See you in court

Aggressive legal action, noise from media in India have led to softening laws on freedom of speech, expression.

Eight years ago, The Hindu, our most revered newspaper, got into trouble. It wrote something which angered Jayalalitha, who was then, as she is again now, Tamil Nadu’s chief minister.

If I remember it right, the Tamil Nadu legislature had jailed or was about to jail The Hindu’s journalists, for breach of privilege. The media was incandescent with rage. The Indian Newspaper Society called a session where a couple of editors and a couple of other people spoke.

MJ Akbar said something about how The Hindu’s reputation would save it. I spoke angry words about how sub-clauses in India’s laws violated the Universal Declaration of Human Rights.

A lawyer, the last man to speak, said The Hindu should fight it in court and cited some laws and some judgments. I cannot remember the name of that lawyer and reports of that event name only Akbar and me.

N Ram, who was then editor of the paper, summed up. Though he thanked all of us, he said he would take the advice of that lawyer. The fact is that the last few years have shown that he was quite right. The trend in India is generally towards liberalism and a softening of laws and their application. However, this has not come from the government. It is the courts and the noise of the media that has made it possible.

When the cartoonist Aseem Trivedi was arrested recently for showing India’s parliament as a commode, the Bombay High Court was angered by the police’s registration of someone’s complaint. “Why didn’t you apply your mind before charging him with sedition and arresting him? Today you arrested a cartoonist. Tomorrow it will be a filmmaker or a screenplay writer. We live in a free society and enjoy freedom of speech and expression. Sedition is a pre-independence [law],” Justices DY Chandrachud and Amjad Sayyed, said, according to a report in The Hindu.

The fact is that all of our laws are pre-independence laws, the Indian Penal Code (IPC) having been written by Macaulay in the 1850s. It is the law that is to blame, not the police.

The judges added: “You cannot arrest anyone on frivolous grounds. You arrest a cartoonist under sedition and detain and breach his liberty. Have you read 124A [of the IPC]?”

I have, and it reads: “Whoever by words, either spoken or written, or by signs, or by visible representations, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment ...”

I am not sure what the police did wrong here. They acted per the law. My copy of the IPC, written by Ratanlal and Dhirajlal and annotated by Chandrachud and Manohar, indicates that the police were right to register the offence.

The court “underlined the need for laying down parameters for invoking Section 124”.

This is important because the law is sweeping and can be deployed carelessly. For instance, 8,000 people have been charged with sedition for protesting against a nuclear power station in south India. Earlier this year, my journalist friends at the Times of India, Bharat Desai and Prashant Dayal, had charges of sedition dropped against them. The two men had been booked by Ahmedabad’s police commissioner OP Mathur for writing against him.

Homosexuality was decriminalised in India this year because of strong media support and liberal courts. The government only mumbled its assent. Bring such things to court, as Trivedi did, and they will be exposed.

In Pakistan, someone has challenged the three-year extension given to Army Chief Ashfaq Parvez Kayani. It is possible and perhaps likely that this may not go anywhere. But that’s all right. The thing about such action is that it forces people to take a position.

Continued and aggressive legal action in support of freedom, as that unnamed lawyer said, is the right way forward for us.

Published in The Express Tribune, September 16^th, 2012.