“There is freedom of speech but we cannot guarantee freedom after speech..” Ugandan dictator, Idi Amin Dada.
India in 2022 is hardly the turbulent Uganda of the 1970s but there is growing evidence of an ominously creeping ‘democratic dictatorship’ that afflicts Indian public life across the political divide. The immediate casualty in a republic of perpetually offended sentiments is the constitutional guarantee of free speech, increasingly hostage to a vicious cycle of punitive action caused by a vengeful political leadership, partisan police and a weak judiciary.
In Maharashtra, a young woman actor spent 40 days in jail for sharing an objectionable post on NCP leader, Sharad Pawar; in Gujarat, a film-maker was arrested for tweeting an old photo of home minister, Amit Shah with an IAS officer accused of massive corruption; in Bengal, a you-tuber was arrested for allegedly abusing state chief minister Mamata Banerjee; in Uttar Pradesh, an 18 year old schoolboy was arrested for posting an ‘offensive’ image of chief minister Yogi Adityanath on social media.
Each of these instances – and there are many more – follow a familiar pattern. A powerful and vindictive ruling party system, be it in states or at the Centre, cannot tolerate any ‘insult’ to their leadership so it gets a political proxy to file a criminal complaint. The local police acts with uncommon haste, arrests the individual under the wide ambit of section 153 of the Indian Penal Code (IPC) – the provision includes ‘acts likely to disturb public tranquility’ — and produces them before a lower court magistrate who rejects any bail plea. Within days, many more FIRs are filed, fresh cases are registered, thereby encircling the individual in a legal tangle even while in custody. The ‘Supreme Leaders’ who have been allegedly defamed stay silent right through, thereby offering tacit support to the campaign. In most cases , the charges are specious but as the Chief Justice of India has recently admitted, ‘the process is the punishment’.
When this form of untrammeled power politics is injected with a heavy dose of religion, then the mix is even more toxic because it draws in section 295 of the IPC by attracting the offence of ‘hurt’ religious sentiments. The case of the fact-checker Mohammed Zubair is a classic example. Arrested initially by the Delhi police for a relatively innocuous four year old tweet within days of having shared clips from a tv debate in which a since ‘suspended’ BJP spokesperson Nupur Sharma made certain inflammatory remarks about the Prophet, Zubair was literally hounded and taken from one UP district court to another as the FIRs against him kept piling up. It required the Supreme Court to step in and free him and literally warn the police against the mala fide use of the power of arrest.
Unfortunately, even when the court uses its powers to stop brazen state overreach and reaffirms the ‘bail not jail’ principle, it finds itself in the crosshairs of increasingly polarized public opinion and self-defeating whataboutery. When Zubair, for example, was released on bail and protected from multiple FIRs by the apex court, a terribly slanted campaign was initiated, both on social media and in tv studios, to question why another bench of the same Supreme court hadn’t provided similar protection to Nupur Sharma. While the refusal of the court to club together the FIRs in the Nupur case is questionable, the two cases, on either side of the political divide, have one stark difference: Zubair’s liberty was at stake having spent 24 days in jail while Nupur has not been arrested and instead has been provided state protection.
Truthfully, neither a Zubair nor a Nupur ought to be arrested. The former’s tweets may appear ‘offensive’ to some but they cannot by any measure be seen to wilfully promote religious hatred: if anything, his tweets only expose the hate-mongers across communities who speak out with ever greater impunity. A rabble-rousing Nupur Sharma may have crossed the line in yet another high-decibel ‘news as noise’ tv debate but to seek her arrest for ‘blasphemy’ even though section 295 doesn’t specifically use the word, is to exploit an outdated colonial law to persecute an individual. Once she had apologized, the matter should have been closed. The greater responsibility, in fact, rests on the tv channels that literally seek out such shrill talk to only to boost their viewership ratings.
Ironically, during the Zubair hearings in the Supreme Court, the Additional Solicitor General (ASG) SV Raju defended Bajrang Muni, a saffron robed Mahant who has openly threatened the rape of Muslim women by claiming that he was a ‘respected’ religious leader. “When you call a religious leader a hate-monger, it raises problems,” claimed the ASG. Such an egregious defence of a serial offender should have been called out immediately. Sadly, caught between between an intolerant, despotic political class that seeks to crush dissent on one hand, and rabid warring religious groups on the other, free speech is now a matter of political convenience: a Bajrang Muni with state patronage will always get away.
The spread of unregulated social media hasn’t helped matters either. Meant to ‘democratise’ public opinion with every individual being viewed as a ‘citizen journalist’, the reality is of a shrinking universe for any rational dialogue: abuse, slander, hate-spewing content that can incite violence is on the rise. In 2020 alone, official data shows that as many as 1,834 people were arrested for their statements and acts, often for social media posts.
With no clear lines drawn between free and unlawful speech, there is a growing sense of unease at speaking out . When the political class and their cheerleaders are quick to take offence at the slightest provocation, when police choose to ‘weaponise’ FIRs, when courts don’t intervene consistently, then very few will show the courage to stand up to state power. But if the legal and political elite wont walk the talk, then enlightened citizens surely must. Recall how in 1988 when Rajiv Gandhi’s government tried to bulldoze a defamation bill that gave sweeping powers to the state to curb ‘criminal imputation’ and ‘scurrilous writings’, there were unified street protests, led by the entire media fraternity, but also including lawyers, students, trade unionists and intellectuals. The widespread public outrage worked: Rajiv Gandhi was forced to withdraw the bill. How many editors or indeed civil society groups will raise their voice today when free speech is under sustained assault? Post-script: At a recent media conclave, Congress MP and senior lawyer, Dr Abhishek Manu Singhvi expressed concern about tweeting on contentious issues for fear of attracting a criminal complaint. When the country’s top lawyer is worried about being ensnared by a rotting criminal justice system, what hope do average citizens have?