How do I silence thee? Let me count the ways. I could silence you with a bullet through your head, like the daily Hindustan’s senior reporter Rajdev Ranjan was silenced in Bihar last week. Like Akhilesh Pratap Singh, reporter for a local television channel, was silenced in Jharkhand last week. Or I could silence you by dangling handcuffs in your face, promising to clap you in jail if you made the powers that be uncomfortable. Like the Supreme Court promised last week. Responding to petitions filed by Subramanian Swamy, which Rahul Gandhi, Arvind Kejriwal and several others joined (called Subramanian Swamy vs Union of India), the court ruled in favour of continuing to criminalise defamation.
In short, it approved of Section 499 and 500 of the Indian Penal Code that make “defamatory” words, signs, visible representations and even irony punishable by up to two years in prison, or a fine or both. And in the process of announcing that these laws — put in place by the British much before the Indian Constitution was written — were indeed constitutionally valid, the Supreme Court also seemed to suggest that one’s reputation was a fundamental right and far more precious than rights like freedom of speech and expression. And by endorsing defamation as a criminal offence, the court effectively told us that harming one’s reputation would not be just an offence against a private individual, it would be a crime against society and the State would have to step in and punish the offender.
That’s tough. First of all, one’s reputation is a social construct dependent on available information — and in an information age, in a nuanced world, reputations are ever changing, even if in minute ways. And free speech allows us to go beyond reputation and see the real picture. A big corporation with a reputation of having impeccable standards can be revealed to be dangerously substandard in certain aspects. A big leader with a clean reputation can turn out to be hugely corrupt. An adorable socialite can be a cold-blooded murderer. By criminalising inconvenient words and opinions, we are blocking the path to truth.
We are helping to muzzle the media and to censor public opinion. When protecting your reputation gets right of way over the fundamental right to freedom of speech and expression, our democracy may be derailed. Second, in criminalising defamation there is a disturbing disinterest in truth. Not only do you regard the mask to be more important than the face, you also do not care if the one accused of defaming the face is telling the truth. If a report reveals ugly things about a powerful person, it is not enough for the reporter to prove that his facts are right. He is still guilty of the crime of defaming the person. Only if he can prove that his revealing such ugly facts is in the interest of the public, that it does some public good, will he be let off. So never mind the national motto written in courtrooms – no “satyamev jayate” for you. Truth may not prevail. It’s mounam sarvartha sadhanam. Silence gets you places.
Third, defamation is usually not a security issue or danger to society or an offence against the State. If someone feels he has been defamed he could fight the person responsible in court, in a civil case. But making it a criminal offence, where the case is not between two citizens but between the State and the accused, seems like bringing in the cannon when a pistol would do. One would expect the State to have better things to do than use public funds to protect the reputations of certain citizens.
Especially because criminal defamation the world over is used by the powerful to stifle dissent and criticism. It encourages self-censorship of the press and shuts out inconvenient truths. And from that point of view, this judgment fits in rather well with the general climate of silencing. Take the charge of sedition. According to reports, in the first quarter of the year there were 11 new sedition cases, involving 19 people, ranging from JNU students like Kanhaiya Kumar right up to national politicians like Rahul Gandhi. There have been 15 attacks on journalists. And several threats to journalists around the country, as well as scores of defamation cases.
Literature is suspect too. The ministry of human resources development has introduced a form for Urdu writers of books that the government may buy, in which they must declare the content will not be against the government or the country. The government’s preferential interest in Urdu writers — in their innocent belief that Urdu is the language of Muslims — is clearly part of the cute retro sentiment of Hindi, Hindu, Hindustan. Maps are suspect as well. The Geospatial Information Regulation Bill 2016 has been drafted with a view to censoring maps. “Whoever depicts, disseminates, publishes or distributes any wrong or false topographic information of India” can be charged.
This would target printers, publishers, the media and filmmakers, of course, but would also include netizens posting on social media, and anyone else scribbling a map anywhere. Apparently there will be an official sarkari organisation that will monitor maps, and whose prior permission you would need to publish maps of India. If there are mistakes — be warned — you could be looking at seven years in prison and up to Rs 100 crores in fines.
The attempt to silence is perhaps best seen in the hydra-headed attacks on dissent that led to the amazingly resilient student protests on university campuses — from the University of Hyderabad and Jawaharlal Nehru University in New Delhi to Jadavpur University in Kolkata and Allahabad University. The upholders of the law in black coats have physically attacked Mr Kumar and reporters covering his bail plea in court to show that dissent is not allowed, even in court. How do I silence thee? Let me count the ways.
But there is always hope. Last year, in the Shreya Singhal vs Union of India case, the Supreme Court struck down Section 66A of the IT Act. This section had criminalised offensive speech and had led to a host of young and not so young people being arrested for sharing innocuous stuff like cartoons, satire, political comments or arch remarks on the Internet. Generally the Supreme Court doesn’t disappoint. So when it does, it leaves us stunned.