HRW: Govt urged to stop treating critics as criminals

IN Special Reports | 25/05/2016
The Indian government should repeal or amend both recent and colonial era laws that are used to criminalize peaceful expression.
Excerpts from the HUMAN RIGHTS WATCH report


Excerpted from the Human Rights Watch report,

“Stifling Dissent: The Criminalization of Peaceful Expression in India”


Counterterrorism Laws

Counterterrorism laws such as the Unlawful Activities (Prevention) Act (UAPA) have also been used to criminalize peaceful expression. In India, counterterrorism laws have been used disproportionately against religious minorities and marginalized groups such as Dalits. Between 2011 and 2013, the authorities in Maharashtra arrested six members of Kabir Kala Manch, a cultural group, under counterterrorism laws, claiming that they were secretly members of the Communist Party of India (Maoist), a banned organization. The authorities produced no evidence of such membership, however, and the members dismiss the claim as entirely unfounded. The Pune-based group of singers, poets, and artists consists largely of Dalit youth and uses music, poetry, and street plays to raise awareness about issues such as oppression of Dalits and tribal groups, social inequality, corruption, and Hindu-Muslim relations.

Those charged with violating the counterterrorism laws are considered “anti-national,” so simply being charged can have a severe impact on the lives of the accused and their families, even if they are ultimately judged innocent. Mumbai-based lawyer Vijay Hiremath, who has worked on counterterrorism-related cases, told Human Rights Watch:

“They will be under surveillance and police will keep a watch on them. It will be difficult for them to lead normal lives even after acquittal because whatever they do will be looked at with a lot of suspicion.”


The Process is the Punishment

Going through the legal process in India can often be a punishment in itself. Defendants in the country’s criminal justice system often face lengthy, drawn-out proceedings. In some cases, judges also appear to be poorly trained in issues of freedom of expression and fail to heed Supreme Court guidance when it comes to imposing limits on peaceful expression.

While the higher courts, and particularly the Supreme Court, often end up dismissing cases brought under laws criminalizing peaceful expression, the dismissals are often too late to protect those arrested or charged from serious consequences. Some offenses under these laws can be non-bailable and the accused may be taken into pre-trial custody. Laws dealing with sedition, terrorism, and national security extract a heavy price from the accused during the trial process. Legal proceedings can take a heavy toll on the financial resources of the accused.

‪For instance, the Official Secrets Act, a law that criminalizes the disclosure, possession, or receipt of a wide range of documents or information without requiring proof that such acts threaten national security or public order, fosters a culture of secrecy that runs counter to the public’s interest in access to information about government activity. Journalists covering defense or intelligence matters are particularly at risk of being charged under the law. The penalty for “spying” under the law allows for imprisonment of up to 14 years. While some of the cases filed under the Official Secrets Act are ultimately dismissed by the higher courts, the dismissal does not obviate the harm suffered by those charged.

While the Official Secrets Act is not as frequently used as some other laws discussed in this report, such as sedition or criminal defamation, it has a serious chilling effect. The accused can end up spending months, or even years, in jail without being granted bail. One of the most prominent cases of misuse of this law is that of journalist Iftikhar Gilani. His 2002 arrest also illustrates the toll the process takes on the accused. Gilani was accused of possessing a classified document even though the document was available both on the Internet and in public libraries in Delhi. He was acquitted in January 2003, but spent seven months in jail without bail while the case was pending. Gilani said it took four months for him to even get a hearing for bail, and then his application was rejected. Those accused under the OSA are considered serious enemies of the state, which makes obtaining bail extremely difficult.

“By the time you prove that the material you have is not a secret, you may have been in jail for many years. That’s the kind of bias judges have when someone is charged with OSA,” said Trideep Pais, a lawyer who has dealt with Official Secrets Act cases in Delhi.

Other laws which criminalize peaceful expression can be quite punishing, too. For instance, criminal defamation cases filed by Tamil Nadu state have been dragging on for years and require the accused, many of whom are journalists and editors, to appear in court every couple of weeks. At most hearings, the case is simply adjourned and the date for a new hearing is set. This costs both time and money, as the editor of Junior Vikatan magazine, P. Thirumavelan, who faces several cases himself, said.

The government is not interested in pursuing a case. The intention of the government is only to create a fear psychosis among journalists and newspapers. Because if the government were really serious, they would counter with evidence in a court of law.

‪According to media lawyer Gautam Bhatia, criminal cases restrict speech to a far greater extent than civil cases, by placing onerous burdens upon the accused. In an article on the news website, Bhatia wrote:

The threat of arrest at any moment, and the possibility of eventual imprisonment exercise a deep and pervasive chilling effect upon would-be speakers; the requirement that the accused must be present at the place of hearing, coupled with the fact that there is no limit to the number of cases that can be filed, is an open invitation to harassment. And even if the accused has a good defence, he is only allowed to bring up his defence after the trial commences. Consequently, in even the most frivolous of cases, the accused must face the legal process throughout the long pre-trial stage, which itself has the potential to drag on for months, if not years.

As a result, those faced with even unfounded criminal charges often withdraw the “offending” words rather than endure the often prolonged legal, financial, and personal impact of those charges. On the other hand, there is little consequence for the complainant if the case is found to be frivolous.


The Heckler’s Veto

Several Indian laws prohibit “hate speech,” such as speech that causes enmity between different groups of people, or speech that insults religion. While the goal of preventing inter-communal strife is an important one in a country as diverse as India, that goal should be pursued through prompt and vigorous prosecution of perpetrators of violent acts and incitement to violence, not through broadly worded laws limiting expression.

India’s hate speech laws are so broad in scope that they infringe on peaceful speech and fail to meet international standards. Intended to protect minorities and the powerless, these laws are often used at the behest of powerful individuals or groups, who claim that they have been offended, to silence speech they do not like. The state too often pursues such complaints, thereby leaving members of minority groups, writers, artists, and scholars facing threats of violence and legal action.

The example of Maqbool Fida Husain, among India’s best-known artists, is an emblematic case of public intolerance. Husain was forced into exile after Hindu right-wing groups targeted him, accusing him of painting nude pictures of Hindu gods and goddesses, and thus offending their sentiments. Hardline Hindu groups attacked Husain’s house and art galleries which exhibited his works, but the governments in Gujarat, Maharashtra, and Delhi states failed to protect him or his work. Instead, Bal Thackeray, a senior leader from the ruling Shiv Sena party in Maharashtra state, endorsed the attack on Husain’s home in Mumbai in 1998, saying, “If Husain can enter Hindustan [India]…why can't we enter his house?” Private individuals filed cases against him in different cities across the country under criminal hate speech and obscenity laws, forcing him to travel around the country to answer the complaints.

The Delhi High Court in 2008 upheld Husain’s right to free speech and dismissed charges of obscenity and of hurting religious feelings against him in a case related to the “Bharat Mata” painting. The court said:

‪There should be freedom for the thought we hate…It must be realised that intolerance has a chilling, inhibiting effect on freedom of thought and discussion. The consequence is that dissent dries up. And when that happens democracy loses its essence. 

Despite a ruling by the Indian Supreme Court that freedom of expression cannot be suppressed on account of threats of violence because “that would be tantamount to negation of the rule of law and a surrender to black mail and intimidation,” the police routinely arrest individuals based on the reactions to their speech. For instance, in November 2012, Shaheen Dhada and Rinu Srinivasan, both 21 years old, were arrested in Maharashtra for a Facebook post questioning the shutdown of Mumbai following the death of a powerful political leader. The police acted after the politician’s supporters complained and mobs engaged in violent attacks.

Similarly, Shirin Dalvi, editor of an Urdu newspaper in Mumbai, was charged by police with “outraging religious feelings” with “malicious intent” in January 2015 after numerous First Information Reports (FIRs, or criminal complaints) were filed by individuals and Muslim groups offended by her reprinting of a cartoon originally published by the controversial French magazine Charlie Hebdo. Dalvi said she had to go into hiding and temporarily move away from her house after her release on bail to escape the constant harassment and threats on the phone.‪ The cases against her are pending at time of writing.

In January 2015, local caste groups in Namakkal village in Tamil Nadu protested against a book by resident Tamil author Perumal Murugan. They burned copies of his book, shut down shops, and asked the police to take action against him. Police and district administration officials, instead of protecting Murugan from angry mobs, asked him to tender an unconditional apology. As a result of the harassment, Murugan decided to give up his writing career and withdraw all his works from publication.


International Law

In 1979, India ratified the International Covenant on Civil and Political Rights, which sets forth internationally recognized standards for the protection of freedom of expression. Yet, as detailed here, a series of Indian legal provisions, some of them used by prosecutors and litigants on a regular basis, continue to restrict speech in ways inconsistent with that covenant. In some cases, the Indian Supreme Court has properly issued rulings narrowing the scope of the laws, but they continued to be misused, making clear that the laws themselves need to be amended or repealed if India is to comply with its international obligations.

‪Importantly, the consequences of violations go beyond improper limits on speech. As former UN Special Rapporteur on freedom of expression Frank La Rue has stated, freedom of expression is not only a fundamental right but also an “enabler” of other rights, “including economic, social and cultural rights, such as the right to education and the right to take part in cultural life and to enjoy the benefits of scientific progress and its applications, as well as civil and political rights, such as the rights to freedom of association and assembly…. [A]rbitrary use of criminal law to sanction legitimate expression constitutes one of the gravest forms of restriction to the right, as it not only creates a ‘chilling effect,’ but also leads to other human rights violations.”


Key Recommendations

Indian laws and practices that criminalize peaceful expression are inconsistent with its international legal obligations, undermine rather than strengthen efforts to combat communal violence, and, because freedom of expression is an enabler of other rights, threaten to erode human rights protections more generally.

Human Rights Watch recommends that India:

  • Develop a clear plan and timetable for the repeal or amendment of laws that criminalize peaceful expression as detailed at the end of this report and, where legislation is to be amended, consult thoroughly with civil society groups in a transparent and public way.
  • Drop all prosecutions and close all investigations into cases where the underlying behavior involved peaceful expression or assembly.
  • Train the police to ensure inappropriate cases are not filed with courts. Train judges, particularly in the lower courts, on peaceful expression standards so that they dismiss cases that infringe on protected speech.


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