Right to speech ‘eroded, mauled’, is affecting those who speak up: Former SC judge Madan Lokur

Former Supreme Court Justice Madan Lokur on Monday said that the right to freedom of speech and expression in India was being “eroded and mauled” through the misuse of laws, leading to the gradual destruction of a citizen’s right to dissent and protest, The Wire reported. He called this a “lethal cocktail,” which is adversely impacting the liberty “of those who dare to speak up”.

Lokur was delivering the 2020 BG Verghese Memorial Lecture on Preserving and Protecting our Fundamental Rights Freedom of Speech, Expression and the Right to Protest, organised by the Media Foundation. He retired from the top court in December 2018 after a tenure that lasted over six years.

The former judge said that one of the worst forms of curtailment of the freedom of speech is charging a person with sedition. “It is extremely important for distinguishing between free speech and sedition, but unfortunately the distinction is being lost sight of by the establishment,” he said.

Lokur pointed out that the Supreme Court had laid down the sedition law clearly and cogently in 1962 itself, yet authorities have found various ways of misusing it.

“A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder,” said Lokur, quoting a 1962 Supreme Court order.

“The provisions of the sections [that is, Sections 124A and 505 of the Indian Penal Code] read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence.”

— Former Supreme Court Justice Madan Lokur

The former judge said that the Supreme Court drew a correlation between sedition and violence, sedition and inciting violence, and sedition and tendency to incite violence – “not just simple violence but violence of such a degree as to bring it within the purview of public disorder”.

“So, when you have rival gangs confronting each other and one of them shouts maro (‘kill’), a law and order situation of rioting and attempt to murder arises, not of sedition,” Lokur said, referring to the chants that became common at the pro-Citizenship Amendment Act demonstrations.

Lokur also referred to advocate Prashant Bhushan’s case. The senior advocate was recently charged with contempt of court over his tweets. “In other words, tweet at your own risk, a lesson that the Supreme Court sought to teach Prashant Bhushan quite recently,” he said.

He added that the misuse of the sedition is now no longer centralised as almost every state seems to have “weaponised sedition” as a means of silencing critics and the numbers were increasing. “Any statement is good enough for a sedition case, and this is not in just a few states; it is in almost every state and Union Territory,” Lokur said.

New methods of silencing speech

In recent years, Lokur said that new methods of “silencing speech” have been introduced – to attribute something to a speaker that he or she never said.

He referred to the preventive detention of Dr Kafeel Khan, and said almost every procedure known to the law was violated by the detaining authorities. “This is a classic instance of cooking up a case against a person with the intention of putting him behind bars for several months,” the former judge said.

Khan was arrested on January 29 for making allegedly inflammatory remarks during a protest against the Citizenship Amendment Act at the Aligarh Muslim University in December. He was detained under the National Security Act, which the Allahabad High Court quashed on September 1. Khan was released from Mathura Jail later that night.

The former Supreme Court judge also talked about the arrest of Pinjra Tod member Devangana Kalita in a case related to the February violence in Delhi. Kalita has been charged under the draconian UAPA law and is accused among things, of attempt to murder and making an inflammatory speech and inciting violence.

He said that the law is always to be interpreted objectively, but of late, “subjective satisfaction has taken over and the consequences are unpalatable”.

“These cases, and there are others, lead to a frightening inference that if a citizen exercises the freedom of speech and says something that is not even distasteful, he or she can still be arrested on the basis of a fairy tale and will have to go through a long-drawn process for being set free. If that person does not say anything at all but is otherwise a thorn in the flesh of the establishment, even then that person can still be arrested and detained on some cooked up or trumped up charges.” 

— Retired Justice Madan Lokur