Why free speech is losing in India
With no clear lines drawn between free and unlawful speech, there is a growing sense of unease at speaking out fearlessly
There is freedom of speech but we cannot guarantee freedom after speech” — Ugandan dictator Idi Amin Dada. India in 2022 is hardly the turbulent Uganda of the 1970s, but there is growing evidence of an ominously creeping democratic dictatorship that afflicts Indian public life across the political divide. The immediate casualty in a Republic of perpetually offended sentiments is free speech, increasingly hostage to a cycle of punitive action caused by a vengeful political leadership, partisan police, and a weak judiciary.
In Maharashtra, a young actor spent 40 days in jail for sharing an objectionable post about Nationalist Congress Party leader Sharad Pawar; in Gujarat, a filmmaker, who had reportedly shared old pictures of Union home minister Amit Shah with an officer later accused of corruption, was arrested for allegedly insulting the national flag; in West Bengal, a YouTuber was arrested for allegedly abusing chief minister (CM) Mamata Banerjee; in Uttar Pradesh (UP), an 18-year-old schoolboy was arrested for posting an “offensive” image of CM Yogi Adityanath on social media.
Each of these instances — and many more — follows a familiar pattern of abuse of power. Criminal complaints filed by a proxy of a vindictive ruling authority are acted upon by the police with haste, and arrests are made under the wide ambit of Section 153 of the Indian Penal Code (IPC) — the provision includes acts likely to disturb public tranquillity. The accused is then produced before a lower court magistrate who usually rejects bail. Within days, more first information reports (FIRs) are filed. In most cases, the charges are specious, but as the Chief Justice of India, NV Ramana, recently lamented, “the process is the punishment”.
When untrammelled power politics is injected with a dose of religion, the mix becomes even more toxic because it draws in Section 295 of the IPC by attracting the offence of “hurt” religious sentiments. The case of Alt News co-founder Mohammed Zubair is a classic example. Arrested initially by Delhi Police for an innocuous fouryear-old tweet, Zubair was taken from one court to another as FIRs against him kept piling up. Finally, it required the Supreme Court (SC) to free him and warn the police against the mala fide use of the power of arrest.
Unfortunately, even when the SC uses its powers to stop brazen State overreach and reaffirms the “bail not jail” principle, it’s in the crosshairs of increasingly polarised public opinion and self-defeating whataboutery. When Zubair was released on bail and protected from multiple FIRs, a slanted campaign questioned why another bench of the same SC hadn’t provided similar protection to Nupur Sharma, the former Bharatiya Janata Party spokesperson who made inflammatory remarks about the Prophet during a TV debate. The attempted equivalence is flawed: Zubair’s liberty was at stake, having spent 24 days in jail, while Sharma has not been arrested. Instead, she has been provided State protection.
Neither a Zubair nor a Sharma ought to be arrested. The former’s tweets may appear offensive to some, but they cannot be seen as promoting religious hatred willfully: If anything, his tweets only expose the hatemongers across communities who speak out with ever greater impunity. A rabble-rousing Sharma may have crossed the line in a TV debate, but to seek her arrest for blasphemy is to exploit an outdated colonial law. Once she apologised, the matter should have been closed. Instead, the greater responsibility rests on the TV channels that seek out such shrill talk only to boost their viewership ratings.
Ironically, during the Zubair hearings in the SC, the additional solicitor general (ASG) SV Raju defended Bajrang Muni, a mahant, who has threatened the rape of Muslim women by claiming that he was a “respected” religious leader. “When you call a religious leader a hatemonger, it raises problems,” claimed the ASG. Such an egregious defence of a serial offender should have been called out immediately. Sadly, caught between an intolerant, despotic political class that seeks to crush dissent on the one hand, and rabid warring religious groups on the other, free speech is now a matter of political convenience.
The spread of unregulated social media hasn’t helped matters either. Meant to democratise public opinion, the reality is of a shrinking universe for any rational dialogue: Abuse, slander, and hate-spewing content that can incite violence is on the rise. In 2020, official data shows that as many as 1,834 people were arrested for their statements and acts, often for social media posts.
With no clear lines drawn between free and unlawful speech, there is a growing sense of unease at speaking out fearlessly. But if the legal and political elite won’t walk the talk, then enlightened citizens must. Recall how in 1988, when Rajiv Gandhi’s government tried to bulldoze a defamation bill that gave sweeping powers to the State to curb “criminal imputation” and “scurrilous writings”, there were unified street protests led by the media fraternity. The widespread public outrage worked: Gandhi was forced to withdraw the bill. How many editors or civil society groups will raise their voices today when free speech is under sustained assault?
Post-script: At a recent media conclave, Congress MP and senior lawyer, Abhishek Manu Singhvi, expressed concern about tweeting contentious issues for fear of attracting a criminal complaint. When the country’s top lawyer is worried about being ensnared by malevolent politics and a rotting criminal justice system, what hope do average citizens have?