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Colin Gonsalves: Freedom of speech and expression and the law of sedition in India

9 February 2011

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Persistence Resistance 2011

Text of keynote address delivered by Colin Gonsalves at the inauguration of Persistence Resistance 2011, New Delhi

As far as speech against the government is concerned, you can now say almost what you want to say and get away with it. Criminal defamation that was a great restraining statute, that prevented people from saying things openly in society: Colin Gonsalves Photograph: Magic Lantern Foundation

Good morning. I am going to be very quick as I don’t want to stand between you and films that are going to be shown. I’ve been asked to speak very quickly for 15 minutes, on the Freedom of Speech and Expression and the Law of Sedition, particularly in the context of Binayak Sen’s arrest and his trial, now the appeal is pending before the High Court.

As you know the Human Right and Law Network represents very poor people and we have a very different view of the world as compared with that businessmen and so on may have about how well India is doing. We sort of represent people in courts and cases related to economic rights and political rights and so on. And we see the suffering of people, the anguish, the abject misery of the people we represent.

So we are always very keen to have critical speech against the government flow as quickly and in as unrestricted a manner as possible. We have had over the last five years very good time in the Supreme Court. In the sense that the Supreme Court has really come in over the last five years to promote the freedom of speech and expression. We have had many of Anand Patwardhan’s films that were stopped by the government, the Supreme Court has cleared many of those films. And even went to the extent of saying that the films be shown on prime time television.

We’ve had the obscenity standards now changed. So the old, very conservative way of looking at obscenity and censoring films on the grounds that it is obscene, those standards have sort of changed in the Supreme Court. We have caught up with the rest of the world and we no longer accept the older version of what constitutes obscenity.

As far as speech against the government is concerned, you can now say almost what you want to say and get away with it. Criminal defamation that was a great restraining statute, that prevented people from saying things openly in society… Criminal defamation as you know, didn’t have truth as defence, so you couldn’t say “Well, what I have said is correct.” So now truth as a defence in criminal defamation proceedings have come in you can say what you like if you have a basis for that statement. You can say: “ well what I said was correct. It might have had the effect of reducing the reputation in the eyes of the public, but what I said was actually accurate and truthful. And it was in public interest that I made that statement.” So defamation now, with truth coming in as a defence, allows people a little more leverage in speaking out.

As far as speaking out against government servants is concerned you can anything. For we follow the American standard, that is as long as what you say is truthful, and even if what you are saying is not truthful, as long as you did not know what you said is not correct, you are completely protected. And if the government tries to sue a person for having made a false statement, the government will have show that not only is the statement false, but also that the person who made the statement knew that the statement was false at the time when the statement was made. So defamation of public servants, politicians, policemen and so on, has virtually now been rendered redundant.

As far as pre-publication injunctions are concerned our courts were very inclined in the 60s, 70s, 80s from preventing publication from being distributed and to injunct the distribution of a publication. You know the ‘Stardust’ case where the High Court said - its scandalous stuff about the life of a particular actress – and prevented the magazine from being distributed. BY and large now, in the 90s and today, pre-publication injunctions are granted very, very rarely. And the approach of the court is to allow the publication to go out to society and leave it open for the person who has a grievance against the publication to file a suit for damages. So pre-publication injunction has also caught up with the international trend and the courts are not supposed to generally except in very rare circumstance to injunct a publication before it goes out.

POTA, the Prevention of Terrorism Act, had a very, very dangerous provision that penalised journalists who went out to interview Maoists. So a journalist who interviewed a Maoist and showed, or didn’t even show the clip, and just had the clip in his house or whatever, or her house, could be penalised for taking part in terrorist activity because you have interviewed an insurgent. Likewise advocates, an advocate who had a conversation with a militant could be taken under the Prevention of Terrorism Act. But POTA is now mercifully repealed.

So those are some of the positive developments that have taken place in the courts in the last 10 years. The downside is hate speech. In many of the Indian language newspapers you have virulent flow of particularly anti-Muslim writings. Terrible, terrible hate speech is flowing in this country which is completely unrestrained. The law exists for control of that kind of speech. It is constitutionally valid to restrain hate speech but it goes on unrestricted in the country. That is the downside.

The second downside is the banning of books, something little known. Hundreds of books have been banned. I don’t know by what authority government departments ban books but there are many, many controversial and good books which are today banned in India. You won’t get them in the bookstores.
The third of course is the censorship of films which I feel is an out-dated and a sort of a anachronistic system. I suspect a careful look at censorship guidelines, censorship rules, censorship regulations, a closer look at that from the modern perspective of freedom of speech and expression may show us that censorship needs to go in this country. That’s as far as freedom of speech and expression is concerned.

Let me come to sedition. Now sedition is a very, very old, colonial kind of a law which penalises disaffection, disloyalty to the State. It has its roots in the old, colonial regimes where any speech against Her Majesty or any criticism of the government or the State was seen as fermenting disloyalty and therefore liable for prosecution. Well, it didn’t even require that your speech had any effect. It didn’t even require that people would rise up in arms against the State. The mere statement against the State was enough to take you in for considerable periods of time. We unfortunately in India, in the leading judgment of 1962, followed the colonial law quite a bit with a slight modification that your speech must be accompanied by some overt act against the State. Not a very satisfactory dilution of the law of sedition, so sedition remains on the statutes books even today.

Now you all know of Binayak Sen but you may not know that there are hundreds of young activists in jail today. I have a friend in jail in Uttarakhand, Rahi, who is in jail because he went out and interviewed a Maoist. And his story is on the activities on the Maoists in the State that were reported in the State. The government took offense against that and he is now in jail for three years and denied bail. I have many, many young friends who have had Maoist literature in their homes, and searches were done of their homes and they were arrested because they possessed Maoist literature which was said to be connected with seditious thoughts, activity and so on. So Binayak is one amongst many and I would say that when we campaign for Binayak we campaign for all the young people who have spoken out against the State, against the repression of the State and who are today languishing in jail, quite unknown. Very few people know about their suffering and their incarceration for long periods of time.

Now sedition law has been repealed in most countries. The UK has repealed the sedition law recently, Canada, Australia, many, many countries have done away with this law. But India continues with a very archaic and a very dangerous law. And Binayak Sen is a symbol of that resistance to a law that penalises free speech. As you know in Binayak’s case, the case is that he had a letter, that he took a letter from a person in jail to somebody else. There’s a great deal of dispute whether that letter was taken by him. But even if assume that the charges against him are correct, the taking of a letter for God’s sake, the taking of a letter from a prisoner to somebody else is the foundation for a charge of sedition.

From Human Rights Law Network and I personally I would like to see a great explosion of critical thought against this government, a great flowing of critical action and strong language against the government. I say so because I have seen people really suffer in this country over the period of the last 20 years under the globalisation regime. I have never seen people hungry, die of hunger as we have seen during this period of 8% growth rate. I have never seen people denied basic medical services in public hospitals, and public hospitals being privatised and closed down, and services closed down when people need them most. I have never seen children fall out of school and lose education, lose their chance for education notwithstanding the so called Education Act and so on. Housing rights, demolition of people’s homes and so on. So I would be very happy to have as great an outpouring of anger against the government. Sedition Law penalises anger, Sedition Law penalises criticism, Sedition Law says: You will go to jail if you say “I hate my government.”

I think the time as come in this country to have a little revolution. And young people and old people alike, speaking out with anger against a regime which really torments poorer people, I think the time has come to really allow this kind of free speech t flow.

Thank you very much.

[Colin Gonsalves is Advocate, Supreme Court, and Executive Director of Human Rights and Law Network.]