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Freedom of expression includes the freedom to offend

G Ananthapadmanabhan“What is freedom of expression? Without the freedom to offend, it ceases to exist.”

Salman Rushdie’s words were probably never more relevant. In the last few days, every morning I have woken up to read reports about arrests and violent action, about authorities coming down hard on anyone who dares to question, criticise or offend anyone in power.

Even as I write about Aseem Trivedi, I am acutely aware of the situation in Kudankulam, where people like Udayakumar, Pushparayan and others from the People’s Movement against Nuclear Energy face similar charges of sedition. I am aware too of the government’s recent efforts to curb freedom of expression on the internet through the Information Technology Rules.

Aseem Trivedi
Aseem Trivedi’s cartoons led to his being arrested and charged with sedition. File pic

The right to freedom of expression is recognised in Article 19 of the Constitution of India and Article 19 of the International Covenant on Civil and Political Rights, to which India is a state party. The Supreme Court, just this week, in laying down guidelines on media reporting of court proceedings has reiterated its position that the freedom of speech and expression is not an absolute right. Indeed it is not. But the circumstances under which it can be restricted are very, very limited.

Under international human rights law, the freedom of speech and expression can only be restricted in two circumstances: (a) for the respect of the rights or reputations of others; and (b) for the protection of national security or of public order, or of public health or morals. Such restrictions must be demonstrably necessary and proportional. The UN has also made it clear that prosecuting journalists for disseminating information of legitimate public interest that does not harm national security is inconsistent with these obligations.

It is evident that the actions taken by the authorities in the case of Aseem Trivedi do not pass the test of being compatible with international human rights law.

You can apply this test to any curb on freedom of expression that you come across. Does the arrest of the Jadavpur University professor in Kolkata pass this test? What about the case of the farmer in West Bengal?

Even as we proudly proclaim ourselves to be the world’s largest democracy, it is time to pause and think about the very undemocratic law under which expression can be branded as sedition. Section 124A of the Indian Penal Code, which defines sedition as an act that brings hatred or contempt, or attempts to excite disaffection towards the government, was a law originally enacted to stifle the dissent of the independence movement. Mahatma Gandhi called it “the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.” Bal Gangadhar Tilak, Annie Besant and Gandhi himself were all convicted of sedition. To continue to use this colonial era relic even today is undemocratic in every possible way.

India needs to uphold its international obligations and respect the right to freedom of expression. It must ensure that people are not subject to criminal prosecution for peaceful criticism, even if what they say is perceived to be offensive.

We need to join hands to call for the immediate release of Aseem Trivedi and for the charges against him, including the charge of sedition, to be dropped. We need to urge the Government of India to stop using the sedition law against those who peacefully exercise their freedom of speech and protest. We need to remind the elected leaders of the world’s largest democracy that it still is one.  

— The writer is the Chief Executive of Amnesty International (India). To express your views, write to feedback@amnesty.org.in

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