In an important submission before the Law Commission of India, the Amnesty International India has insisted on the need to undertake critical legal reforms to better defend the right to free speech. Saying that this is important against the backdrop of a “growing trend of intolerance towards dissent and criticism” in the recent weeks, elucidating the submission, Amnesty's senior policy adviser Shailesh Rai said, “Authorities have shown a worrying eagerness to arrest and detain people for the lawful exercise of their constitutional rights to free speech, especially when it concerns the new Prime Minister.”
Giving reasons for the submission, Rai said, “In May 2014, police in Bangalore arrested a man for sending a photograph on his phone depicting Prime Minister Narendra Modi on a funeral pyre. The same month, police in Panaji, Goa filed a First Information Report against a man who said in an online post that if Narendra Modi came to power, it would lead to a holocaust.”
Rai added, “In both cases, police relied partly on section 66A of the Information Technology Act, which criminalises online communication that is ‘grossly offensive’, and persistent sending of information known by the sender to be false, to cause ‘annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will”.
Rai further said, “In June, police arrested students and staff at a college in Kunnamkulam, Kerala, over an article that featured the Prime Minister in a list of ‘negative faces’ in a college magazine. The next week, police in Guruvayur, Kerala arrested students and staff at a different college over a crossword puzzle that used derogatory language to refer to the Prime Minister and other political leaders.In both cases, the police said that the expressions amounted to criminal defamation, among other offences”.
“While these expressions may be offensive to some, they certainly do not merit arrests and criminal cases,” said Rai, adding, “Unfortunately, some Indian laws, including those on defamation and online speech, fall short of international standards on freedom of expression and enable the criminalizing of opinion. The government must act to urgently amend these laws.” Amnesty's submission follows the Law Commission of India’s request for comments in May 2014 on a consultation paper on aspects of media laws.
Amnesty, which submitted its recommendations to the Law Commission on June 21, called for “the decriminalization of defamation, and legal reform to guard against abusive civil defamation lawsuits.” It urged “amendment to laws on contempt of court to abolish the offence of ‘scandalising the court’, and the repeal of section 66A of the Information Technology Act.”
“These laws affect not just journalists, but ordinary people too. For public debate to remain robust in India, people should be able to express their opinions without fear of prosecution,” explained Rai, adding, “The government must do more to respect and protect the right to freedom of expression.”
Amnesty also recommended the decriminalization of defamation by repeal of Sections 499 and 500 of the Indian Penal Code. If this happens, then the current situation – under which, if proven, criminal defamation is punishable with imprisonment for up to two years and/or fine – would no more exist. “The remedies”, according to Amnesty, “should include correction and apologies, with proportionate damages.”
Amnesty cited the International Covenant on Civil and Political Rights, which provides for restrictions on the right to freedom of expression, including those seeking to respect the rights and reputations of others. “Such restrictions are nevertheless an interference with freedom of expression and so must serve a legitimate aim, be proportionate to that aim and be the least restrictive available option”, Amnesty points out.
Amnesty said, “A suggestion to decriminalize defamation has also come from the UN Human Rights Committee (UNHRC),that has found that keeping defamation cases open for long periods of time and not proceeding to trial expeditiously can have a chilling effect on freedom of expression.” Then, “the UN Special Rapporteur, the OSCE (Organization for Security and Co-operation in Europe) Representative on Freedom of the Media and the OAS (Organization of American States) Special Rapporteur on Freedom of Expression have also jointly called for the repeal of criminal defamation laws.”
As for civil defamation, the Amnesty quoted the Special Rapporteur which stated in 2004: “Any fines that are levied should not prevent the continuation of press activities and investigations and should be appropriate to the financial resources of journalists…defamation cases could equally be solved without recourse to the judiciary, but through the good offices of a mediator.”
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