Truth to power

The law should not restrict freedom of speech in a democracy

Over the past decade, the space for freedom of speech and expression guaranteed by the Constitution of India has been under increasing threat. A growing number of Indian citizens have been hauled before courts and thrown into jail merely for criticising and parodying political leaders, or revealing corruption and other scandals perpetrated by state authorities. A number of these arrests are made under the sedition laws (with assassination conspiracies occasionally thrown in). How does this development square with Constitutional guarantees under Article 19 (1) (a)? Politicians may drone on about the “anti-national” proclivities of those who bravely speak truth to power. But it took a Supreme Court judge, Justice Deepak Gupta, to point out why they’re dead wrong. Justice Gupta, 64, was elevated to the apex court’s Bench in 2017. He is one of the more low-key judges, though he did attract headlines that year for hearing and disposing of 33 cases in a single day.

Unlike the Famous Four who held an unprecedented press conference to highlight anomalies in the then Chief Justice’s allocation of critical cases, Justice Gupta spoke truth to power in a more modest setting. He was delivering the valedictory address at a workshop organised by a non-government organisation in Ahmedabad on the topic “The Law of Sedition in India and Freedom of Expression”. His lecture, however, proved a tour de force for its clear explication of the history and legal intricacies of sedition law. No surprise, the speech attracted national headlines.

The burden of Justice Gupta’s speech was that “the right of freedom of opinion and the right of freedom of conscience … include the extremely important right to disagree”. He cited several landmark judgments to make the point that “[a]s long as a person does not break the law or encourage strife, he has a right to differ from every other citizen and those in power and propagate what he believes is his belief”. The law of sedition, on the other hand, originated during the Raj, when the British sought to suppress dissent to their exploitative ways. Its most invidious provision covered comments expressing disapprobation of the administrative or other actions of the government “that excite or attempt to excite hatred, contempt or disaffection”. This naturally provided generous scope for judicial interpretation that usually ended in jail sentences. This was the law India inherited at independence but successive Supreme Court judgments narrowed this interpretation to state that sedition did not apply if no law and order problem was explicitly created.

Yet, Justice Gupta highlighted several cases where the law continued to be grossly misused, including invoking the notorious Section 66A of the Information Technology Act until the Supreme Court invalidated it in 2015. Justice Gupta rounded off his speech with some sage advice for India’s political leaders: “Criticism of the policies of the government is not sedition unless there is a call for public disorder or incitement to violence. The people in power must develop thick skins.” In a country that demonstrably prides itself on its democratic credentials, and one that remains ever eager to attract foreign capital and expertise, Justice Gupta’s message could not have been better-timed.