A case of freedom

Two recent judicial interventions on the exercise of freedom of expression have given rise to some uneasiness.

in New Delhi

JUDGE Navita Kumari Bagha, Metropolitan Magistrate of the Patiala Courts, New Delhi, delivered on November 27 a 12-page order that sought to reverse years of free-speech jurisprudence articulated in a number of cases by the Supreme Court. The magistrate ordered the Delhi Police to register a first information report (FIR) against the writer-activist Arundhati Roy, the Hurriyat leader Syed Ali Shah Geelani, the revolutionary poet Varavara Rao, Delhi University Professor S.A.R. Geelani, Kashmir University law professor Sheikh Shaukat Hussain and two others for allegedly making anti-India statements at a convention on Kashmir, Azadi: The only Way, organised in New Delhi on October 21.

The magistrate found that there was prima facie cogent evidence against the accused for an FIR to be registered, and directed the police to file a compliance report on January 6, 2011. Earlier, the magistrate had rejected the status report submitted by the Delhi Police on the complaint against the accused suggesting that they made no inflammatory speeches and that no offence relating to sedition and other charges could be made out against them.

The complainant, Sushil Pandit, alleged that the police had not taken any action on the complaint filed by Roots in Kashmir, an organisation representing displaced Pandits of Kashmir, against the said speakers at the Tilak Marg police station on October 28.

The magistrate's order has surprised observers. Indeed, the Delhi Police, in its status report, had drawn her attention to the fact that the essential ingredients of sedition under Section 124A of the Indian Penal Code were missing in the speeches cited by Sushil Pandit, an advertising professional who worked with the Bharatiya Janata Party.

Under Section 124A of the IPC, whoever attempts to bring into hatred or contempt or excites disaffection towards the government established by law in India shall be punished with imprisonment for life, to which fine may be added. This harsh provision is, however, tempered by two crucial explanations.

One explanation, given under this provision, says that comments expressing disapprobation of the measures of the government with a view to obtaining their alteration by lawful means, without exciting hatred, contempt or disaffection, do not constitute an offence under this section. Another explanation says comments expressing disapprobation of the administrative or other actions of the government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

These explanations make it clear, the Supreme Court has held in Kedar Nath Singh vs State of Bihar, a landmark case decided in 1962, that criticism of public measures or comment on governmental action, however strongly worded, if within reasonable limits and consistent with the fundamental right to freedom of speech and expression, is not affected by this provision. It is only when the words have the pernicious tendency or intention to create public disorder or disturbance of law and order that the law steps in.

The court further held that Section 124A and Section 505 (punishing statements conducive to public mischief) of the IPC should be limited in their application to acts involving intention or tendency to create disorder or disturbance of law and order or incitement to violence.

Magistrate Navita Kumari, in her order, made no reference to this landmark case, which was decided by a Constitution Bench of the Supreme Court. Nor did she record in her order any prima facie finding that any of the accused, in their speeches, had incited violence. Instead, she concluded that the complaint disclosed commission of cognisable offences.

In another recent judicial intervention, a Supreme Court Bench reprimanded the activist Teesta Setalvad for having approached the United Nations forum on human rights about the Gujarat riots. On December 2, the Bench, comprising Justices D.K. Jain, P. Sathasivam and Aftab Alam, took exception to her sending two letters, dated October 5 and October 7, to the United Nations High Commission on Human Rights based in Geneva.

Senior advocate and amicus curiae Harish Salve informed the Bench that the Special Investigation Team (SIT) probing the 2002 Gujarat carnage cases was disturbed over the constant airing of grievances by her to the international body. The letters, addressed to SIT Chairman R.K. Raghavan, complained about poor witness protection in the Godhra cases and even contained information on how her former aide, Rais Khan, was bought over by the other side. Informed sources suggested that the Committee for Justice and Peace (CJP), Teesta Setalvad's non-governmental organisation (NGO), had sent copies of these letters to the international body only for information and for the country reports it compiles.

The Bench made its displeasure known without hearing Setalvad's defence. Agreeing with Salve, the Bench remarked: What business has the international body to know what is happening in our courts.... It is very serious as it is a reflection on us. When the CJP's counsel Kamini Jaiswal said there was nothing wrong in the CJP forwarding the letter as it was part of an international body, the Bench retorted: You may be associated with hundreds of organisations.... We cannot involve outside agencies to oversee what we are doing. When Jaiswal took the plea that the letter was about witness protection, the Bench replied, Will Switzerland provide you witness protection and not the Supreme Court?

Observers are surprised that the letters sent by the CJP to the U.N. High Commissioner for Human Rights in Geneva should be construed as a reflection on the courts in India. Copies of these letters were sent to the chief of the SIT, according to Salve. Salve submitted that the CJP addressed letters to the Office of the High Commissioner for Human Rights (OHCHR) on witness protection. Salve said sending a letter to an international body was uncalled for and was really worrying and disturbing.

The Bench further asked: Why is this letter sent to the international body? Don't we have the capability to provide protection to witnesses? What is the business of the international body? We can't allow an international body to interfere with what is happening in our courts. This cannot be allowed. We cannot permit outside agency. Justice D.K. Jain asked Kamini Jaiswal to take instruction from the CJP for hearing the matter on merits at the next date of hearing, January 20.

The OHCHR's website claims that it represents the world's commitment to universal ideals of human dignity and has been given a unique mandate by the international community to promote and protect human rights. To optimise its impact, the OHCHR works closely in partnership with others, within and outside of the U.N.

The OHCHR's civil society unit provides information and advice to civil society on a broad range of human rights issues. It also provides advice within the OHCHR on policies and strategies to enhance cooperation for effective human rights protection and promotion, and develops tools to assist civil society in engaging with United Nations human rights bodies and mechanisms.