From the SelectedWorks of Subhajit Basu

April 2013

Indias Dilemma: Political Sensitivity and Freedom of Expression

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INDIAS DILEMMA: POLITICAL SENSITIVITY AND FREEDOM OF EXPRESSION

Abhilash Nair School of Law Northumbria University Subhajit Basu School of Law University of Leeds

FREEDOM OF EXPRESSION IN INDIA

Why this is relevant to us?
Danish Cartoons and anti-Semitic Der Sturmer-style cartoons

recycled from the Nazi era

Sensitivity and Free Speech and expression Is there a right not to be offended? Is it all about political correctness?

First

Amendment constitutional principles, maintains that expression should never be punished or censored for its content alone (USA)

FREEDOM OF EXPRESSION: FACEBOOK POSTING

Indian police have arrested a

professor in Calcutta for allegedly posting on the internet cartoons ridiculing West Bengal Chief Minister performance as a former railway minister "spreading derogatory messages against respectable people

It criticises the Chief Ministers

Prof Mahapatra was arrested for

FREEDOM OF EXPRESSION: FACEBOOK POSTING

Mumbai girls jailed after Facebook

post about Bal Thackeray which hurt religious sentiments

Shaheen had reportedly written on her

Facebook wall that People like Thackeray are born and die daily, and one should not observe a 'bandh (strike)' for that Renu for liking her post
a court sentenced them to 14-day judicial custody

they were granted bail soon after they furnished personal bonds

Image: Shaheen Dhadas Profile Photo on Facebook

FREEDOM OF EXPRESSION: FACEBOOK POSTING

Two Air India employees, Mayank Mohan Sharma and KVJ Rao,

were arrested by the cyber crime cell of the Mumbai police for a Facebook post

Allegedly posted lewd jokes about politicians, made derogatory

comments against the Prime Minister and insulted the national flag in their Facebook posts FIR was lodged against them which prompted a police raid at their homes past-midnight

FREEDOM OF EXPRESSION: TWITTER POST

Tweeted content

defamatory

Ravi Srinivasan was

arrested and subsequently released

PROBLEM WITH THIS?

INFORMATION TECHNOLOGY ACT, 2000 (AS AMENDED IN 2008)

66A. Any person who sends, by means of a computer resource or a communication device
(a) any information that is grossly offensive or has menacing character; or (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device, (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages, shall be punishable with imprisonment for a term which may extend to three years and with fine

FREEDOM OF EXPRESSION: QUESTIONS OF LAW

Section 66A of the Information Technology Act, 2000 contains

extremely wide, vague and ambiguous terms?

Section 66A places unreasonable restrictions on online free

speech as opposed to free speech in the physical world?

Section 66A of the amended Information Technology Act, 2000

infringe Article14 and Article 19 of the Constitution of India?

FREEDOM OF EXPRESSION: NOT ABSOLUTE The state can silence its citizens for any number of reasons, including public order, decency or morality and friendly relations with foreign states.
(First Amendment to the Constitution of India due to the Supreme Courts verdict in Crossroads vs. State of Madras (1950))

FREEDOM OF EXPRESSION: OFFENSIVENESS

extends to ideas that offend, shock, or disturb the

State or any sector of the population Handyside v UK (1970-80) EHRR737 cannot prevent open discussion and open expression, however hateful to its policies Rangarajan vs P. Jagjivan Ram (1989)

In 1989, the Supreme Court of India held that the State

FREEDOM OF EXPRESSION: OFFENSIVENESS

Delhi High Court in 'Vinay Rai v. Facebook India & Ors'

(2012) asked Facebook and Google India to

objectionable material from their web pages" or "like China, we will block all such websites

"develop a mechanism to keep a check and remove offensive and

Otto Preminger Institut v Austria (1994) 19 EHRR 34

offensive to Christians was confiscated by the authorities the interference was justified (Strasbourg)

FREEDOM OF EXPRESSION: FREEDOM TO CRITICISE

In a democracy freedom of expression is indispensable as all men are

entitled to participate in the process of formulation of common decisions

The Indian Express Newspapers (Bombay) Pvt. Ltd & Ors. Vs. Union Of India & Ors. AIR 1986 SC 872

"Everyone has the right to freedom of opinion and expression; the right

includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers
Life Insurance Corporation of India & Union of India & Anr. vs. Prof Manubhai D. Shah & Cinemart Foundation AIR 1993 SC 171

CONCLUSION

I disapprove of what you say, but I will defend to the death your right to say it.
Voltaire