Criminalisation of government criticisms: Laws and issues

Recently Bihar government decided to categorize defamatory and offensive social media posts against government officials as cybercrime. Bihar Police has issued a circular to implement this order.

This is not the first instance when Sedition laws and criminal defamation have been used to silence the critics of the government.

Examples of Government silencing critics:

First, As per the National Crime Records Bureau (NCRB), 70 people were accused of sedition in 2018. But only four cases actually ended in conviction.

Second, In August 2016, the court criticized the then Tamil Nadu Chief Minister J Jayalalithaa for misusing the criminal defamation law to “suffocate democracy” and, the court held that, “public figures must face criticism”.

Third, In May 2020 Madras High Court declared 28 criminal defamation proceedings filed by the Tamil Nadu government as invalid.

Fourth, the NCRB Report 2018 mentions, the conviction rate of offenders prosecuted under the Unlawful Activities Prevention Act was just 14.5% in 2015.

These are clear examples of government using sedition, Criminal defamation and other suits as a means of harassment.

What are the laws governing criticisms against the government?

First, Sedition under section 124A of the IPC (Indian Penal Code). Sedition is defined as any action that brings or attempts to bring contempt or hatred towards the government of India. Sedition cases are punishable with a maximum sentence of life imprisonment.

Second, Criminal defamation under section 499 of the IPC. Defamation is defined as the communication of a false statement that harms the reputation of an individual person, group, product, business, government, religion, or nation.

Third, The Government enacted the Information Technology (IT) Act 2000 for matters related to cybercrime and e-commerce. Under this act, the Government can punish any crime involving a computer or a network. The Act can charge India citizens as well as foreigners.

Fourth, The Unlawful Activities Prevention Act of 1967. The Act aims to effectively prevent unlawful activities and associations involved. In 2019 the government amended the provisions of the Act to designate an individual as a terrorist. The Law prescribes a maximum punishment of death penalty or life imprisonment.

Fifth, Apart from these Acts several states have enacted specific laws to govern the criticisms. For example draft bill of Shakti Act of Maharashtra has a provision for stricter punishment for offenders who post defamatory messages on social media.

What are the Judicial interventions on Laws governing criticisms?

First, In Kedarnath Singh vs State of Bihar case 1962, Court upheld the constitutional validity of Section 124A (Sedition). The Court mentioned, “citizen right to freedom of speech and expression does not include incite people to be violent against the government or with the intention of creating public disorder”.

Second, In Balwant Singh v State of Punjab case 1995, the Supreme Court held that mere sloganeering that evoked no public response did not amount to sedition.

Third,  The Supreme Court of India, in the Subramanian Swamy vs Union of India, 2014, upheld the constitutional validity of the IPC (Section 499 and 500). The court mentioned the fundamental right to live with dignity and reputation “cannot be ruined solely because another person can have his/her freedom”.

Fourth, In Shreya Singhal vs. Union of India 2015 case, the Supreme Court struck down Section 66A (this provision criminalizes sending offensive messages through a computer or other communication devices) of the Information Technology Act, 2000. The court also held that the provisions of section 66A have violated Right to freedom of speech and expression.

Why we need such laws in India?

First, These laws have utility in combating secessionist, anti-national and terrorist elements. Some highly publicized cases cannot be the reason to repeal section 124A, section 499 and UAPA.

Second, If contempt of court invites penal action, the contempt of government should also attract similar punishment for the smooth functioning of democracy.

Third, These laws provide stability to the democratically elected government. Sedition laws, Defamation laws and UAPA act as a strong defence against violence and illegal activities aimed to overthrow the government

Why the provisions have to be repealed?

First, These provisions are clear examples of a violation of the Right to Freedom of Speech and Expression. Right to question, criticize and change rulers is one of the fundamental ideas of democracy. Both the sections of IPC(124A and 499) and the provisions of UAPA are in direct conflict with the aforesaid Rights.

Second, IPC and Unlawful Activities Prevention Act have provisions that penalize “disrupting the public order” or “overthrowing the government with violence and illegal means”. These are sufficient for protecting the national integrity. There is no need for Section 124A and 499. It can be repealed.

Third, In 1979, India ratified the International Covenant on Civil and Political Rights (ICCPR). The ICCPR sets out internationally recognized standards for the protection of freedom of expression. However, the misuse of sedition, criminal defamation and UAPA is inconsistent with India’s international commitments.

Fourth, Even the UK (sedition law originated) and Australia have removed sedition laws. International bodies such as the UN had recognized the threat posed by criminal defamation laws.

Fifth, The criticisms if reach at right time to the government, then it can save a lot of resources, government machinery, etc.

Way forward:

There are certain ways to improve sedition, criminal defamation and the application of UAPA in India.

First, We have to educate the Law enforcement authorities to prevent the problem of misuse. The enforcement authorities might be trained regarding the application and non-application cases of sedition, criminal defamation and UAPA suits.

Second, the State has to follow the Parent-Child approach during the criticisms where raised. The Madras High court advocated this approach in May 2020.

Parent-Child approach: The state must act like it is the parent of all its citizens. Despite the insult (sedition or criminal defamation) by children (citizen), parents don’t discard their children quite easily. Like that State also accept the fact that public figures must face criticism.

Third, The Protection of Speech and Reputation Bill, 2016 in modified form can be enacted by the government. The Private member bill has certain important provisions such as

    • Setting the maximum claim limits and barring governments, local bodies and other institutions (statutory functions) from filing suits for defamation and sedition.
    • Providing punishments such as apologies, corrections and retractions, for a lesser form of crimes.

India is an open and liberal society, the largest democracy. But to secure national integrity, divisive forces have to be kept in check. So, it is necessary to retain the laws criminalising criticisms. But the wrongful enforcement and misuse have to be checked.

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