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Prashant Bhushan case, free speech, ‘hate speech' and the right to dissent

Advocate Suhrith Parthasarathy speaks to Lounge about hate speech, free speech, contempt and reasonable restrictions—how they work and how they ought to within the country’s constitutional framework

A file photo of lawyer Prashant Bhushan. Photo: Virendra Singh Gosain/HT
A file photo of lawyer Prashant Bhushan. Photo: Virendra Singh Gosain/HT

On 14 August, the eve of Independence Day, the Supreme Court held advocate Prashant Bhushan guilty of contempt of court for two tweets. The bench of Justices Arun Mishra, B.R. Gavai and Krishna Murari held that these tweets were based on “distorted facts" and constituted a “scurrilous/malicious… attack" on the “entire Supreme Court".

On 17 August, more than 1,500 lawyers from across the country wrote to the apex court, stating that while some may not agree with the content of Bhushan’s tweets, they were not of the opinion that the tweets qualify as contempt of court. “This judgment does not restore the authority of the court in the eyes of the public," the statement said.

The urgency in hearing the case has been questioned. "The pending matters were, among others, challenges to Article 370, electoral bonds, the Citizen Amendment Act and, of course, habeas corpus petitions and the fundamental rights of the people of Kashmir," writes senior advocate Iqbal Chagla in The Indian Express.

On 18 August, The Times Of India reported that in another case related to Bhushan, the apex court bench “said a question of seminal importance had arisen as to whether there should be a procedure for members of the bar (advocates) to make a complaint against a sitting judge before going public with allegations".

Since Bhushan's conviction for the tweets, a petition has been filed before the attorney general of India (AGI) seeking sanction to initiate criminal contempt proceedings against actor Swara Bhasker. The petitioners, who include Mehak Maheswari—the complainant in the Prashant Bhushan case—allege that Bhasker scandalized the court when she addressed a gathering in Mumbai during the protests against the Citizenship (Amendment) Act (CAA) in February.

Over the last few years, questions about free speech, “hate speech"—there is currently a political slugfest about Facebook India's action, or inaction, against it—and the use of the sedition provision in law have been raised repeatedly. In 2016, students Kanhaiya Kumar, Umar Khalid and Anirban Bhattacharya were booked for sedition on the Jawaharlal Nehru University (JNU) campus for allegedly raising anti-India slogans during an event held to mark the anniversary of the hanging of Afzal Guru, convicted for the Parliament attack in 2001. “It has been four years and we haven’t seen a chargesheet yet," says Bhattacharya, who spent 18 days in jail before getting bail. Since then, other students as well as activists have been charged with sedition.

In the Bhima Koregaon case, relating to allegedly provocative speeches that authorities believe led to violence in 2017, activists like 81-year-old poet and professor Varavara Rao and others have been booked under the Unlawful Activities (Prevention) Act (Uapa). They have been in prison for nearly two years. Students and anti-CAA activists such as Devangana Kalita of the feminist collective Pinjra Tod and Meeran Haider from Delhi’s Jamia Millia Islamia too have been booked under this law. So have Kashmiri journalists Masrat Zahra and Gowhar Geelani.

“Activists and students are being arrested under these provisions for their participation in anti-CAA protests to stigmatize them and burden them with the procedural tyranny of the Uapa. This helps in creating a narrative where dissent is labelled as 'anti-national'," lawyer Chitranshul Sinha told Lounge in an interview on 31 May.

Social media posts too have been under scrutiny. Talha Mannan Khan, 21, who was part of an event organized at the Aligarh Muslim University (AMU) on 6 December 2019, the anniversary of the 1992 demolition of the Babri Masjid, has been named in an FIR after the Bharatiya Janata Party’s youth wing took offence to him sharing an image depicting party veteran L.K. Advani on social media.

When it comes to laws that work to restrict free speech, advocate Suhrith Parthasarathy says: “The list really is endless. As for substantive laws, these would include the criminal defamation law, which has regrettably been upheld by the Supreme Court, despite its apparent unreasonableness; our obscenity laws which are again vague and subject to gross abuse; and the Cinematograph Act of 1952, which grants the Central Board of Film Certification the power to censor films prior to their release. Each of these laws is inherently injurious to free expression."

Parthasarathy, who is a practising lawyer based in Chennai, has written extensively on constitutional law. He speaks to Lounge about hate speech, free speech, contempt and reasonable restrictions—how they work and how they ought to within the country’s constitutional framework.

Last week, advocate Prashant Bhushan was held guilty of contempt of court. In the history of contempt law, where do you see it falling within the framework of reasonable restrictions on speech?

The common justification for the contempt law is drawn from Article 19(2), which allows reasonable restrictions on speech to be made on the grounds of “contempt of court". But while the rule of law necessitates courts to use a power to punish for contempt when judgements and orders are disobeyed or when a person interferes with the due course of a judicial proceeding, it’s difficult to frame a valid defence for a law that punishes speech that “scandalises or lowers the authority of any court". Regardless of how we view the aims of free speech, whether we see it as having intrinsic worth or as having an instrument value, in terms of its contribution to discussion and democracy, punishing merely scurrilous expression cannot ever be seen as a legitimate state aim of a constitutional democracy.

Your thoughts on the Supreme Court order in the case.

On the order itself, holding Prashant Bhushan in contempt, there are various other concerns—the proceedings were conducted summarily, without allowing Bhushan to lead evidence, there’s no real engagement with the substance of his speech, or with the reply that he filed in the proceedings, and the ultimate logic seems to be that a person simply cannot be allowed to call the court into question. It, therefore, will necessarily have deep implications for free speech in India

The term hate speech has been used quite liberally over the last few years. Legally speaking, how is it defined in India—is it defined statutorily or in case law?

There is no singular definition of “hate speech" under India’s laws. But there are a number of different provisions, especially in the Indian Penal Code, 1860, which can be categorized under a corpus of what one might regard as hate speech restrictions. These include sections 153A (which deals with speech that seeks to promote enmity between different religions, castes, communities and so forth) and 295A (which criminalizes speech that outrages religious feelings—this could be termed as India’s equivalent of a blasphemy law). These two provisions are both remnants of India’s colonial past, are vaguely worded, and have repeatedly aided an abuse of process. Apart from the IPC, there are provisions in the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which criminalize speech made with the intent of humiliating members of Scheduled Castes or Scheduled Tribes, and provisions in the Representation of the People Act, which treats as a corrupt practice speech that promotes enmity on the basis of various categories during elections. There was also Section 66A of the Information Technology Act, which has been struck down by the Supreme Court, in Shreya Singhal’s case.

Given the definition in of reasonable restrictions under Article 19, what is the line between reasonable and unreasonable?

Article 19(1)(a), as we all know, guarantees a right to freedom of speech and expression. Article 19(2) limits this right and it allows the state the power to impose by law reasonable restrictions on various grounds. A reading of those grounds would suggest that, in theory, hate speech laws can be defended on considerations of public order. But even so the law will have to be a reasonable one.

To understand whether these laws—particularly those contained in the IPC—are, in fact, reasonable, a good place to begin will be a reading of the Supreme Court’s judgement in Shreya Singhal. There, the court held that for speech to be limited on account of public order, the constraint must satisfy a test of clear and present danger. That is mere advocacy or discussion can never be treated as an offence. The law must only criminalize speech that reaches a level of incitement and is linked proximately to public disorder. That really is what would mark out the distinction between a reasonable law and an unreasonable one.

In light of the verdict in Shreya Singhal, there is an imminent need to re-examine sections 153A and 295A of the IPC and to test them on the touchstone of the Constitution, as we understand it today.

This is not to suggest that we must not have hate speech laws in India; only that these laws need to be tailored to the Constitution. We must also guard against what is known as the heckler’s veto—that is we cannot allow speech to be restricted merely because its subject matter is seen, in and of itself, as provocative. Here again we might want to look at what the Supreme Court said in S. Rangarajan’s case, where it held that “the anticipated danger should not be remote, conjectural or far-fetched. The expression of thought should be intrinsically dangerous to the public interests. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a powder keg".

The law of sedition has been widely used. What is its object and do you see its use in recent cases as justified?

Sedition, which is criminalized under section 124A of the Indian Penal Code, isn’t technically a hate speech law. Its intentions are really bound up with the aims of the colonial government. The idea was to quell so much as the thought of disaffection towards the State. With the Constitution coming into force one would have thought that sedition would be treated as a vestige of the past.

But the Supreme Court in 1962, in Kedar Nath Singh v. State of Bihar, upheld section 124A by making an appeal to public order. It said that the provision is constitutionally valid but can only be invoked when there is a link between words uttered and actual threat of violence. But, in practice, it has been used as the British government intended it to be, as a weapon to crush all opposition to the government. There’s no justification whatsoever for the way in which the provision has been used in independent India, let alone the last few years.

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