D) Administration of Justice in International Law 46 in CONTEXT: IMPUNITY for VIOLENCE AGAINST JOURNALISTS
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Cover photo: Protestors at India Gate 2012. Dave Gill This publication is the result of a joint research project by the International Human Rights Program (IHRP) at the University of Toronto, Faculty of Law; PEN Canada, the Canadian Centre of PEN International, PEN International and with special thanks to PEN Delhi members. AUTHORS: Amy Tang, Evan Rankin, Brendan de Caires, Drew Beesley EDITORS: Renu Mandhane, Tasleem Thawar, Ann Harrison, Sarah Clarke BACKGROUND RESEARCH: Carmen Cheung, Brenna Nitkin, Katie Bresner DESIGN: Brett Evans Biedscheid PEN Canada is a nonpartisan organization of writers that works with others to defend freedom of expression as a basic human right at home and abroad. PEN Canada promotes literature, fights censorship, helps free persecuted writers from prison, and assists writers living in exile in Canada. PEN International promotes literature and freedom of expression and is governed by the PEN Charter and the principles it embodies: unhampered transmission of thought within each nation and between all nations. Founded in 1921, PEN International connects an international community of writers from its Secretariat in London. It is a forum where writers meet freely to discuss their work; it is also a voice speaking out for writers silenced in their own countries. Through centres in over 100 countries, including PEN Canada, PEN operates on five continents. PEN International is a non-political organisation which holds Special Consultative Status at the UN and Associate Status at UNESCO. The IHRP enhances the legal protection of existing and emerging international human rights obligations through advocacy, knowledge-exchange, and capacity-building initiatives that provide experiential learning opportunities for students and legal expertise to civil society. PEN Canada 24 Ryerson Avenue, Suite 301 Toronto, Ontario Canada M5T 2P3 pencanada.ca International Human Rights Program (IHRP) University of Toronto Faculty of Law 39 Queen’s Park, Suite 106 Toronto, Ontario Canada M5S 2C3 Ihrp.law.utoronto.ca PEN International Brownlow House, 50-51 High Holborn London, WC1V 6ER United Kingdom www.pen-international.org Copyrights ©2015 PEN Canada, IHRP, PEN International All rights reserved. Printed in Toronto and London. CONTENTS 2 INTRODUCTION 3 IN FOCUS: CHARLIE HEBDO IN INDIA 4 EXECUTIVE SUMMARY AND KEY FINDINGS 8 RECOMMENDATIONS 10 VAGUE AND OVERBROAD LAWS 11 a) The Indian Constitution 11 Article 19 and breadth of exceptions 11 Inconsistent rulings from the Supreme Court 12 IN CONTEXT: EXCEPTIONS TO ARTICLE 19 13 b) The Web of Laws 13 Criminal Laws 13 “Forfeiture” of publications alleged to violate Penal Code 13 Criminal Defamation: IPC Section 499 14 IN FOCUS: DISSENT ON AIR INDIA 15 Blasphemy 15 IN FOCUS: THE CONTROL OF RELIGIOUS NARRATIVES 16 “Promoting enmity” 17 IN FOCUS: PK 17 Assertions prejudicial to national-integration 18 Public Mischief 18 IN CONTEXT: THE RISE OF HINDU NATIONALISM 19 Obscenity 19 IN FOCUS: M.F. HUSAIN 20 IN FOCUS: YO YO HONEY SINGH 20 Sedition 21 IN CONTEXT: THE LEGACY OF THE RAJ 22 IN FOCUS: CRACKDOWN ON “SEDITIOUS” NUCLEAR PROTESTERS 23 Regulatory Laws 23 Cyber-Offences 24 IN FOCUS: YOUTHS ARRESTED OVER FACEBOOK POST 25 VOICES: Apar Gupta: Repealing Section 66A 26 Movie Censorship 26 VOICES: SIDDHARTH VARDARAJAN: THE POLITICISATION OF THE FILM CENSOR BOARD 27 Cable Television Regulations 28 IN FOCUS: INDIA’S DAUGHTER 28 Contempt of Court 29 Prohibitions on the Import of goods 29 Foreign Contributions 30 IN FOCUS: BLOCKING FOREIGN FUNDING TO ENVIRONMENT WATCHDOG GREENPEACE INDIA 30 Unlawful Association 31 Prevention of “Atrocities” against Scheduled Castes and Tribes 31 IN CONTEXT: THE CASTE SYSTEM 32 ADMINISTRATION OF JUSTICE: THE PROCESS IS THE PUNISHMENT 32 a) Initiating Legal Proceedings 32 Criminal Charges 34 Civil Suits 34 Regulatory Reviews 34 b) Police Corruption 35 c) Court Proceedings 35 Unreasonable Delay 35 Competence of the Judiciary 36 Judicial Corruption 36 IN FOCUS: EXPOSING JUDICIAL CORRUPTION 36 Growing Antipathy towards Free Speech 37 Conflicting Precedents 37 Access to Justice 40 BREACHES OF INTERNATIONAL LAW 40 a) The Right to Freedom of Expression 40 Punitive Sanctions 41 Vague and Overbroad Laws 41 b) Reasonable Limits on Expression 42 National Security 42 Public Order 43 VOICES: SALIL TRIPATHI: FEAR OF THE MOB 44 Morality 45 Incitement to discrimination, hostility or violence 45 c) The Right to Freedom of Association 45 d) Administration of Justice in International Law 46 IN CONTEXT: IMPUNITY FOR VIOLENCE AGAINST JOURNALISTS 48 RECOMMENDATIONS 48 a) To the Indian Government 49 b) Indian Lawmakers 49 c) Police and Prosecutors 49 d) Judiciary 50 e) Civil Society and the media 50 f) To the international community including the World Bank, Asian Development Bank, the Commonwealth, Bilateral Government Donors, and future Preferential Trading Partners 51 APPENDIX A: SUMMARY OF LAWS 56 APPENDIX B: FULL TEXT OF CRIMINAL LAWS 60 APPENDIX C: FULL TEXT OF REGULATORY LAWS 63 ENDNOTES ADMINISTRATION OF JUSTICE: THE PROCESS IS THE PUNISHMENT a) Initiating Legal Proceedings Criminal Charges Civil Suits Regulatory Reviews b) Police Corruption c) Court Proceedings Unreasonable Delay Competence of the Judiciary Judicial Corruption LIST OF ACRONYMS IN FOCUS: EXPOSING JUDICIAL CORRUPTION Growing Antipathy towards Free Speech Conflicting Precedents BJP Bharatiya Janata Party Access to Justice CBFC Central Board of Film Certification CCP Code of Criminal Procedure BREACHES OF INTERNATIONAL LAW a) The Right to Freedom of Expression CMS Central Monitoring System Punitive Sanctions FIR First Information Report Vague and Overbroad Laws b) Reasonable Limits on Expression FCRA Foreign Contribution (Regulation) Act National Security HRC Human Rights Committee Public Order VOICES: SALIL TRIPATHI: FEAR OF THE MOB HRW Human Rights Watch Morality International Covenant on Civil and Political Rights Incitement to discrimination, hostility or violence ICCPR c) The Right to Freedom of Association ICESCR International Covenant on Economic, Social and Cultural Rights d) Administration of Justice in International Law IN CONTEXT: IMPUNITY FOR VIOLENCE AGAINST JOURNALISTS INSAF Indian Social Action Forum IPC Indian Penal Code RECOMMENDATIONS ITA Information Technology Act a) To the Indian Government NGO Non-Governmental Organisation b) Indian Lawmakers c) Police and Prosecutors UN United Nations d) Judiciary Universal Periodic Review e) Civil Society and the media UPR f) To the international community including the World Bank, Asian Development PIL Public Interest Litigation Bank, the Commonwealth, Bilateral Government Donors, and future Preferential Trading Partners PUCL People’s Union for Civil Liberties RSS Rashtriya Swayamsevak Sangh APPENDIX A: SUMMARY OF LAWS APPENDIX B: FULL TEXT OF CRIMINAL LAWS APPENDIX C: FULL TEXT OF REGULATORY LAWS ENDNOTES IMPOSING SILENCE THE USE OF INDIA’S LAWS TO SUPPRESS FREE SPEECH INTRODUCTION In India today it is surprisingly easy to silence people with With the help of the newly established PEN Delhi Centre whom you disagree. An overlapping network of vague, and the All-India PEN Centre, PEN Canada and the IHRP overbroad laws and a corrupt and inefficient justice system completed a research mission to Delhi and Mumbai in have given rise to an environment in which speech can February 2014, followed by an examination of the legal quickly be censored. Legislative overreach and problems framework used to censor and silence expression. with the police, courts and judiciary reinforce one another, This report, issued jointly with PEN International, covers creating cumbersome, complicated and time-consuming the period immediately prior to Narendra Modi’s election, legal processes that deter many citizens from exercising on 16 May 2014, and assesses the challenges to freedom their right to free expression. The resulting chill silences of expression that remain one year after he took office. many who might otherwise have spoken out, often those with marginal voices, or critics of incumbent politicians. Challenges to freedom of expression in India are as diverse and complex as the society that produces This is a shameful state of affairs for the world’s largest them. This report focuses on the legal and regulatory democracy. Yet, when it is held to account at the United environment that facilitates censorship by government Nations for freedom of expression concerns, India actors, aggrieved individuals, and religious or political downplays their seriousness and refuses to adopt reforms groups. We focus on the law because it is an area that would bring its Constitution and censorship laws in where the government can act directly to ensure that line with its international obligations. the Constitution, criminal laws and regulatory regimes cannot be used to limit freedom of expression arbitrarily. In 2013, PEN and the International Human Rights Taking action to repeal or amend the laws that are Program at the University of Toronto Faculty of Law used to censor expression would be an important first (IHRP) began to study the various threats to freedom of step for India to signal its commitment to human rights expression in India. As a rising global superpower, with obligations under the International Covenant on Civil and 1 a US$1.9 trillion Gross Domestic Product, India has Political Rights. the world’s seventh largest economy and, with a 7 per cent projected economic growth rate, it is currently the Furthermore, the Supreme Court of India’s recent only BRICS country with an upward growth trajectory.2 decision to strike down a vague and overbroad provision With more than 1.2 billion citizens it is also the second criminalising the transmission of offensive online content most populous nation on earth. Consequently, offers courts and legislators an ideal opportunity to further India’s political freedoms are some of the most important review laws that are used to silence dissent. in the world. When PEN and the IHRP began this project, despite its frequently cited commitments to democracy India was increasingly in the news for issues related to free expression. These issues ranged from writers being charged with sedition to young people being arrested for Facebook posts.