In the run up to the review of India’s human rights record at the UN Universal Periodic Review (UPR) in May 2017, PEN International, PEN Canada, and the International Human Rights Program at the University of Toronto, Faculty of Law (IHRP) have submitted a joint report outlining our concerns about the situation of free expression in the country. These recommendations are based on extensive research undertaken for the reports, Imposing Silence and the updated report, Fearful Silence: the chill on India’s public space.
“The space for personal freedoms in India has been shrinking at an alarming pace. India always had constitutional restrictions on many freedoms, but in recent years, it is becoming increasingly harder for people to say what they want, see the films they’d like, read what interests them, eat what they enjoy, and love the person they wish. Unaccountable vigilantes are acting with impunity and the government either does nothing or responds too late or half-heartedly. The people of India deserve better from their government.”
– Salil Tripathi, Chair of the Writers in Prison Committee, PEN International
Concerns highlighted by the UPR report
In relation to India’s international legal commitments to freedom of expression, the stakeholder coalition remains deeply concerned by India’s reservation to Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR.) The Constitution of India guarantees freedom of speech and expression as a fundamental right, subject to “reasonable restrictions.” These restrictions exceed the scope of the permissible restrictions described in Article 19(3) of the ICCPR, to which India is a State Party. India has not reported on its compliance with the ICCPR since 1996.
The coalition has noted that clogged courtrooms and unreasonable delays due to a heavy backlog of cases mark the Indian criminal justice system. Moreover, Indian legislation is often vaguely-worded and overbroad, and is used to silence legitimate expression. Potential censors – be they politicians, corporations, private individuals or social groups – can choose from an array of – often antiquated – laws, such as criminal defamation, sedition, blasphemy, and obscenity, among others.
While the cost of initiating legal proceedings is often low, the protracted legal battles that arise as a result are often very costly to defend. As such, the threat of legal proceedings alone can often be enough to intimidate critical voices into silence; writers and journalists often lack the financial resources to fight wealthy plaintiffs. When combined with slow court processes, frivolous cases – enabled by vague and overbroad legislation – discourage individuals from exercising their right to free expression.
Pre-publication censorship may also be obtained through the use of criminal defamation, which is often used as a convenient way to obtain pre-publication injunctions in order to suppress unwanted content. Investigative journalists are at particular risk of prosecution under criminal defamation provisions. In a blow to free speech, in May 2016, the Supreme Court upheld the constitutionality of India’s criminal defamation legislation, arguing that a person’s right to freedom of speech must be balanced with the other’s right to reputation.
More recent legislation, such as the Information Technology Act (2000) (ITA), which permits, among other things, central government to take down a website or censor its content in the interests of the sovereignty of India, among other occasions, has been used to shut down mobile internet services in at least 14 times in 2016 alone. Although the coalition welcomed the Supreme Court’s decision to strike down one particularly problematic section of the ITA, concerns remain that the provision may be replaced with a hate speech provision.
The coalition found that a growing culture of intolerance – linked to an emerging nationalist discourse and a rise in vigilantism (both in the physical and digital spheres) – has taken root in the country. In 2015, PEN International recorded 21 cases of writers and journalists being persecuted for their use of the written word; whereas between January and June 2016, the total number of cases recorded by PEN in India rose to 26. A perception of impunity for attacks carried against writers and journalists compounds the observation of a deteriorating climate for freedom of expression. Given this closing space for freedom of expression, many writers, journalists and publishers are more cautious about what they write, fearing retaliation.
Investigative journalists in areas of conflict, such as Kashmir and Jammu or Chhattisgarh, are particularly vulnerable to attack and harassment as they often find themselves caught in the middle of both state and non-state actors. In both cases, journalists are assumed to be taking sides and are retaliated against accordingly. Moreover, writers writing in particular languages – and thereby associated with particular groups – are particularly vulnerable to retaliation as they are often accused of having misrepresented their own culture or to have insulted another group’s culture.
In the absence of credible efforts to clamp down on threats, writers and their publishers will continue to steer clear of sensitive topics, fearful of their safety. As freedom of expression suffers, so too does freedom of information. The impact extends beyond curtailing writers’ everyday freedom of speech. It affects their work, and the harm done to their work impacts society at large.
The coalition made the following recommendations to the Indian government:
• Accept all recommendations pertaining to freedom of expression noted in the second cycle of the UPR;
• Amend Article 19(2) of the Constitution to remove restrictions on freedom of expression not provided for under international law, withdraw reservations and declarations made to Article 19(3) of the ICCPR and bring all legislation into line with the ICCPR and international legal standards;
• Submit overdue reports in India’s implementation of the ICCPR to the UN Human Rights Committee without further delay;
• Extend an invitation to the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression;
• Repeal all laws that unnecessarily restrict freedom of expression;
• Amend vague and overbroad laws that threaten freedom of expression;
• Enact legislation to combat Strategic Lawsuits Against Public Participation (SLAPP);
• Institute a screening mechanism to review complaints against authors and artists before allowing complaints to proceed to prevent vexatious and groundless trials, as recommended by the People’s Union for Civil Liberties in the case of Perumal Murugan;
• Train more police to recognise and investigate attacks and abuse, including online threats, against writers and journalists;
• Ensure that any measures limiting freedom of expression on the internet are based on clearly defined criteria in accordance with international human rights standards and are clearly prescribed, necessary and proportionate;
• Provide more accountability and transparency in content blocking;
• Adopt a comprehensive privacy law providing effective protection of individual’s communications and other personal data and effective redress against abuses.
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For further information, please contact Sarah Clarke at PEN International, Koops Mill, 162-164 Abbey Street, London, SE1 2AN. Tel: +44 (0) 2074050338, Fax: +44(0) 2074050339. Email: email@example.com