The basis for the governance of freedom of speech and expression through digital platforms is article 19(1) (a) of the Indian Constitution. Any restriction on the right to freedom of speech and expression on the internet should be within the contours of Article 19(2) of the Indian Constitution, i.e. no person can exercise this right in an arbitrary manner (eg. hampering the integrity of India). This guarantee of freedom of speech and expression is derived from International Covenant on Civil and Political Rights (ICCPR) which India ratified in the year 1979. Because of the far-reaching consequences of the offences over the internet in relation to freedom of speech and expression, the Information and Technology Act, 2000 and the Amendment Act, 2008, which, later became the base for the governance of electronic media, and subsequently for the criminalization of speech and expression online was formulated. Apart from the Information and Technology Act, 2000 the authorities in our country are using other laws either to investigate, arrest or prosecute the individuals forexpressing their views and opinions over the internet. One such law is that of Sedition, mentioned under section 124A of the IPC. Sedition can be any act to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government and generally endeavors to promote public disorder. Most of the time, it is considered as disloyalty towards the country with punishment extended to life imprisonment. It is interesting to note that even leaders like Mahatma Gandhi and BalGangadharTilak have been booked and imprisoned for this offence. Subsequently, Criminal defamation is described under Section 499 of the IPC. Criminal Defamation is basically the words, signs, imputations made by the accused with the intent to harm the reputation of a particular person or accused must reasonably know that his/her conduct could cause harm to the aggrieved person. Other than these penal offences, a person can also be booked under the Official Secrets Act, 1923, which criminalizes the disclosure, possession, or receipt of a wide range of documents or information without requiring proof that such acts hampers national security, fosters the culture of secrecy damaging the public interest. Journalists who report on matters of “intelligence” face the risk of prosecution under the said Act. Another provision which has been widely misused was Section 66A of the Information Technology Act, 2000, which was frequently used by the state machinery to arbitrarily arrest individuals for sending “offensive” and “annoying” messages over the internet. The constitutional validity of the said section was challenged and later struck down as being violative of Article 19(1)(a) of the Indian Constitution and failing to fall within the ambit of 19(2) of the Constitution of India by the Hon’ble Supreme Court.2 In order to charge a person under section 153A of the IPC, there must be an intention to promote disharmony or feelings of enmity, hatred or ill-will, or such feelings should be promoted as a result of words spoken or written and in case there are no such feelings, then the mere circumstance that there “may” be a tendency is not sufficient.3 Further the prosecution has to prove prima facie the existence of mensrea on the part of the accused.4 Even under Section 505 of IPC, a mere threat which causes no alarm to the Complainant does not constitute an offence under this section.5 Therefore, a mere expression of words, without any intention to cause alarm, would not suffice. Section 66C of the IT Act, 2000 prescribes punishment for identity theft and provides that “whoever, fraudulently or dishonestly makes use of the electronic signature, password or any other unique identification feature of any other person”. A post with a clear disclaimer that the contents are satirical cannot be an ingredient to charge the person under the above-mentioned provisions and in no way constitutes “fake news”. It is prima-facie evident that the person neither has any malicious intention to promote religious outcry amongst the society nor the satirical post caused an alarm in the society. It is funny how the police have booked the person for identity theft when there was no fraudulent or dishonest intention. The content of the post was only a satirical work of the person expressing his opinion and nothing more than that. The Torture of a Trial In a speech delivered in 2014, it was noted by the then Chief Justice R.M. Lodhathat the criminal justice system has deteriorated to such an extent that the process of going through the trial is a punishment in itself.6Six years later, these words have not lost their relevance. Rampant misuse of law coupled with ineptitude of the investigating agencies results in thousands of people languishing in jail pending trials for years at a stretch. The overburdened system leaves little respite for the defendant who not only has to bear expenses to engage a lawyer and face the possibility of arrest, but has to undertake apsychologically and emotionally taxing journey on the personal front. Repercussions also bear intensely upon professional life. The exhaustive remedies and procedure of the Indian laws keep the defendants engaged for a long time until their fate is pronounced upon by the Courts. Some of these offences are non-bailable and cognizable (meaning thereby that the police can arrest without a warrant) often leading to dire consequences for instance sedition and offenses against public tranquility such as promoting enmity between different groups on grounds of religion, race, etc. and doing acts prejudicial to maintenance of harmony. In matters concerning national security and public order, the lower courts show reluctance to grant bail. Even if ultimately the person is acquitted, the victory holds no value in the light of the ‘antinational’ tag which the media imposes even before the trial concludes. All this leaves little encouragement for the person whose voice has been silenced and opinion crushed. No freedom for the thought we hate? While the Supreme Court has elevated the right to access the internet to the level of a Fundamental Right under Article 19 of the Constitution7 , the lower courts often endorse the concept of Heckler’s Veto8 by passing orders of injunctions and taking down “satirical content”. For instance, in the year 2012, AseemTrivedi, a famous cartoonist was arrested on the charges of sedition for drawing cartoons allegedly insulting the Indian Emblem, including the Constitution, his cartoons also included one ‘depicting the parliament building as a lavatory buzzing with the flies’.9Subsequently, he was released and the Court held that freedom of speech and expression allows one to express one’s indignation towards the Government and so long as the cartoons do not incite violence or have the tendency to create any public disorder, it would not amount to sedition.10 Human evolution and progress are attributable to the power of thought and history has shown us that any attempt to control beliefs and thoughts is doomed to fail. Sadly, our country stands at a place today where many groups and entities voice their disapproval over the slightest of issues that hurts their sensibilities. Nowadays,freedom to express oneself freely comes with a consequent opportunity to attack. The result is public protests, criticism and sometimes even violent threats to the makers of satirical content. The standard of reasonable restrictions seems as clouded as ever. Consequently, the authorities are quick to issue a ban on such content. It is mostly the journalists, activists, artists and social media content creators who bear the brunt. It is high time we realise that suppression can never be adopted as a permanent policy. Wrongful abuse of process and power It seems that the Police is using the law irresponsibly to target individuals with slightly different opinions in blatant disregard of the rule of law. More often than not, the Police act disproportionately to the law. It is a common practice for the Police to put charges negligently in defiance of the law and judicial guidelines. Most of the proceedings are mere tools of harassment and abuse of the process of law. The ease of filing complaints directly before the Magistrate, without the benefit of a police report, makes the process prone to abuse. Every FIR registered against free speech sends chilling effects in the society and leads to more and more people adopting self-censoring tendencies and feelings that legitimate dissent is not (S)recognised in our country. Even the sedition laws have to be read in only in line with “activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace” as per the mandateof the SC in case of KedarNath Singh vs State Of Bihar.11Moreover, the Freedom of Speech and Expression, a highly treasured value in the spirited democracy cannot be scuttled or abridged on the threat of criminal prosecution and should be based on reasonable restrictions as per the mandate of Article 19(2) of the Indian Constitution.12 Conclusion There seems to be no balance between the right to free speech and expression as under the Constitution and                                                      FIR AGAINST SATIRE

the unreasonable restraints that are placed on the exercise of this right. No doubt over the past few decades the global use of the Internet has risen exponentially, with billions connected and sharing memes and satires but expression of dissent or criticism of any of the state machineries often carries with it the fear of punishment. In a democracy, expression of thoughts might not find favour with all; nevertheless, it should still have space in discourse. As noted by Justice Sanjay KishanKaul, “A liberal tolerance of a different point of view causes no damage. It means only a greater self restraint. Diversity in expression of views whether in writings, paintings or visual media encourages debate. A debate should never be shut out. ‘I am right’ does not necessarily imply ‘You are wrong’. Our culture breeds toleranceboth in thought and in actions”.

Author: jageshwar pateriya,
jagran lakecity university/student

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