Defending freedom of speech

What is the issue?

70 years after Independence, the freedom of speech still occupies a fragile and weak place especially when it is used against the authority of the State.

What are the legal provisions in this regard?

• The legal authority of the government to ban books flows from Section 95 of the Code of Criminal Procedure (CrPC) which is largely based upon colonial provisions.
• It authorises State governments to forfeit copies of any newspaper, book, or document that “appears” to violate certain provisions of the Indian Penal Code.
• These include sedition, communal or class disharmony, obscenity, insulting religious beliefs, etc.
• Under Section 96 of the CrPC, any person aggrieved by the government’s order has the right to challenge it before the high court of that State.

What are the drawbacks?

• In the Indian legal system, achieving censorship through law is almost costless for anyone inclined to try.
• The only thing that could effectively counteract this is a strong, judicial commitment to free speech which often fails to manifest.
• Evidently, Section 95 allows governments to ban publications without having to prove, before a court of law, that any law has been broken.
• Also the term “appear” gives a wider scope for government's arbitrary decision given all possibilities of political influences. Effectively, a book is banned without a hearing.
• This functions detrimental to the interests of free speech as the onus falls on the writer or publisher to approach the court and try and get the ban lifted.
• While the court deliberates and decides the matter, the default position remains that of the ban.
• Also the litigation process is both expensive and time-consuming which is a blow to the creativity of writers and publishers.

What is the way forward?

• Section 95  and 96 should either be banned or amended.
• This is to ensure that governments approach the court and demonstrate with clear evidence the violation of law if it wants to ban publications.
• In line with basic principle of our Constitution, presumption always ought to be in favour of the freedom of speech and expression.
• Restriction or ban by courts  should balance between freedom of speech and a person’s/community's right to reputation.
• Judges tasked with implementing the law should internalise the importance of free speech in a democracy.

Source: The Hindu