Indian laws "criminalize" difference of opinion, should be in line with UN framework: PEN International

A top world organization advocating free speech, PEN International, in a comprehensive study of Indian laws, has said that the legal system of the country makes it “surprisingly easy” to silence those who disagree. Insisting that several laws either require to be repealed or urgently reformed, it says, in India, “if you disagree with something that can be said to promote ‘enmity’, jeopardise ‘national integration’, ‘maliciously’ insult religion, or foster “enmity between groups’, it is not difficult to invoke censorship.”

Insisting that Indian laws are not in consonance with UN covenants on freedom of expression, the report says, those who have sought to be silenced by using them range from top painter MF Husain, who was forced into a self-exile, cultural historian Wendy Doniger, who authored “The Hindus: An Alternative History”, Tamil novelist Perumal Murugan, who wrote “Madhorubagan” (One Part Woman), to journalists, social activists, and well-known NGOs like Greenpeace India.

MF Husain

Born in 1921, PEN – which originally stood for Poets, Essayists and Novelists, and later broadened to Poets, Playwrights, Editors, Essayists, Novelists – regrets that sections of Indian Penal Code (IPC) and Code of Criminal Procedure (CCP) are riddled with “vague and overbroad phrases” which can be used to “restrict freedom of expression, not only by governments, but by almost anyone who wishes to silence another.” PEN recently established its wing in Delhi and Mumbai.
PEN cites Section 95 of the CCP, which it says empowers state governments to seize and prohibit publications that “appear’ to violate” IPC. Then, Section 124A of the IPC which “criminalises sedition” – used by the British to silence Mahatma Gandhi – is still alive. It was recently used to “justify the harassment of several thousand protesters at a nuclear site, a situation that prompted a formal inquiry from three UN Special Rapporteurs”.

Wendy Doniger

Holding special consultative status at the UN and associate status at UNESCO, PEN’s report on India, “Imposing Silence”, released this week, says that there are sections which “criminalise defamation”, in order to “secure a conviction without proof that actual harm has occurred. Thus, only the intent or knowledge that harm would likely result is sufficient” to proceed against someone.
“Predictably, this provision has been used to silence political speech. In May 2014, the IPC’s public mischief provisions (Section 505) were used to arrest a Bangalore student who sent an allegedly offensive WhatsApp message about Prime Minister Narendra Modi”, it recalls.

Ashis Nandy

Coming to laws which it says should be repeal, PEN cites how Foreign Contribution (Regulation) Act, 2010 (FCRA) is currently being used to “lodge complaints against small NGOs who do not toe the party line.” It adds, this act was again used in April 2015, when the Ministry of Home Affairs suspended Greenpeace India’s registration, observing its activities “adversely affecting the national interest”.
In what may lead to eyebrows being raised by Dalit activists, PEN takes exception to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which bans expression that “intentionally insults or intimidates with intent to humiliate” a member of a scheduled caste or tribe.

Perumal Murugan

“Notably, the provisions apply to expression that does not necessarily rise to the level of inciting hatred, but simply requires the intention to humiliate”, PEN says, giving the example of how noted sociologist Ashish Nandy was sought to be intimated in 2013 for his speech at a Jaipur literary festival, where he said “most of the people getting caught in corruption charges belong to marginalized sections.”

The report objects to the Unlawful Activities (Prevention) Act (UAPA), which has been used to prosecute a woman found with ‘Maoist leaflets”, even though, in a separate case, the High Court of Bombay held that the possession of propaganda from a banned organisation was not sufficient proof of membership. Local human rights groups report that the Act has been used with ‘fabricated evidence and false charges’ to detain and silence peaceful activists.”