad and violates India’s obligations under international law, which prohibit restrictions on freedom of expression on national security grounds unless they are strictly construed, and necessary and proportionate to address a legitimate threat. India’s Supreme Court has imposed limits on the use of the sedition law, making incitement to violence a necessary element, but police continue to file sedition charges even in cases where this requirement is not met.

Convictions for sedition are rare, but this apparently has not deterred the authorities from booking and arresting people for it. According to the government’s National Crime Records Bureau, which started collecting specific information on sedition in 2014, that same year 47 cases were registered across the country, 58 people were arrested, and one person was convicted. The official 2015 data is not yet available, but, media watchdog website

The Hoot reported a significant increase in arrests in the first quarter of 2016. 11 cases were booked against 19 people, in the first three months of 2016, compared to none during the same period in the previous two years.
In February 2016, police in Delhi arrested Kanhaiya Kumar, a student union leader at the Jawaharlal Nehru University, after members of the student wing of the ruling Bharatiya Janata Party (BJP) accused him of making anti-national speeches during a meeting organized on campus. The public meeting was held on February 9 to protest the 2013 hanging of MohammadAfzal Guru, who was convicted for his role in a December 2001 attack on parliament that killed nine people. Afzal Guru’s execution remains a matter of intense debate in the country. The Delhi police admitted to the court that Kumar had “not been seen” raising any anti-national slogans in the video footage available. The Delhi High Court granted him bail in March. Five more students were booked in the case; two, Umar Khalid and Anirban Bhattacharya, were also arrested and later released on bail.

However, despite the police’s admission that they had no evidence of anti-national sloganeering by Kumar, and certainly no evidence of incitement to violence, the government has yet to admit that the arrests were wrong. Kumar’s arrest thus reveals how divided the country remains over the meaning of tolerance and the imperative of legal protection of peaceful, if disfavored, expression.

There are many other prominent examples of use of the sedition provision to silence political speech. In May 2012, for example, police in Tamil Nadu filed sedition complaints against thousands of people who had peacefully protested the construction of a nuclear power plant in Kudankulam. According to S.P. Udaykumar, founder of the People’s Movement Against Nuclear Energy, which led the struggle against the project, 8,956 people face allegations of sedition in 21 cases. A public hearing organized by activists belonging to the Chennai Solidarity Group in May 2012, which included a former chief justice of the Madras and Delhi High Courts, found that the state had denied the protesters both freedom of speech and freedom of assembly.

A report by a different fact-finding team in September 2012 alleged that state authorities had used “unjustified” force against peaceful protesters to silence dissent. As that report concluded:
If people who have resisted and protested peacefully for a year can be charged with sedition and waging war against the nation in such a cavalier way as has been done here, what is the future of free speech and protest in India?

In September 2012, the authorities in Mumbai arrested political cartoonist Aseem Trivedi on sedition charges after a complaint that his cartoons mocked the Indian constitution and national emblem. The charges were dropped a month later following public protests and furor on social media.

In March 2014, authorities in Uttar Pradesh charged over 60 Kashmiri students with sedition for cheering for Pakistan in a cricket match against India. The Uttar Pradesh government dropped the charges only after seeking a legal opinion from the law ministry. In August 2014, the authorities in Kerala charged seven youth, including students, with sedition, acting on a complaint that they refused to stand up during the national anthem inside a movie theater.

In October 2015, authorities in Tamil Nadu state arrested folk singer S. Kovan under the sedition law for two songs that criticized the state government for allegedly profiting from state-run liquor shops at the expense of the poor.

Criminal Defamation
Human Rights Watch believes that criminal defamation laws should be abolished, as criminal penalties infringe on peaceful expression and are always disproportionate punishments for reputational harm. Criminal defamation laws are open to easy abuse, resulting in very harsh consequences, including imprisonment. As the repeal of criminal defamation laws in an increasing number of countries shows, such laws are not necessary for the purpose of protecting reputations.

The frequent use of criminal defamation charges by the Tamil Nadu state government, led by Chief Minister Jayalalithaa, against journalists, media outlets, and rival politicians is illustrative of how the law can be used to criminalize critics of the government. The Tamil Nadu government reportedly filed nearly 200 cases of criminal defamation between 2011 and 2016. The Tamil-language magazines Ananda Vikatan and Junior Vikatan, both published by the Vikatan group, face charges in 34 criminal defamation cases, including for a series of articles assessing the performance of each cabinet minister.
In November 2015, while staying a criminal defamation case by the Tamil Nadu state government against a politician from an opposition party, the Supreme Court questioned the large number of such cases coming from the state.

The judges said:
These criticisms are with reference to the conceptual governance of the state and not individualistic. Why should the state file a case for individuals? Defamation case is not meant for this.

In recent years corporations and businesses have also used criminal defamation laws to suppress critical speech and harass journalists and writers. The Indian Institute of Planning and Management, a business school with its headquarters in New Delhi, filed several criminal (and civil) defamation lawsuits to prevent the publication of content critical of the institute.

For example, in 2009, IIPM filed a criminal defamation complaint against Maheshwer Peri, publisher of the Outlook and Careers360 magazines, for an article on private educational institutions that were allegedly deceiving students. The article mentioned IIPM and was the first in a series of investigative articles questioning the authenticity of claims made by IIPM. The suits were often filed in remote parts of the country such as Silchar, Assam, where neither IIPM nor the defendant were based nor had any presence.

By January 2016, after the courts quashed a couple of criminal defamation cases against Peri, IIPM had withdrawn all legal cases against him. Peri told Human Rights Watch: “Criminal defamation is used to threaten and bully rather than to seek justice, and should be done away with.”

In May 2016, a two-justice bench of the Supreme Court, upheld the constitutionality of India’s criminal defamation law, saying: “A person's right to freedom of speech has to be balanced with the other person's right to reputation.” The court did not explain how it concluded that the law does not violate international human rights norms, which do not allow imprisonment for criminal defamation, or offer a clear or compelling rationale why civil remedies are insufficient for defamation in a democracy with a functioning legal system.

Laws Regulating the Internet
Indian authorities appear to be unnerved by the explosion of the Internet, and have stumbled in their efforts to regulate it.
Laws to regulate social media, such as India’s Information Technology Act, can and do easily become tools to criminalize speech, often to protect powerful political figures. Section 66A of that act, which criminalizes a broad range of speech, has been repeatedly used to arrest those who criticize the authorities and to censor content.

For example, in May 2014, five students were temporarily detained in Bangalore for allegedly sharing a message on the mobile application “WhatsApp” that was critical of newly elected Prime Minister Narendra Modi. In April 2012, Ambikesh Mahapatra, a professor of chemistry at Jadavpur University in the eastern state of West Bengal, was arrested under section 66A for forwarding an email featuring a spoof of the state’s chief minister, Mamata Bannerjee.

A month later, police in Puducherry arrested a businessman for posting messages on Twitter questioning the wealth amassed by the son of the country’s then-finance minister.
Section 66A was declared unconstitutional by the Indian Supreme Court in March 2015. The government has said that it is examining the Supreme Court judgment and may enact an amended version of section 66A to bring it into line with constitutional requirements. The Supreme Court judgment lays down important safeguards for the future of Internet freedom in India. While aspects of the judgment relating to the blocking of Internet content raise concerns (detailed later in this report), any new laws should be consistent with the safeguards set forth in the court’s ruling and with international human rights standards.

Counter Terrorism Laws
Counterterrorism laws such as the Unlawful Activities (Prevention) Act (UAPA) have also been used to criminalize peaceful expression. In India, counterterrorism laws have been used disproportionately against religious minorities and marginalized groups such as Dalits. Between 2011 and 2013, the authorities in Maharashtra arrested six members of Kabir Kala Manch, a cultural group, under counterterrorism laws, claiming that they were secretly members of the Communist Party of India (Maoist), a banned organization. The authorities produced no evidence of such membership, however, and the members dismiss the claim as entirely unfounded. The Pune-based group of singers, poets, and artists consists largely of Dalit youth and uses music, poetry, and street plays to raise awareness about issues such as oppression of Dalits and tribal groups, social inequality, corruption, and Hindu-Muslim relations.

Those charged with violating the counterterrorism laws are considered “anti-national,” so simply being charged can have a severe impact on the lives of the accused and their families, even if they are ultimately judged innocent. Mumbai-based lawyer Vijay Hiremath, who has worked on counterterrorism-related cases, told Human Rights Watch:

They will be under surveillance and police will keep a watch on them. It will be difficult for them to lead normal lives even after acquittal because whatever they do will be looked at with a lot of suspicion.

The Process is the Punishment
Going through the legal process in India can often be a punishment in itself. Defendants in the country’s criminal justice system often face lengthy, drawn-out proceedings. In some cases, judges also appear to be poorly trained in issues of freedom of expression and fail to heed Supreme Court guidance when it comes to imposing limits on peaceful expression.

While the higher courts, and particularly the Supreme Court, often end up dismissing cases brought under laws criminalizing peaceful expression, the dismissals are often too late to protect those arrested or charged from serious consequences. Some offenses under these laws can be non-bailable and the accused may be taken into pre-trial custody. Laws dealing with sedition, terrorism, and national security extract a heavy price from the accused during the trial process. Legal proceedings can take a heavy toll on the financial resources of the accused.

For instance, the Official Secrets Act, a law that criminalizes the disclosure, possession, or receipt of a wide range of documents or information without requiring proof that such acts threaten national security or public order, fosters a culture of secrecy that runs counter to the public’s interest in access to information about government activity. Journalists covering defense or intelligence matters are particularly at risk of being charged under the law. The penalty for “spying” under the law allows for imprisonment of up to 14 years. While some of the cases filed under the Official Secrets Act are ultimately dismissed by the higher courts, the dismissal does not obviate the harm suffered by those charged.

While the Official Secrets Act is not as frequently used as some other laws discussed in this report, such as sedition or criminal defamation, it has a serious chilling effect. The accused can end up spending months, or even years, in jail without being granted bail. One of the most prominent cases of misuse of this law is that of journalist Iftikhar Gilani. His 2002 arrest also illustrates the toll the process takes on the accused. Gilani was accused of possessing a classified document even though the document was available both on the Internet and in public libraries in Delhi. He was acquitted in January 2003, but spent seven months in jail without bail while the case was pending. Gilani said it took four months for him to even get a hearing for bail, and then his application was rejected. Those accused under the OSA are considered serious enemies of the state, which makes obtaining bail extremely difficult.

“By the time you prove that the material you have is not a secret, you may have been in jail for many years. That’s the kind of bias judges have when someone is charged with OSA,” said Trideep Pais, a lawyer who has dealt with Official Secrets Act cases in Delhi.

Other laws which criminalize peaceful expression can be quite punishing, too. For instance, criminal defamation cases filed by Tamil Nadu state have been dragging on for years and require the accused, many of whom are journalists and editors, to appear in court every couple of weeks. At most hearings, the case is simply adjourned and the date for a new hearing is set. This costs both time and money, as the editor of Junior Vikatan magazine, P. Thirumavelan, who faces several cases himself, said.

The government is not interested in pursuing a case. The intention of the government is only to create a fear psychosis among journalists and newspapers. Because if the government were really serious, they would counter with evidence in a court of law.

According to media lawyer Gautam Bhatia, criminal cases restrict speech to a far greater extent than civil cases, by placing onerous burdens upon the accused. In an article on the news website, Bhatia wrote:

The threat of arrest at any moment, and the possibility of eventual imprisonment exercise a deep and pervasive chilling effect upon would-be speakers; the requirement that the accused must be present at the place of hearing, coupled with the fact that there is no limit to the number of cases that can be filed, is an open invitation to harassment. And even if the accused has a good defence, he is only allowed to bring up his defence after the trial commences. Consequently, in even the most frivolous of cases, the accused must face the legal process throughout the long pre-trial stage, which itself has the potential to drag on for months, if not years.

As a result, those faced with even unfounded criminal charges often withdraw the “offending” words rather than endure the often prolonged legal, financial, and personal impact of those charges. On the other hand, there is little consequence for the complainant if the case is found to be frivolous.

The Heckler’s Veto
Several Indian laws prohibit “hate speech,” such as speech that causes enmity between different groups of people, or speech that insults religion. While the goal of preventing inter-communal strife is an important one in a country as diverse as India, that goal should be pursued through prompt and vigorous prosecution of perpetrators of violent acts and incitement to violence, not through broadly worded laws limiting expression.

India’s hate speech laws are so broad in scope that they infringe on peaceful speech and fail to meet international standards. Intended to protect minorities and the powerless, these laws are often used at the behest of powerful individuals or groups, who claim that they have been offended, to silence speech they do not like. The state too often pursues such complaints, thereby leaving members of minority groups, writers, artists, and scholars facing threats of violence and legal action.

The example of Maqbool Fida Husain, among India’s best-known artists, is an emblematic case of public intolerance. Husain was forced into exile after Hindu right-wing groups targeted him, accusing him of painting nude pictures of Hindu gods and goddesses, and thus offending their sentiments. Hardline Hindu groups attacked Husain’s house and art galleries which exhibited his works, but the governments in Gujarat, Maharashtra, and Delhi states failed to protect him or his work. Instead, Bal Thackeray, a senior leader from the ruling Shiv Sena party in Maharashtra state, endorsed the attack on Husain’s home in Mumbai in 1998, saying, “If Husain can enter Hindustan [India]…why can't we enter his house?” Private individuals filed cases against him in different cities across the country under criminal hate speech and obscenity laws, forcing him to travel around the country to answer the complaints.

The Delhi High Court in 2008 upheld Husain’s right to free speech and dismissed charges of obscenity and of hurting religious feelings against him in a case related to the “Bharat Mata” painting. The court said:
There should be freedom for the thought we hate…It must be realised that intolerance has a chilling, inhibiting effect on freedom of thought and discussion. The consequence is that dissent dries up. And when that happens democracy loses its essence.

Despite a ruling by the Indian Supreme Court that freedom of expression cannot be suppressed on account of threats of violence because “that would be tantamount to negation of the rule of law and a surrender to black mail and intimidation,” the police routinely arrest individuals based on the reactions to their speech. For instance, in November 2012, Shaheen Dhada and Rinu Srinivasan, both 21 years old, were arrested in Maharashtra for a Facebook post questioning the shutdown of Mumbai following the death of a powerful political leader. The police acted after the politician’s supporters complained and mobs engaged in violent attacks.

Similarly, Shirin Dalvi, editor of an Urdu newspaper in Mumbai, was charged by police with “outraging religious feelings” with “malicious intent” in January 2015 after numerous First Information Reports (FIRs, or criminal complaints) were filed by individuals and Muslim groups offended by her reprinting of a cartoon originally published by the controversial French magazine Charlie Hebdo. Dalvi said she had to go into hiding and temporarily move away from her house after her release on bail to escape the constant harassment and threats on the phone. The cases against her are pending at time of writing.

In January 2015, local caste groups in Namakkal village in Tamil Nadu protested against a book by resident Tamil author Perumal Murugan. They burned copies of his book, shut down shops, and asked the police to take action against him. Police and district administration officials, instead of protecting Murugan from angry mobs, asked him to tender an unconditional apology. As a result of the harassment, Murugan decided to give up his writing career and withdraw all his works from publication.

International Law
In 1979, India ratified the International Covenant on Civil and Political Rights, which sets forth internationally recognized standards for the protection of freedom of expression. Yet, as detailed here, a series of Indian legal provisions, some of them used by prosecutors and litigants on a regular basis, continue to restrict speech in ways inconsistent with that covenant. In some cases, the Indian Supreme Court has properly issued rulings narrowing the scope of the laws, but they continued to be misused, making clear that the laws themselves need to be amended or repealed if India is to comply with its international obligations.

Importantly, the consequences of violations go beyond improper limits on speech. As former UN Special Rapporteur on freedom of expression Frank La Rue has stated, freedom of expression is not only a fundamental right but also an “enabler” of other rights, “including economic, social and cultural rights, such as the right to education and the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications, as well as civil and political rights, such as the rights to freedom of association and assembly…. [A]rbitrary use of criminal law to sanction legitimate expression constitutes one of the gravest forms of restriction to the right, as it not only creates a ‘chilling effect,’ but also leads to other human rights violations.”

Key Recommendations
Indian laws and practices that criminalize peaceful expression are inconsistent with its international legal obligations, undermine rather than strengthen efforts to combat communal violence, and, because freedom of expression is an enabler of other rights, threaten to erode human rights protections more generally.

Human Rights Watch recommends that India:

♦ Develop a clear plan and timetable for the repeal or amendment of laws that criminalize peaceful expression as detailed at the end of this report and, where legislation is to be amended, consult thoroughly with civil society groups in a transparent and public way.
♦ Drop all prosecutions and close all investigations into cases where the underlying behavior involved peaceful expression or assembly.
Train the police to ensure inappropriate cases are not filed with courts. Train judges, particularly in the lower courts, on peaceful expression standards so that they dismiss cases that infringe on protected speech. 



Related Articles