The Union government’s assault on free speech

While charging students, activists, comedians and journalists under criminal and anti-terrorism laws, the government’s strategy to curb criticism is palpable. Its battle against free speech is often tainted with the communal element.

Comedians Kunal Kamra and Munwar Faruqui. They face some form of criminal proceedings for the work they do.

“In the creation of comedy, it is paradoxical that tragedy stimulates the spirit of ridicule; because ridicule, I suppose, is an attitude of defiance,” Charlie Chaplin famously wrote in his autobiography. Chaplin was acutely aware of the tragedy that authoritarian states perpetuate: an atmosphere of fear, abuse and division. He decided to react to oppression with political satire.

This is an important political function that comedy performs. It questions, imitates and ridicules state violence. It holds governments accountable to their actions. Humour is an intelligent expression of dissent. In India, comedians such as Kunal Kamra and Munawar Faruqui and cartoonists such as Rachita Taneja participate in the same art. All of them face some form of criminal proceedings against them for the work they do. Munawar was in jail for, reportedly, jokes he did not even make, on the basis of a complaint filed by the son of a Bhartiya Janata Party (BJP) MLA. Kunal and Rachita are proceeded against by the Supreme Court for contempt of court. This says something stark about the vulnerability of free speech in contemporary politics. The first threat unsurprisingly comes from the current political executive. The second, ironically, comes from the courts, which are institutionally and constitutionally designed to check the executive excesses.

The response of the executive to lawful speech takes several forms, from criminalising dissent to outright censoring. While charging students, activists, comedians and journalists under criminal and anti-terrorism laws, the strategy of the government to curb criticism is palpable.

The battle of the government against free speech is often tainted with the communal element. On the one hand, the vilification of Muslims through shows such as ‘UPSC Jihad’ or tags such as ‘Corona Jihad’, which might very well constitute hate speech, is encouraged. On the other, any mild criticism against the government or its policy is subject to criminal charges. While prosecution against Arnab Goswami is publicly condemned by Union Ministers, no such protection is extended to journalists who disagree with the establishment. This inconsistency has served to promote the government’s Hindu nationalist agenda. It has also narrowed the right to free speech to those opinions the government is pleased with.

The latest illustration in the assault against free speech is the government’s response to protests against the new farm laws. It is a classic case of how liberal democracies should not treat criticism. A closer watch of the Centre’s approach to the protest of farmers would reveal how the idea of constitutionally guaranteed freedom is distorted by the state. First, instead of allowing peaceful assembly, the state focussed on curtailing it altogether by building barricades on the borders of protest sites, with nail beds and concrete walls. The barricades were not just material obstruction. They symbolise state violence in a singular image. Along with curtailment of the Internet, electricity and water supply, they epitomised the total suspension of Articles 19(1) and 21 of the Constitution, which promise freedom of expression and dignity of life. The annihilation of liberty for the protesting farmers was almost complete by infringing all forms of free expression: the freedom to speak, assemble, associate, to travel, and to move around.

Second, the state actively began to block the protests. Many protesters were arrested. Violence erupted on many occasions, and farmer leaders alleged that the violence was caused because of infiltration by the state and its allies. To prevent more farmers from travelling to Delhi, several of them were placed under house arrest in Agra to cut at the root of the protest.

The third and latest method was to prevent critical reporting on the movement by censorship and threats of prosecution. The state’s attempt to crush the protest and resistance evoked international criticism. As on February 2, at least eight senior journalists who reported about the deaths in the protest faced criminal charges for sedition and communal disharmony. The government has begun to censor content on social media through removal requests. At the time of writing this article, it was reported that Twitter accounts of media outlets such as The Caravan had been suspended following a request from the Ministry of Home Affairs. Though the accounts were later restored, this incident showed the tipping point where the government initiated self-censoring on social media.

The current status of free speech in India prompts a comparison with the national emergency in the 1970s. Here, one finds a constitutional paradox. By way of the 42nd amendment to the Constitution, the Indira Gandhi regime provided for extensive powers to the government, while limiting the scope for judicial review. This enabled severe restrictions on the fundamental rights guaranteed by the Constitution. The Janata Party, consisting of the Bharatiya Jana Sangh, the predecessor of the Bharatiya Janata Party (BJP), came to power in 1977 to revoke the changes, to a substantial extent, by enacting the 44th amendment. As a result, formal proclamation of the emergency and suspension of fundamental rights cannot take place any more without the nod of the Cabinet. The court’s power to review state action was restored to its original form. Significantly, the amendment tried to restore valuable elements into the democratic process, while decisions are taken by the executive. The amendment deleted the term ‘internal disturbances’ from Article 352 of the Constitution, which thus became no longer a ground for proclamation of emergency. Now, when the Jana Sangh assumed power in its new incarnation as the BJP, all attacks on the Constitution have been informal yet real. Without a formal amendment, it has nullified the exercise of many fundamental rights. In its curtailment of peaceful agitation and political debate, contemporary India unfortunately is close to a de facto emergency. The new dispensation considers every protest as an “internal disturbance” and acts upon it vigorously.

Judicial approach

The court’s function is essentially conceived as counter majoritarian. When the executive unjustifiably restricts speech, courts are expected to guard this liberty. Some history might be helpful here. In 1950, the Supreme Court was confronted with two cases on free speech. The first was the challenge against the ban imposed by the Madras government on the magazine Cross Roads ( Romesh Thappar vs State of Madras ). The second was the challenge against an executive order imposing prior restraint on Organiser ( Brij Bhushan vs State of Delhi ). Interestingly, both petitioners stood at the extreme opposite ends of the political spectrum. Cross Roads was a communist magazine run and edited by Romesh Thappar. Organiser is the journal of the Rashtriya Swayamsewak Sangh (RSS). However, both relied on the same political value to buttress their case: the right to free speech. This is certainly the virtue of this freedom. It does not discriminate in favour of the liberal, against the conservative. It allows for disagreement, offence, ridicule and debate.

In both cases, the court ruled against the state in favour of the petitioners’ right to speech. In Thappar, Chief Justice Patanjali Sastri wrote that only narrow considerations can restrict speech since “freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible.”

Seventy years later, in January 2021, the Madhya Pradesh High Court was called upon to consider the application seeking bail by Munawar Faruqui. Unusually enough, a comedian was arrested for jokes he perhaps imagined—closely resembling the secret police in George Orwell’s novel 1984 , which punishes people for their thoughts. The High Court had said, without any hesitation, in a bail hearing where courts typically are not to determine the guilt of the accused: “Such people must not be spared.” These two incidents represent the contrast between the approaches of the courts towards free speech. While the first shows how the counter majoritarian court quickly came to the rescue of the Constitution, the second shows a court as intolerant as the government itself.

This is the general trend, with few exceptions, of the conduct of constitutional courts in ensuring the protection to freedom of speech. By and large, the courts have assumed the role of executive courts thereby becoming incapable of checking the majoritarian onslaught.

Bail applications or petitions to quash criminal charges of numerous authors, students and journalists, including Sudha Bharadwaj, Varavara Rao and Anand Teltumbde have been rejected by the Supreme Court. There has been no recognition of the political nature of any arrest, of the state’s systematic methodology to erase disapproval. Even at the time of a global pandemic, the Supreme Court refused to restore 4G Internet in parts of Jammu and Kashmir, in spite of the free speech claim.

Apart from this hands-off approach of refusing to enforce the constitutional right of expression, courts have also started to threaten free speech by themselves. Examples include initiating contempt of court proceedings against comedians and lawyers. Contempt powers now are capable of having a chilling effect, since any criticism against the court has the potential to invite a criminal prosecution. This reflects poorly on the court’s institutional integrity and respect for constructive criticism.

Courts have also begun to impose onerous conditions restricting speech as a condition of bail. For example, the Kerala High Court granted bail to Rehana Fathima in November 2020 in a case concerning an alleged video upload of cooking cow-meat but restricted her from using social media altogether. A person who was charged with making remarks against Uttar Pradesh Chief Minister Yogi Adityanath was also prohibited from using social media by the Allahabad High Court as a bail condition. Such prohibition, apart from its precarious legal basis, directly harm speech. The fact that this censorship comes from the court itself sends dangerous signals. It has weakened the public credibility of the courts in general.

Free speech in India, therefore, faces multiple attacks from both the executive and the judiciary. No dictatorial regime can claim permanency, as history teaches us. There are, no doubt, changes for the good, as indicated by a considerable section of the population. Freedom is a political imperative. Surely will there be a day when the country looks back and thanks those who helped the resurrection of its democracy, and the right to free speech with it. It will thank the opposing politicians and farmers for asking difficult questions to the executive, the independent journalists for defying state violence, and the comedians for political satire. History, however, will not be kind to an authoritarian government that censors speech and courts that fail to restore it.

Kaleeswara m Raj and Thulasi K. Raj are lawyers at the Supreme Court of India.