Freedom of Speech a Reality or a Farce

“Bol ki lab azaad hain terey* *Bol zubaan ab tak teri hai”* (Speak out for your lips are free Speak out for your tongue is still yours”) * -Faiz Ahmed Faiz*

It is shocking how a professor can be arrested in Bengal for forwarding a cartoon on Facebook; how a cartoonist can be arrested for making a cartoon on the government; and unbelievably, how a young girl – Shaheen Dhadha – can be arrested for posting something as basic as: “With all respect, every day, thousands of people die, but still the world moves on. Just due to one politician died a natural death, everyone just goes bonkers. They should know, we are resilient by force, not by choice. When was the last time, did anyone showed some respect or even a two-minute silence for Shaheed Bhagat Singh, Azad, Sukhdev or any of the people because of whom we are free-living Indians? Respect is earned, given, and definitely not forced. Today, Mumbai shuts down due to fear, not due to respect.” – while another girl can be arrested for liking the post! Shameful! Disgusting! Dictatorial!

Police arrested a 21-year-old girl for questioning the total shutdown in the city for Bal Thackeray's funeral on her Facebook account. Another girl who 'liked' the comment was also arrested. The duos were booked under Section 295 (a) of the IPC (for hurting religious sentiments) and Section 64 (a) of the Information Technology Act, 2000. Though the girl withdrew her comment and apologized, a mob of some 2,000 Shiv Sena workers attacked and ransacked her uncle's orthopedic clinic at Palghar, north of Mumbai. "Her comment said people like Thackeray are born and die daily and one should not observe a 'bandh' (city shutdown) for that," Police Inspector Uttam Sonawane told the Mumbai Mirror. She only voiced what many others were feeling and experiencing that weekend the stifling thought that you are under house arrest !!!
In a landmark judgment of the case Maneka Gandhi v. Union of India, the Supreme Court held that the freedom of speech and expression has no geographical limitation and it carries with it the right of a citizen to gather information and to exchange thought with others not only in India but abroad also.

The constitution of India does not specifically mention the freedom of press. Freedom of press is implied from the Article 19(1)(a) of the Constitution. Thus the press is subject to the restrictions that are provide under the Article 19(2) of the Constitution. Before Independence, there was no constitutional or statutory provision to protect the freedom of press. As observed by the Privy Council in Channing Arnold v. King Emperor: “The freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from statute law his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject”. The Preamble of the Indian Constitution ensures to all its citizens the liberty of expression. Freedom of the press has been included as part of freedom of speech and expression under the Article 19 of the UDHR. The heart of the Article 19 says: “Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

The concept of Directive Principles of State Policy was borrowed from the Irish Constitution. The makers of the Constitution of India were influenced by the Irish nationalist movement. Hence, the Directive Principles of the Indian constitution have been greatly influenced by the Directive Principles of State Policy. The idea of such policies "can be traced to the Declaration of the Rights of Man proclaimed by Revolutionary France and the Declaration of Independence by the American Colonies." The Indian constitution was also influenced by the United Nations Universal Declaration of Human Rights.

In 1919, the Rowlatt Acts gave extensive powers to the British government and police, and allowed indefinite arrest and detention of individuals, warrant-less searches and seizures, restrictions on public gatherings, and intensive censorship of media and publications. The public opposition to this act eventually led to mass campaigns of non-violent civil disobedience throughout the country, demanding guaranteed civil freedoms, and limitations on government power. Indians, who were seeking independence and their own government, were particularly influenced by the independence of Ireland and the development of the Irish constitution. Also, the directive principles of state policy in the Irish Constitution were looked upon by the people of India as an inspiration for the independent India's government to comprehensively tackle complex social and economic challenges across a vast, diverse nation and population.

The Constitution of India is the Supreme Law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens. It is the longest[1] written constitution of any sovereign country in the world, containing 448 [Note 1] articles in 22 parts, 12 schedules and 118 amendments. Besides the English version, there is an official Hindi translation. Dr B.R. Ambedkar is widely regarded as the father of the Indian Constitution.

'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India. These include individual rights common to most liberal democracies, such as equality before law, freedom of speech and expression, and peaceful assembly, freedom to practice religion, and the right to constitutional remedies for the protection of civil rights by means of writs such as habeas corpus. Violation of these rights result in punishments as prescribed in the Indian Penal Code, subject to discretion of the judiciary. The Fundamental Rights are defined as basic human freedoms which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste, creed, color or gender. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England's Bill of Rights, the United States Bill of Rights and France's Declaration of the Rights of Man.

The six fundamental rights recognised by the constitution are: 
1) Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
2) Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
3) Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;
4) Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
5) Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
6) Right to constitutional remedies for enforcement of Fundamental Rights. Fundamental rights for Indians have also been aimed at overturning the inequalities of pre-independence social practices. Specifically, they have also been used to abolish untouchability and hence prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth. They also forbid trafficking of human beings and forced labour. They also protect cultural and educational rights of ethnic and religious minorities by allowing them to preserve their languages and also establish and administer their own education institutions.

The essence of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restriction, or repression by the government. It is through free speech, people could come together to achieve political influence, to strengthen their morality, and to help others to become moral and enlightened citizens. Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Rights, European convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talk about protection of freedom of speech and expression.

Freedom of speech enjoys special position as far India is concerned. The importance of freedom of expression and speech can be easily understand by the fact that preamble of constitution itself ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship. The constitutional significance of the freedom of speech consists in the Preamble of Constitution and is transformed as fundamental and human right in Article 19(1) (a) as “freedom of speech and expression”. Explaining the scope of freedom of speech and expression Supreme Court has said that the words "freedom of speech and expression" must be broadly constructed to include the freedom to circulate one's views by words of mouth or in writing or through audiovisual instrumentalities. Freedom of Speech and expression means the right to express one's own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one's idea through any communicable medium or visible representation.

Moreover, it is important to note that liberty of one must not offend the liberty of others. Patanjali Shastri,J. in A.K. Gopalan case, observed, “man as a rational being desires to do many things, but in a civil society his desires will have to be controlled with the exercise of similar desires by other individuals”. It therefore includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration.

FREEDOM OF PRESS
In the famous case Express Newspapers (Bombay) (P) Ltd. v. Union of India court observed the importance of press very aptly. Court held in this case that “In today’s free world freedom of press is the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world, where television and other kinds of modern communication are not still available for all sections of society. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate [Government] cannot make responsible judgments. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to Governments and other authorities.”

The above statement of the Supreme Court illustrates that the freedom of press is essential for the proper functioning of the democratic process. Democracy means Government of the people, by the people and for the people; it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. This explains the constitutional viewpoint of the freedom of press in India.

Restrictions
The freedom of speech and of the press does not confer an absolute right to express without any responsibility. Lord Denning, in his famous book Road to Justice, observed that press is the watchdog to see that every trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose and has to be punished for misbehavior. With the same token Clause (2) of Article 19 of the Indian constitution enables the legislature to impose reasonable restrictions on free speech under following heads:
• I. security of the State,
• II. friendly relations with foreign States,
• III. public order,
• IV. decency and morality,
• V. contempt of court,
• VI. defamation,
• VII. incitement to an offence, and
• VIII. Sovereignty and integrity of India.
Reasonable restrictions on these grounds can be imposed only by a duly enacted law and not by executive action.


Sedition and the Freedom of Speech in India

According to the English Law, Sedition embraces all the practices whether by word or writing which are calculated to disturb the tranquility of the State and lead an ignorant person to subvert the Government.  Mere criticism of the government does not amount to sedition, if it was not calculated to undermine the respect for the government in such a way so as to make people cease to obey it and so that only anarchy follows. Section 124A of the Indian Penal Code defines the offence of sedition as follows: “Sedition. Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine”. But Explanation 3 says “Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section”. In Kedar Nath v. State of Bihar (AIR 1962 SC 955), the court upheld the constitutional validity of the Section 124A of I.P.C and also upheld the view taken in Niharendu’s case.

The repeated use of India’s sedition laws – most recently against human rights activist Dr Binayak Sen -- has made them one of the biggest threats to the freedom of speech and expression. Along with other colonial laws such as criminal defamation, laws dealing with obscenity, and blasphemy laws, sedition laws undermine the right to dissent and the right to criticise state policy.

India's first Prime Minister, Jawaharlal Nehru, called sedition laws "objectionable and obnoxious". Nobel laureate Amartya Sen and Markandey Katju, chairman of the Press Council of India, are among the many critics to have flayed the laws. Yet they have survived for years. Why? Because they allow the government to gag opposition without going to the trouble of preparing a case that will stick. In the last few years, writer Arundhati Roy and activist Dr Binayak Sen have been charged under sedition laws, among other lesser known journalists and activists.

Cartoonist Aseem Trivedi was taken into custody on a Sunday for drawing what everyone is thinking. Trivedi has been charged with sedition and insulting the constitution for a series of anti-corruption cartoons. One replaces the three lions of India's Ashoka symbol, the national emblem, with three bloody-jawed wolves. The usual legend under the symbol is Satyamev Jayate, translated as "truth alone triumphs". Trivedi's version changes the line to Bhrastamev Jayate which means "corruption alone triumphs". Another cartoon shows the 26/11 terrorist Ajmal Kasab urinating on the Indian constitution. Tasteless and clumsy? Perhaps. But seditious?

In another high-profile case, sedition charges were filed in November 2010 against Arundhati Roy, S A R Geelani, Varavara Rao and others for their speeches at a seminar on Kashmir titled ‘Azadi: The Only Way’. The charges were pursued based on a private complaint filed in a trial court in Delhi.
Ironically, some of the most famous sedition trials of the late-19th and early-20th century were those of Indian nationalist leaders including Tilak, Gandhi, and Annie Besant. In 1898, the law was amended by the British. Disaffection was now stated to include ‘disloyalty and all feelings of enmity’. The new amendment added the words ‘hatred or contempt’ to the word ‘disaffection’. These amendments also brought in Section 153-A  and Section 505 of the IPC.

The most famous sedition trial after Tilak’s was the trial of Mohandas Gandhi in 1922. Gandhi was charged, along with Shankerlal Banker, the proprietor of Young India, for three articles published in the magazine. The trial, attended by the most prominent political figures of that time, was followed closely by the entire nation. It was presided over by Judge Strangman. Gandhi explained to the judge why from being a staunch royalist he had become an uncompromising disaffectionist and non-cooperator, and why it was his moral duty to disobey the law. In a stunning statement, Gandhi commented on the law that was used to try him, and demanded that the judge give him the maximum punishment possible.

The charges demonstrate how sedition laws are used to harass people even if the government is wary of using them. Facts listed in the following table indicate the manner in which these laws are used to muzzle dissent and target the media. These cases have been reported in the newspapers; there are probably many unreported ones.

RECENT CASES OF SEDITION AT A GLANCE

Person charged withsedition	Occupation	When	Where	Nature of charges
Manoj Shinde	Editor, Surat, Saamna	August 2006	Surat, Gujarat	For using “abusive words” against Chief Minister Narendra Modi in an editorial while alleging administrative failure in tackling the flood situation in Surat
Kahturam Sunani	Journalist, OTV	May 2007	Sinapali, Orissa	For filing a report that Pahariya tribals were consuming ‘soft’ dolomite stones in Nuapada district due to acute hunger
Binayak Sen	Doctor and human rights activist	May 2007	Raipur, Chhattisgarh	For allegedly helping courier messages to Maoist leadership. Sen had criticised the Chhattisgarh government’s support to the vigilante Salwa Judum
Bharat Desai and Gautam Mehta	Resident Editor, Times of India, Ahmedabad;  photographer,GujaratSamachar (Mehta)	June 2008	Ahmedabad, Gujarat	For articles and photographs that alleged links between the Ahmedabad police commissioner and the underworld
Kirori Singh Bainsla	Gujjar community leader	June 2008	Bayana, Rajasthan	For leading an agitation demanding ST status for Gujjars
Lenin Kumar	Editor, Nishan	Decem- ber 2008	Bhubaneshwar, Orissa	For publishing a special booklet on the Kandhamal riots entitled ‘Dharmanare Kandhamalre Raktonadhi’ (Kandhamal’s rivers of blood)
Laxman Choudhury	Journalist, Sambadh	Septem- ber 2009	Gajapati district, Orissa	For allegedly possessing Maoist literature. Chaudhury had been writing about the involvement of local police in illegal drug trafficking
V Gopalaswamy (Vaiko)	Politician, MDMK	Decem ber 2009	Chennai, Tamil Nadu	Remarks allegedly against India’s sovereignty at a book launch function
Piyush Sethia	Environmentalist and organic farmer	January 2010	Salem, Tamil Nadu	Pamphlet distributed during protest against Chhattisgarh government’s support for Salwa Judum
E Rati Rao	Resident Editor,Varthapatra	February 2010	Mysore, Karnataka	Article in Varthapatra alleging encounter deaths in Karnataka
Niranjan Mahapatra, Avinash Kulkarni, Bharat Pawar, and others	Trade union leaders and social activists	March 2010- June 2010	Gujarat	Police allege links with CPI (Maoist)
Arundhati Roy, S A R Geelani, Varavara Rao, Shuddabrata Sengupta and others	Writers, political activists, and media theorists	November 2010	Delhi	Private complaint alleging that they made anti-India speeches at a seminar on Kashmir titled  ‘Azadi: The Only Way’
Noor Muhammed Bhat	Lecturer,  Gandhi Memorial College, Srinagar	December 2010	Srinagar	For setting a question paper for English literature students on whether ‘stone-pelters were the real heroes’
Sudhir Dhawale	Dalit rights activist and freelance journalist	January 2011	Wardha, Maharashtra	Police allege links with CPI (Maoist) party

To end this never ending debate I have one serious question to ask of the GOI, would sedition laws not be applicable to the Modi’s, Advani’s and Thackeray’s of this country???

Kasab and the Death Pentaly : The SC Verdict.

Kasab was born in Faridkot, Pakistan to a family belonging to the Qassab community. He left his home in 2005, engaging in petty crime and armed robbery with a friend. In late 2007, he and his friend encountered members of Jama'at-ud-Da'wah, the political wing of Lashkar-e-Taiba, distributing pamphlets, and were persuaded to join.

On 3 May 2010, Kasab was found guilty of 80 offences, including murder, waging war against India, possessing explosives, and other charges. On 6 May 2010, the same trial court sentenced him to death on four counts and to a life sentence on five counts. Kasab's death sentence was upheld by the Bombay High Court on 21 February 2011. The verdict was upheld by the Supreme Court of India on 29 August 2012.  Kasab was hanged on 21 November 2012 at 7:30 a.m. and buried at Yerwada Jail in Pune. 

The Supreme Court on Wednesday 29th August 2012 rejected the plea of Mohammad Ajmal Amir Kasab in the 26/11 Mumbai terror attacks case and upheld the death penalty. 

Kasab was convicted of criminal conspiracy, waging war against the nation, Section 302 of IPC (murder) and terror related provisions of Unlawful Activities (Prevention) Act. The HC had agreed with the trial court that the case against Kasab fell in the rarest of rare category and upheld the decision to award death penalty to him.

The trial court had also found Kasab guilty on 19 counts under IPC, Arms Act, Explosives Act, Explosive Substances Act, Foreigners Act, Passport Act and Railway Act. Kasab and his nine fellow Jihadis had attacked CST railway station, Cama Hospital, Chawpaty junction, Oberoi Hotel, Taj Hotel, Nariman House and Leopold Cafe, resulting in killing of 166 people and injuring 238 others. 

While Kasab was captured alive, the other terrorists in his group were killed by security forces during the counter-terror operations. 

The Bombay high court had upheld the trial court's verdict to award death sentence to Kasab, the lone surviving gunman who was part of the 10-member team that attacked Mumbai on the night of 26th November 2008.

A bench of Justices Aftab Alam and C K Prasad dismissed the plea of 25-year-old Kasab challenging his conviction and death sentence confirmed by the Bombay high court.

The bench rejected his contention that he was not given a free and fair trial in the case. The bench also observed that the failure of government to provide him an advocate at the pre-trial stage did not vitiate trial court proceedings against him.

Kasab was convicted of criminal conspiracy, waging war against the nation, Section 302 of IPC (murder) and terror related provisions of Unlawful Activities (Prevention) Act. The HC had agreed with the trial court that the case against Kasab fell in the rarest of rare category and upheld the decision to award death penalty to the Pakistani terrorist.

Ammunition, a satellite phone and a layout plan of Chhatrapati Shivaji Terminus was recovered from Kasab. He described how his team arrived at Mumbai from Karachi via Porbandar. He said that they had received revolvers, AK-47s, ammunition and dried fruit from their coordinator. Kasab told the police that they wanted to replicate the Marriott hotel attack in Islamabad, and reduce the Taj Hotel to rubble, replicating the  11 September attacks in US. Kasab told police that his team targeted Nariman House, where the Chabad center was located, because it was frequented by Israelis, who were targeted to "avenge atrocities on Palestinians. In a press conference, the Mumbai city police commissioner said "The person we have caught alive is certainly a Pakistani. They were all trained by ex-army officers, some for a year, some for more than a year". On 23 November 2008 they set sail from Karachi unarmed to be picked up by a larger vessel. They hijacked the Indian fishing trawler Kuber and set sail for Mumbai. 

TRIAL OF KASAB

His conviction was based on CCTV footage showing him striding across the Chhatrapati Shivaji Terminus with an AK-47 and a backpack. Towards the end of December 2008, Ujjwal Nikam was appointed as Public Prosecutor for trying Kasab and in January 2009 M. L. Tahiliyani was appointed the judge for the case. Indian investigators filed an 11,000 page Chargesheet against Kasab on 25 February 2009. Due to the fact that the chargesheet was written in Marathi and English, Kasab requested an Urdu translation of the charge sheet. He was charged with murder, conspiracy and waging war against India along with other crimes. His trial was originally scheduled to start on 15 April 2009 but was postponed as his lawyer, Anjali Waghmare was dismissed for a conflict of interest. It resumed on 17 April 2009 after Abbas Kazmi was assigned as his new defence counsel. 

On 20 April 2009, the prosecution submitted a list of charges against him, including the murder of 166 people. On 6 May 2009, Kasab pleaded not guilty to 86 charges. The same month he was identified by eyewitnesses who testified witnessing his actual arrival and him firing at the victims. Later the doctors who treated him also identified him. On 2 June 2009, Kasab told the judge he also understood the Marathi language. 

In June 2009, the special court issued non-bailable warrants against 22 absconding accused including Jamaat-ud-Dawa (JuD) chief Hafeez Saeed and chief of operations of Lashkar-e-Taiba, Zaki-ur-Rehman Laqvi. On 20 July 2009 Kasab retracted his non-guilty plea and pleaded guilty to all charges. On 18 December 2009, he retracted his guilty plea and claimed that he was framed and his confession was obtained by torture. Instead he claimed to have come to Mumbai 20 days before the attacks and was simply strolling at Juhu beach when police arrested him. The trial concluded on 31 March 2010 and on 3 May the verdict was pronounced — Kasab was found guilty of murder, conspiracy, and of waging war against India (which also carried the death penalty). On 6 May 2010, he was sentenced to death. 

A Bombay High Court bench, composed of Justice Ranjanaa Desai and Justice Ranjit More, heard Kasab's appeal against the death penalty and upheld the sentence given by the trial court in their verdict on 21 February 2011. On 30 July 2011, Kasab moved to Supreme Court of India, challenging his conviction and sentence in the case.  Thus, a bench composed of Justice Aftab Alam and Justice Chandramouli Kr. Prasad stayed the orders of the Bombay High Court so as to follow the due process of law, and started hearing the case.

On 29 August 2012, Kasab was found guilty of waging war and was sentenced to death by the Supreme Court of India. 

Kasab's plea for clemency was rejected by President Pranab Mukherjee on 5 November 2012. On 7 November, Minister of Home Affairs Sushilkumar Shinde confirmed the President's rejection of the petition. The following day, the Maharashtra state government was formally notified and requested to take action. The date of 21 November was then fixed for the execution, and the Indian government faxed their decision to the Pakistani Foreign Office. He was hanged on 21 November 2012 at 7:30, according to an announcement by Home Minister Shinde. Kasab's execution by the Maharashtra government happened barely two weeks after President Pranab Mukherjee rejected his mercy petition on November 5 2012."