On 19 September 2016, PEN International, a worldwide organisation of writers, in collaboration with PEN Canada, its Canada chapter, and the International Human Rights Program at the faculty of law in the University of Toronto, released a report titled, “Fearful Silence: Chill on India’s Public Sphere.” The report is an update to PEN’s 2015 report, “Imposing Silence: The Use of India’s Laws to Suppress Free Speech,” which looked at the ways in which freedom of speech was being curtailed in India. The update discusses the rapid pace at which the space for free speech is shrinking in socio-political domains in India, and looks at recent instances such as the censorship of films and a rising tide of online harassment. It says that, in most of the cases, restrictions on the freedom of speech are imposed because of “a small number of aggrieved citizens.” The update notes that the growing culture of intolerance in India is accompanied by an increasingly loud nationalist discourse, and that it has become more menacing since the Bharatiya Janata Party government came to power in 2014.
In this back drop, the update notes, the filmmaker Pankaj Butalia’s legal victory against the Central Board of Film Certifcation is a window of hope. The CBFC claimed that Textures of Loss, Butalia’s documentary on the unrest in Kashmir in 2010, was seditious. This charge was eventually struck down by the courts. However, Butalia’s case, the following excerpt from the update says, is also a reminder of how easy it is to press charges of sedition, and how the sedition law “can be used to entangle filmmakers and journalists in cumbersome legal processes.”
In 2016, India’s sedition provision in the IPC was repeatedly used to silence allegedly anti-nationalist sentiments, as in the Kanhaiya Kumar case. The provision’s vague wording has allowed the authorities to use it against a wide range of citizens who are lawfully exercising their constitutionally guaranteed freedom of expression, even outside the context of criminal law.
Consider the experience of documentary filmmaker Pankaj Butalia. The Central Board of Film Certification (CBFC) deemed parts of Textures of Loss, his documentary on Kashmir, to be seditious due to comments made by some of the victims of violence that Butalia interviewed. The CBFC ordered him to delete a comment about the “disproportionate” violence of paramilitaries in Kashmir, as well as a line spoken by a grieving father, who curses the Indian state and wished death upon the families of those responsible for killing his son.
Butalia appealed to the High Court of Delhi which ruled decisively in his favour in May 2015, finding that “Damnation of the State in the context of the tragedy which visited the concerned person…could not be construed as an act of sedition.” The Court also rejected the argument that such utterances would propagate anti-national sentiments.
In a rare move, the CBFC appealed the High Court’s decision to the Division Bench. When asked about the decision, Butalia speculates that the CBFC may have chosen to retaliate:
CBFC censors are arrogant and think of themselves as guardians of morality. They have a strong sense of who is important and who is not. In the hierarchy of filmmakers, a documentary filmmaker is of no consequence … so they feel they have the right to say anything they want… They cannot stand it if you resist them.
This perceived attitude is exacerbated by two problems that the government has done little to address: extremist Hindu nationalism and rising vigilantism. Reports indicate that nationalist attitudes are not unusual within the CBFC. In fact, Pahlaj Nihalani, the head of the organization has been described as “going beyond the law dealing with certification.” In a newspaper interview, Nihalani describes himself as a “social worker,” adding that “in the name of expression, you don’t barter your culture.” His stance is no surprise. In Imposing Silence, PEN noted the sharp politicization of the CBFC over the past few years, particularly since the Modi government’s appointment of members who are seen to be loyalists. Furthermore, since the government has sole power to appoint Board members, the institution can hardly be considered fully independent.
As nationalism becomes more strident, the use and application of the sedition provision has markedly increased. In 2013, only two cases were filed; in the following year that number rose to five. In 2015, the number ballooned to 14 sedition cases related to freedom of expression. In the first three months of 2016 alone, 11 cases have been filed.
The routine misuse of the sedition provision is facilitated by its vague phrasing. Section 124A of the IPC states that:
Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
As detailed in Imposing Silence, vague terms like “disaffection” are ripe for abuse by opponents of free speech and incompatible with international law, which requires restrictions on expression to be clearly worded and strictly necessary. Absent such conditions, opponents of free speech can easily exploit vague laws to silence their critics.
Regrettably, although the Supreme Court narrowed the scope of the sedition provision in Kedar Nath Singh v State of Bihar (Kedar Nath), and subsequently created a proximity requirement for constitutional validity of restrictions on expression in S. Rangarajan vs. P Jagjevan Ram and Ors (Rangarajan), both the government and the courts have repeatedly ignored these directives in sedition cases. In Rangarajan, the Supreme Court required that valid restrictions on speech under Article 19(2) of the Constitution must have a “proximate and direct nexus” with an anticipated danger:
The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg.’
Films like Textures of Loss clearly fail to meet this standard. In fact, after the film gained notoriety as a result of the CBFC’s accusation that it contained seditious material, several television networks aired it without causing any riots. This gap between the law and its application in practice is not unusual: legal scholar Gautam Bhatia notes there is often a gap between the law and the manner in which it is applied in lower courts. Nevertheless, given the Supreme Court’s restrictive interpretation of the sedition provision and Article 19(2), why did the CBFC argue that the film was seditious?
Butalia believes the government aims to take advantage of some judges’ ignorance of the law: “[Judges] might not be aware that a particular law has been read down [narrowed] by higher courts. They go by whatever lawyers give to them.” […] Judges often defer to government lawyers, especially when they lack experience, and competency in English is insufficiently emphasised throughout the legal system. This can affect judges’ abilities to give due weight to decisions like Kedar Nath or Rangarajan, and can help prosecutors to claim sedition where none has occurred.
The CBFC’s appeal against Textures of Loss was dismissed on 15 February 2016. Once again, the Court cited Rangarajan. Despite the dismissal, this case remains a troubling example of how easily an overbroad sedition law can be used to entangle filmmakers and journalists in cumbersome legal processes.
This excerpt has been condensed.
Evan Rankin is with the International Human Rights Program (IHRP) at the University of Toronto’s Faculty of Law. Brendan de Caire is with PEN Canada.The report is the result of a joint research project by the IHRP; PEN Canada, the Canadian Centre of PEN International; and PEN International.