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India’s founders kept repressive laws in the book. Today’s politicians show how wrong it was

Most parties today are using the law to stifle dissent. Worse, nobody is doing anything significant to oppose it—not the media, and certainly not the judiciary.

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It is a funny thing, but last month, even as Prime Minister Narendra Modi was telling us how terrible the Emergency with its restrictions on freedom of speech was, his own policemen and colleagues in the political class were busy resurrecting its spirit.

Many terrible things happened during Indira Gandhi’s Emergency (June 1975 to March 1977) — the regime locked up the Opposition, abused the Constitution, sterilised young men and tortured people to death — but it was the curtailment of their right to free speech that affected ordinary citizens the most.

We all know about the press censorship, but what younger people don’t remember well (or are not aware of at all) is the climate of fear that enveloped the citizenry. It got to a stage where ordinary people were scared to say anything critical of the regime. If people had something bad to say about Sanjay Gandhi, the sinister clown prince of the Emergency, they first looked around to see if anyone else was listening. To joke about the regime in a public place where you could be overheard was to risk persecution.

That time is upon us again

It is not my case that the Emergency is back. But it is hard to deny that we now live in a society where free speech is under attack and politicians will misuse the law to punish anyone who dares say anything against them.

More to the point, it isn’t just the Bharatiya Janata Party (BJP) government at the Centre that is suppressing the right to free speech. Nearly every party in every state is doing it by using the law and the police to stifle dissent or criticism. Worse still, nobody is doing anything significant to oppose this: Not the media, and certainly not the judiciary.

Some countries — like the US — guarantee the right to free speech. Others, including many European nations, enshrine the principle of free speech but carve out exceptions for hate speech, racism and the like. In India, we inherited a colonial system of law where free speech was not prized. The early leaders of independent India were traumatised by Partition, worried about potential secessionist movements and not sure that India would hold together. So, they retained many repressive laws on the books. The Emergency was entirely legal too — there was a provision for its curtailment of fundamental rights in the Constitution.

India’s founders believed that politicians after them would be people of integrity who would not misuse these laws. They were wrong. The Emergency proved that. And today’s politicians prove it, again and again, each day.

Also read: How India’s first blasphemy murderer was made Pakistan’s model citizen

What’s happening on the ground

Let’s forget for a moment the big case of the day: Twitter is fighting the government in the Karnataka High Court over what it says are attempts to curtail free expression on the platform. I have very little respect for the dodgy role that Twitter itself has played in courting the government (though not as dodgy as the role of Facebook and WhatsApp) over the last few years. So, let’s not go into that.

Let’s also forget the global criticism of India’s lack of respect for free speech because these are our internal affairs and we should not be too concerned about what foreigners say.

But let’s look at very real examples on the ground.

What about the persecution of Mohammed Zubair, the co-founder of fact-checking site Alt News? The case against him is a joke. It is based on an old tweet in which he quoted from a decades-old Hrishikesh Mukherjee film. Because the authorities know that, eventually, the case will collapse on its own, they have added new, unrelated charges and involved the Uttar Pradesh Police. When this case fails, another will take over. The Enforcement Directorate will get involved. And so on.

Consider also the recent attempt by the Chhattisgarh Police to arrest Zee News anchor Rohit Ranjan for airing a doctored video of Rahul Gandhi. It is nobody’s position that the video should have been telecast. But Zee News has apologised, and there are sections of the civil law that can be used against Ranjan. So why should a police party travel from Congress-ruled Chhattisgarh to Uttar Pradesh to arrest the anchor? Worse still, Ranjan only escaped arrest by the Chhattisgarh officers because the UP Police came to his aid and took him away, alleging a minor offence that allowed them to release him the next day.

What kind of a society do we live in when journalists face arrests over their reporting and where they have to rely on friendly state governments and their police forces for their protection?

Or consider the case of Marathi actress Ketaki Chitale. She was arrested by the Maharashtra Police for a Facebook post that the state government said was critical of Sharad Pawar, the godfather of the last Maharashtra government. There is no real case against Chitale, but she spent over a month in jail after 22 FIRs were filed against her. It took that long for her to get bail.

I could go on. There are many such instances. It isn’t just the pressure on the media, which is generally content to toe the government’s line just as it did in 1975 and 1976. The dangerous and worrying part of this assault on free speech is the modern-day equivalent of the Emergency era’s chats in public spaces — posts on Facebook or Twitter.

Also read: ‘Disproportionate use of power’ — Why Twitter has moved court & challenged govt’s censorship orders

Judiciary too?

I can think of no other country that regards itself as a liberal democracy and says it respects free speech but where the rights of individuals are trampled on with such reckless abandon.

Much of the mainstream media is frightened to protest too strongly about this. But what of the judiciary?

Indian judges have shown that they can act with speed and decisiveness in some cases: Arnab Goswami and Tajinder Bagga come to mind. But, for the most part, they are content to let the process become the punishment. A lower court will always listen to the police and refuse bail, no matter how ridiculous the charge. Even if the police say they don’t need further custody, judges will send people against whom there is no real case to many more days of judicial custody.

Yet, the higher judiciary does nothing. We have been begging the Supreme Court to ensure that judges follow the old dictum that bail is the rule and jail is the exception.

Could it be that judges are unwilling to make waves? That they are intimidated by the kind of organised attacks that two judges recently faced over their remarks in the Nupur Sharma case?

I don’t know. But the truth is that when the police run amok on the orders of politicians, you are sliding towards a police State. It is the duty of the judiciary to halt this slide.

Unless somebody stands up for the right to free speech, we might as well prepare to kiss it goodbye.

The author is a print and television journalist, and talk show host. He tweets at @virsanghvi. Views are personal.

(Edited by Humra Laeeq)

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