On February 12, 2016, Kanhaiya Kumar was arrested by Delhi Police for raising anti-India slogans. Several sections of the Indian Penal Code were hurriedly quoted in defense of the police action. Hours later social media went ablaze with heated discussions about the nature of freedom of speech. Evelyn Beatrice Hall’s words that one may disapprove of what another says, but one will defend to death another’s right to say it, were launched as if they were weapons of an atomic age. Ironically these words were often misattributed to the French political thinker Voltaire. Social media and office canteens were divided into camps comprising of those supporting the police action and those defending freedom of speech. Those defending the police action were often rightists or nationalists or both, and they believed in the pious fraud that sometimes freedom of expression must be compromised in favor of the greater good. Those in support of Kanhaiya Kumar were often liberals or held political ideas that were left of center. Many of them were passionate in their appeal that the only limits applicable to freedom of speech are that they should remain within the confines of the lexicographical definition of freedom of expression and should not transcend into the domain of physical action.
On March 29, 2018, Mahesh Hegde, the founder of the alt-right online news site Postcard News was arrested by the Karnataka police and several sections of the Indian Penal Code were cited to justify the police action. Within a matter of hours many users of social media posted in joy and glee that action was taken against a much-despised site that often peddled fake news and radical opinions that were invariably pro-government, pro-Hindutva, often Islamophobic and xenophobic. This time, the tables had turned. People supporting the arrest were chiefly liberals who held ideologies that were center or left o center. The opposite camp did not languish for long and rose to the occasion to meet the challenge head on. Soon every available platform witnessed increased decibels and heightened levels of adrenaline. From twitter to Facebook, from office canteens to Fox News styled panel discussions on television, there was little one could do to avoid being bombarded with accusations and counter-accusations.
On October 31, 1984, a crowd gathered outside Neelam Cinema in Chandigarh. In the crowd were Balwant Singh and Bhupinder Singh; both were employed by the state government of Punjab. As time went by, the crowd became increasingly excited. The exhilaration of the crowd was felt by Balwant and Bhupinder who soon took to sloganeering. Among the slogans they shouted were.
- Khalistan Zindabad
- Raj karega Khalsa
- Hindu nun Punjab chon kadke chadenge, hun mauka aaya raj kayam karan da
Roughly translated, it means “Long live Khalistan. The Khalsa will rule. We will make the Hindus leave Punjab, the time to rule has come”.
The same day, a little before six in the evening Balwant and Bhupinder were arrested and several sections of the Indian Penal Code were cited. Balwant and Bhupinder were produced in a court, and a legal battle commenced that ended in a historical judgement eleven years later.
The Indian penal code is the collection of laws that forms the backbone of the criminal justice system of the country. This code was drafted in 1860 on the recommendations of the First Law Commission of 1834 headed by Macaulay, and was enforced in 1862. When India and Pakistan became independent, they inherited the same code of law. Since independence, this code has been revisited in parts, but the bulk of the code remains as it was first penned in 1860. The 1860 code, itself drew heavily on inspirations from even older and more archaic codes of law, like the Louisiana Civil Code of 1825 and the Napoleonic Code. It is needless to say that a hundred and sixty-year-old code of law is not apt for deciding matters in the modern world where our idea of prudent and imprudent behaviour is often fundamentally at loggerheads with the idea of prudent and imprudent behaviour prevalent a hundred and fifty years ago.
Macaulay himself was very much the imperialist and held very disparaging views about oriental societies and oriental culture, and was convinced of white supremacy. Much in the Georgian tradition of the day, Macaulay divided the world into two groups of civilized and barbarians, with the British at the apex of civilization. With such ideas, it is hard to imagine that laws would afford those accused all the rights we today take for granted to be universally applicable to all human beings.
The phraseology of the Indian penal code is often very vague and such vagueness introduces subjectivity into the code. It is often the case that some laws can be used to make criminals of all and sundry if need be while letting others walk Scott free on the whim of an interpretation. Much of the sections of the IPC quoted in support of the arrests spoken about the earlier lie in the same category of vagueness and openness to interpretation. It is the view of the author that such openness to interpretation served the colonial occupiers in good stead. It would have allowed judges to treat Europeans and Indians differently within the confines of the same code. It would also have enabled the authorities to incarcerate anyone they felt could be a challenge to their authority. For a handful of colonizers from a small island nation, to maintain an iron grip over a large and populous country, such arbitrary powers would have been necessary while still maintaining the façade that everyone is equal in a court of law.
After the exit of the British, the inheritance of the same code by the newly independent nations meant putting the same arbitrary power in the hands of the ruling party or coalition of the day and place. It allows the state police to exercise a fair bit of arbitrariness in their actions and arrests. Since the state police is answerable to the state government, such arbitrary powers have been misused by governments with ideologies ranging the entire spectrum from left to right. At other times such arbitrariness has been used to gag the media and those demanding more accountability from the government.
The higher courts of the country have sometimes been progressive in their interpretation of the law. Certain sections of the Indian Penal code (including some new additions) have been struck down as unconstitutional and infringing upon fundamental rights. In the case of Indra Devi vs. State of Assam, the court observed,
Although according to the literal rule of interpretation we have to go by the plain and simple language of a provision while construing it, we may have to depart from the plain meaning if such plain meaning makes the provision unconstitutional.
However, the courts have not always been so progressive in their interpretation of the law, and there have been more hearings that have tended to proceed along literal lines. The lower courts are less likely to read the law progressively and less literally than the higher courts of the country.
But even if the court finds in favour of the defendant, the defendant (who has limited resources) has to go through the expensive, arduous and time taking process of fighting the state which has vast resources at its disposal. The scales are certainly not balanced when an individual is fighting the state for a crime that is only a matter of interpretation. Often, even when the state knows that it has no case, it will employ its vast resources to take on an individual in a battle of attrition. An individual or small group with limited resources will sometime capitulate not because of the establishment of guilt but because of lack of means to fight a prolonged legal battle.
Similar tactics are also used by other rich agents with a vast resource (like companies, industrialists, politicians etc.) to gag any opposition or to scuttle any call for scrutiny. The defamation laws are particularly suited in such scenarios.
In the three incidents I started with, among the sections of the IPC that were cited in support of police action were 124A, 295A and 153A. 124A concerns itself with cases of sedition and were applied in the case of Kanhaiya Kumar and Balwant Singh. 153A concerns itself with the promotion of enmity between groups on the ground of religion, race, etc. Section 295A concerns itself with hurting religious sentiments. The phraseology of the sections is such that it is easy to claim that virtually anything a person has written or spoken is in violation of the law. The law relating to hurting religious sentiments essentially makes it a catch-all to prevent criticism of anything that can be remotely linked to a religious belief, and these provisions can be and have been used as tools to intimidate and silence those who refuse to conform with powerful groups. These provisions become even more ludicrous because the preachings of different religions are at loggerheads with each other, and the mere act of following one religion can be offensive to a certain section of followers of another.
On March 19, 2018, Mahesh Hegde captioned a photograph of Jain monk and tweeted that the monk had been attacked by Muslim youth and no one is safe in Siddaramaiah’s Karnataka. It was later found that the monk was involved in a road accident and sustained minor injuries. The news was clearly fake. Not long after, Mr. Hegde was arrested and IPC 120B, 295B and 153A were slapped against him.
To the best of the author’s knowledge, posting fake news or spreading misinformation is not a crime under the IPC. There can be several reasons for posting fake news. While some fake news can be posted for financial, ideological, electoral or public relations reasons, it is often the case that fake news is posted by people without mala fide intentions who have merely not performed adequate due diligence about the authenticity of the news item. At other times, as time passes and more information becomes available, news posted earlier with the limited information that was then available starts appearing fake. In recent times there have also been several instances when media channels, in trying to beat each other to be the first to publish a news item, failed to verify the source. Every channel, at some point of time, would have posted some news of questionable authenticity. While more responsibility from the media is the need of the hour, arresting people for fake news is not the solution to the issue and is likely to be counter-productive because:
- There is no provision in the IPC to criminalize fake news and legal workarounds have to be found, as was the case in the arrest of Mr. Hegde
- It may be used by the government to target certain media agencies that do not toe the government’s line
- The press is a pillar of a democracy and its role as the protagonist demanding more accountability from the government may be compromised.
Moreover, in the internet age, where anything can be considered an act of publishing news – from tweeting to writing a blog post or forwarding a WhatsApp message to a group, the threat to use this as a bullying tactic is not limited to the formal print and non-print media and can be applied to any individual.
Mr. Hegde faces charges of criminal conspiracy (120B), promoting enmity between different groups based on race, religion etc. (153A), and outraging religious feelings of a class by insulting its religious beliefs (295A).
It is hard to understand how posting a fake news item about an alleged attack on a monk can hurt any religious sentiments, as no remarks about any religion were even made. Even if that was the case and Mr. Hegde had (hypothetically) made a perceivably objectionable comment about a religion, the offence is a shaky ground for any legal action because anyone can take offence at anything. For example, a mere statement by an atheist professing that God does not exist, may be offensive to a religious group, and a literal reading of the provision would find the accused guilty.
The second charge applied to Mr. Hegde is criminal conspiracy. One can only imagine the crime Mr. Hegde was conspiring to do with a tweet.
The final charge against Mr. Hegde is promotion of enmity between classes. Depending on how one interprets it, any statement referencing members of any community by anyone can be construed as a promotion of enmity. However, a serious criminal charge that can lead to an imprisonment up to five years cannot be left to the whims of the judge because the crime itself is a matter of interpretation and perception.
The crime itself being a matter of perception or interpretation is not unique to hurting religious feelings or promoting enmity (295A) alone, and is the case of sedition (153A) as well. Balwant Singh and Bhupinder Singh stood accused of both sedition and promoting enmity between classes. The observations of the judges in the judgement are of significance in the case of Mr. Hegde as well where the same provisions have been applied for the perceived crime of circulating fake news.
In 1995, the Supreme court gave a landmark judgement when it acquitted Balwant Singh and Bhupinder Singh of any wrongdoing. The court opined that speech made in vague terms did not amount to sedition or incitement of violence. For the speech to be seditious or for it to promote enmity, without any specific appeal to create disorder, mere casual sloganeering is not enough. In saying this the court has clarified that these provisions are not meant to be applied to all perceived verbal or written aggravations casually.
Freedom of expression in general, and freedom of the press, in particular, are increasingly under attack. In recent times the press has also displayed a lack of responsibility. While more responsibility from the press is not only desirable but imperative, such responsibility should not come at the cost of the freedom of the press. It is important that any attempt to infringe upon this freedom be vehemently and indefatigably opposed. Inaccuracies in news reports must be criticized, but support for criminal action against a person/persons for inaccurate news based on arbitrary literal interpretations of the law does grave disservice to freedom of expression and the idea of democracy, as it sets a precedent to be used to quell justified criticism of the establishment or of social norms. Moreover, the ability to easily take offence should not decide whether somebody is to be arrested or not.
 In this case, based on a literal interpretation of the law, the accused were arrested under TADA as they were members of a banned organization. The court disregarded the literal interpretation of the provisions and opined that a mere membership of a banned organization does not make one a criminal unless one engages in the unlawful activities of the organization. The same reasoning extends to being a supporter of a banned organization.
 When the AAP MLAs were reinstated by the court, several channels reported the very opposite.