More Sinister Attack On Free Speech Happening To Propagate So-Called Nationalism : Sr Adv Akhil Sibal

Mehal Jain

7 Feb 2021 2:25 PM GMT

'The attack is on the alternative narrative of dissent which is at the heart of the freedom of speech'

"What we are seeing of late, the attacks on journalists and cinema personalities, is a different breed. What is happening now is not simply a temporary blip, but it is a little more sinister. It is not only an attack on the freedom of speech, but it is a larger narrative orchestrated to propagate the so-called nationalism and to attack the freedom of speech as a value! The attack is on...

The lawyer was addressing the virtual audience at the webinar on 'Criminalising Journalism and Cinema' organised by Live Law.

"The fault lines have been exposed, not within the law but within its implementation. But even this divergence between the law in principle and how it is applied- this has been the case for decades, it is not of recent vintage", he continued.

Mr. Sibal remarked that those who dissent are branded as terrorists and anti-nationals- "And it is not just the IPC, but the terror laws such as the UAPA, which have more stringent conditions of bail, which are invoked in these cases. Terms like 'urban naxals' are being coined and spread"

"While we have not reached the stage of the Emergency, when people caution that there is an undeclared emergency, it must alarm us at a deeper level. We are reaching a place where those spaces, which are available to us today (for condemnation of the State and the police and the criticism of the Judiciary), are starting to shrink", he continued. This was in response to the comments made by veteran journalist N.Ram, another co-panelist, that we have not yet reached a stage comparable to Emergency.

As regards the attacks on the media, he explained that it is not simply limited to selectively targeting those who are critical of the prevailing dispensation- "For example, look at Maharashtra and the things happening there even though there is a different dispensation. That is also disquieting. I may find the brand of journalism of a certain individual to be abhorrent. I also believe that such an individual has also crossed the line and fallen foul of the law by propagating hate speech on his shows. The state machinery in Maharashtra appears to have been misused. There is a tit-for-tat policy, to get back at the previous dispensation by the new party in power"

"Things have become political – there is a takeover of the media to make it less independent by encroaching on it at a financial and other levels...we also have a transformation from a media that we recognised as one which broadly, apart from a fringe which was called 'yellow journalism', observed a certain neutrality. The neutrality and self-regulation is lost. The objectivity of news reporting has been lost in the shrillness of opinions. This also is an excuse to the government to interfere and control the media. When the laws are in the hands of the government and the police is also in its control, it becomes a justification for the public. We need to recognise these undertones and introspect on how to address them", expressed Mr. Sibal.

He explained that the law cannot be formulated with precision for each case, that the law is forward-looking and is supposed to be broad enough for different fact scenarios. The formulation has to be flexible enough to apply to every case; to make it precise would limit its application. It has to be something which would stand the test of time. It is dependent on the State to implement it and on the court to interpret it – but its misapplication cannot be an argument to remove the law all together.

"There is an increasing inconsistency in even the higher judiciary – while there was the robust judgement in Arnab Goswami's case, but when the Tandav controversy went to a different bench of the same court, where there were FIRs in six different states and the petitioners would have had to run from state to state for anticipatory bail, no protection was granted. Arnab got the protection, and rightly so, and so did Amish Devgan. (By such inconsistencies), the rule of law is undermined. There has to be some certainty of outcome, some degree of predictability which is now getting lost", he said.

However, the senior lawyer also pointed out that there are certain sections of the TV media which have gone overboard and have crossed the line. He wondered how the media is to be regulated if it is unable to regulate itself, if the TV channels withdraw their membership of the self-regulatory bodies when the latter hold them accountable to standards. "The regulation cannot be left in the hands of the police and the government", he said.

"The freedom of the press does not accommodate brazen hate speech. This is a slippery slope of the implementation of problematic laws by the police and government – to prosecute you criminally when you fall foul. The government will obviously go after those who annoy it and not the ones who do not annoy it. There is a redefining of democracy to make it majoritarian. It is the rights and freedoms relating to the voice of dissent which need protection, because the voice which is consistent with the prevailing viewpoint needs no protection as it enjoys the protection of the majority", he said.

Communal Far-Right Going All Out In The Name Of Majoritarianism To Attack Freedom Of Speech : N Ram

On the reading down of laws like criminal contempt of court, criminal defamation, sedition

Mr. Sibal opined that while it is an effective argument that some laws need to be struck down or changed, he pointed out that these offences have been in the statutory framework from the beginning.

"But what is happening today is that these laws are being misused. To remove sedition all together is one argument. But the law is not wrong because most cases do not result in conviction. So the problem is not in the law but in its implementation. In 2020, nationwide, there were 80 cases of sedition. Ever since the National Crime Records Bureau started gathering data from 2014 onwards, the maximum number of cases of sedition came to be registered in 2020. Why?", he asked.

He canvassed the latest of a series of cases being registered against journalists, where the police in Uttar Pradesh's Rampur district have registered a FIR against The Wire's founding editor Siddharth Varadarajan for tweeting a story on the claims made by the family of the farmer, Navneet Singh, who was killed during the Republic Day tractor rally.

"There was the case of the unfortunate death of Navneet Singh. The reason is not clear. There was some reporting and now there are sedition charges. Perhaps the reporting was wrong, perhaps there was negligence. But can it be said that it was with a clear intent of inciting violence? The Supreme Court had, in Kedar Nath (1962), read down section 124A and said that its applicability is limited to acts involving intention or tendency to create disorder, or disturbance of law and order; or incitement to violence. What more should the Supreme Court say? The flaw is not in the law but in its implementation!", expressed Mr. Sibal.

"Criminal defamation is also misused. But it can be considered against TV channels and the media which tarnish the reputation of people, hold detailed trial discussions, name one as the accused or even pronounce him guilty in the people's court, even before the trial has taken place! The person's life is over! What should he do? Should he resort to civil defamation and wait for 10 years in the court? They are scared only of criminal defamation", continued Mr. Sibal.

He distinguished the Indian scenario with the facts and circumstances of other jurisdictions- "In England, a defamation suit is resolved in one year. There are hundreds of thousands of pounds which are payable in penalty. But who would be scared of civil defamation in India?"

"In 2008, the Delhi High Court quashed the FIRs against M. F. Hussain (for hurting public sentiments through obscene paintings) in a powerful judgement, saying that there is misuse of legal provisions. It spoke of harassment of artists by such coordinated efforts of complaints which are replicated all over the country, requiring the person to run from pillar to post. It noted that till the law takes its course, the punishment is already meted out. The court asked the government to bring changes. But this observation fell upon deaf ears", continued Mr. Sibal.

He asserted that there is a need to revisit the situation as regards what we can do at the initiation stage – make the offence non-cognizable and subject to oversight, regulation of police powers, disciplinary action when judgements are flouted by the police.

"There is no point in the Supreme Court giving judgement after judgement- it is meaningless unless the person implementing the law at the ground-level, and who has his own perception of right and wrong, is made accountable", he explained.

He was of the view that even though it is being said that there is a growing intolerance, the society actually is more tolerant than it appears to be on the outside- "There are political forces at play. These are all politically motivated offences- which tap on the underlying prejudice which results in such tacit or overt support, which would not have come out otherwise"

"We need to have more courage to speak out and speak up, else what we have cherished will slip through our fingers", he cautioned.

On publishing/production houses passing the buck, contractually, to artists

"When it comes to criminal laws, you can't contractually pass the buck. Suppose one writes a screenplay, plagiarising the creating work of another which is protected by copyright, so far as civil liability is concerned, you can say that the writer had assured you that it is his or her original work. But in criminal cases, the creator and the publisher, all are liable. As in the Taandav case, the management of Amazon, the actors, everybody has been roped in. In case of newspapers also, the journalist, the editors and even the owners are covered. The criminal law casts its net wide – both the person who created the content and the person who disseminated it are held liable", canvassed Mr. Sibal.

He pointed out that the same has a chilling effect over a creative person – there is a fear, terror that they experience. For any original creative work, freedom to think and to write is the source of creativity and if one is worried and looking over their shoulder and second-guessing themselves at every step, it impedes the creative process. There is a pre-censorship even before the expression has emanated from the artist. This lurking fear strikes at the heart of creativity, allowing the State machinery to terrorise one.

"Ultimately, these cases don't stick or result in a conviction. But the punishment is the process that you are put through – you need to run to a lawyer, you need to determine how to pay him, there is hate mail, your good name is tarnished, your family is worried, you don't know when the police will come knocking at your door", advanced Mr. Sibal.

He pointed out that there is no equality of bargaining power, and if the individual does not cooperate in signing the contract in an approved format, which is a take-it or leave-it offer, the big production house, which has prominent lawyers on its payroll, will not accommodate him.

However, he also indicated a reprieve- "You can push back so far as clauses for dispute resolution are concerned and which are sometimes onerous. Clauses which envisage arbitration in far-off places, away from where the creator resides, clauses which favour the entity with the greater bargaining power, which say that in the event of a dispute, they will appoint the arbitrator- these clauses will not hold up in court. Even if you have agreed to them, the agreement will be unlawful. You may have signed the agreement, but you can still go to the court and have a neutral arbitrator appointed", elaborated Mr. Sibal.

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More Sinister Attack On Free Speech Happening To Propagate So-Called Nationalism : Sr Adv Akhil Sibal

Mehal Jain

'The attack is on the alternative narrative of dissent which is at the heart of the freedom of speech'

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