PUDR welcomes a recent judgment by the Apex court as a timely reminder that liberty of speech and expression is a right fundamental to the citizens of India and restrictions imposed on it must be reasonable. On 7 March, the Supreme Court quashed an FIR against a Professor in Maharashtra, registered under S.153A IPC on the charge of promoting communal disharmony and enmity between groups. The criminal case was registered against the professor for his WhatsApp posts from August 2022 which read “Article 370 was abrogated, we are not happy”, had described it as a “Black Day” for J&K, and in other post had written, “14th August – Happy Independence Day Pakistan”. The Supreme Court argued that the effect of speech needs to be judged from the standards of reasonable women and men and not the standards of people with weak and vacillating minds, a standard for evaluating the threshold of speech set as early as 1945 by a Nagpur High Court Division order (para 11). In arguing so, the SC disagreed with the Bombay High Court which had refused to quash the FIR in April 2023 on the ground that the posts had the possibility of stirring up the emotions of a group of people.
The established free speech jurisprudence in India offers protection to political speech unless a clear connection can be drawn with incitement to public disorder or threat to national security. In 1960, in a case against Lohia, the Supreme Court had ruled that the connection between speech and public disorder must be a ‘proximate’ one for the speech to be restricted, and not one which is ‘far-fetched, hypothetical or remote’. In another order in 1989, the SC had held that for a speech to be proscribed, it must be like a ‘spark in a powder keg”, implying that the relationship between speech and its harmful consequences cannot be speculative. The most robust protection was worked out in 2015 in the Shreya Singhal judgment where the Court distinguished between three kinds of speech- discussion, advocacy and incitement. It argued that mere discussion or advocacy of even the most reprehensible or violent cause, is protected by Article 19(1)(a) of the Constitution. Only when the advocacy reaches the level of incitement that reasonable restrictions can be imposed on the freedom of expression.
The current overhaul of the criminal justice system through the introduction of the new criminal codes, is an occasion to remember the evolution of the rights jurisprudence in India which has increasingly accorded greater protection to political freedoms for their viability in constructing a functional democratic space. At a time when the new Bhartiya Nyaya Sanhita 2023, in the name of abolishing the crime of sedition, has introduced ambiguous provisions which criminalize acts and expressions ‘endangering/jeopardizing sovereignty, or unity, and integrity of India’ (Clauses 152, 197(d)), recounting the history of the court judgments reaffirms the scope of our fundamental freedoms.
The SC judgment in the present case has rightly emphasized the need to educate the police machinery on the concept of freedom of expression guaranteed by Article 19(1)(a) (para 13). PUDR hopes that the training programmes for police personnel on the new criminal laws currently underway, shoulder the responsibility of sensitizing the law enforcers of the history of the rights jurisprudence and the scope of the civil liberties of the people so recognized.
Joseph Mathai and Paramjeet Singh
(Secretaries)
pudr@pudr.org
