A tale of two First Amendments:
The US First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Indian First Amendment of article 19 (Free speech) by Nehru & Co: "(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence."
The US First Amendment bars Congress from passing any law restricting free speech. It contains a mere 45 words and has stood the test of time and protected free speech against all tyrants since it was made in 1791. Many US Congress members have tried to meddle with it or alter it but, fortunately, unsuccessfully. In contrast, the Indian First Amendment stands as proof of intolerance by Congress, Nehru & Co. The amendment was made by Nehru consequent to a very critical article by a Commie magazine that led to its ban which the SC had overturned. The restrictions laid down by it have led to even full censorship at various times, including the Emergency. This intolerance and trampling of free speech has taken a natural course to draconian laws like section 66A of the IT Act. The IT amendment that includes 66A was hurriedly passed in early 2009 without the slightest debate or opposition in our parliament. 66A is unacceptable in a democracy and there are quite a few PILs that have challenged it in the SC. Our courts, including SC, pass strictures on many issues from Ganga to Garbage but are slow on an issue like 66A which tramples upon free speech. Here’s a recent concerning Dr Harsh Vardhan of the BJP:
Dr HV’s case is a genuine one in which an imposter is peddling fake medicines under his name on a website. But why does the FIR have to be under 66A? Normal laws such as 420 or other similar laws are enough to act against the impersonator. This is the problem. Our politicians want “Sudden death” play instead of normal process of law for themselves. The reason for saying this is that I have no doubts whatsoever that 66A was brought in for no other reason than Congress Gandhis being ridiculed, caricatured and abused online. It is not to protect you or me but to protect the Gandhis, the political establishment and their Hammam.
One of the worst cases of the misuse of 66A was the Puducherry police acting on a complaint by “Little PC”, ie: Karti Chidambaram. Someone tweeted Little PC was corrupt or possessed excessive assets beyond means. All it took was one phone call from KC for the guy to be arrested in the middle of the night with no warrants, nothing:
After public outrage the man was released, probably on bail. That was in October 2012. Later that same year, two young women from Mumbai were assaulted and then arrested by the police for obnoxious comments about Bal Thackeray during the time of his funeral on Facebook. One of them was arrested for just “Liking” the post. All that the woman said was there should be no shutdown of Mumbai for BalT’s funeral. Now what exactly is so offensive about that? And even if it is offensive; so what? Are politicians and public figures such chickens that they cannot absorb some offensive comments? The woman just expressed her personal opinion and even if someone doesn’t like it or finds it offensive there is no cause for her arrest and harassment. Both women were sent to 14 days judicial custody but released quickly on bail. Such stupidity!
Following the frequent misuse of 66A there were petitions in the SC which ordered that no arrests should be made without prior approval by a senior police officer (of IG level?). That was in May 2013. Well, who gives a damn what the SC thinks or orders; certainly not the politicians or the police. This is what happened in October 2014:
The man in the above report spent 21 days in jail after being illegally arrested. As it is we have some of the most irresponsible and Goonda-type policemen in many states. And then our politicians arm them with draconian laws like 66A. Recently, a student was arrested after the HudHud cyclone for some comments in Guntur. He made a post stating he loved HudHud because it proved there was God and it happened and brought destruction to those who didn’t vote for YSR Congress. You arrest a student for this stupid comment? It may sound offensive or obnoxious but what exactly is wrong in making stupid comments? Our politicians make stupid comments every single hour. Sensible people would either laugh or ignore such silly comments but only the most stupid govts would have laws leading to the arrest of a person. This is how politicians misuse law and police waste their precious time on frivolous nonsense.
What is the real test of defamation? Primarily, a defamatory act must be committed wilfully and with malice. In a case of mistaken identity TimesNow flashed the image of a wrong judge in a PF scam. There was a defamation case and the damage awarded was 100 crores. Maybe TimesNow did it repeatedly, even without malice, so a certain amount of damages would be reasonable but 100 Cr is certainly excessive. It is also possible that many who were not aware of the case would believe that the concerned judge would be seen as a “Criminal” by the public because of the Timesnow report. And that is the damage caused. The test is, whether actual damage has been caused. I often quote the famous case of Hustler Magazine’s Larry Flynt Vs Jerry Falwell:
Larry Flynt had an everyday target of offending of some public figure or the other. The ad his magazine carried lampoons a religious leader of his “first time” through incest. Falwell did go to court and the defamation case went right up to the US Supreme Court. The final court ruling was that people reading the horrible, offensive ad were well aware that it was a parody and no one would believe it to be true and that Flynt exercised his free speech rights to lampoon a public figure. The essence is that defamation must be “believable” with “malice” and must cause actual damage to a person in terms of reputation or other losses. If you look at Indian society, it’s the politicians and some other public figures that spew the most hatred, obnoxious and defamatory statements. In the real world it is Arvind Kejriwal who defamed Nitin Gadkari as the case showed. Not just AK, the entire media defamed Gadkari (as they did with Modi earlier and still continue to do). If the same conditions of 66A were applied to public utterances of politicians (including online by AK) and some media persons, most of them would have to cool their heels in jails almost every single week.
Much of the “reasonable restrictions” of free speech as legislated by our govts stems out of protecting religious beliefs and sentiments. The politicians have just made Gods of themselves. The MPs and MLAs enjoy complete free speech in parliament and are protected from prosecution for the most horrible statements and acts. Do they believe other Indians are idiots and do not deserve the same freedom? And if at all there are people who actually defame then there are laws to deal with it and, if need be, make the defamation laws stronger. No matter what law you pass you cannot stop people from lampooning public figures. They deserve the smallest latitude in terms of protection from being offended.
In August 2012 the GOI blocked about a dozen Twitter accounts. All the accounts were right-wing accounts that are opposed to the corrupt Congress. The Congress is the fountainhead of corruption that destroyed free speech with the first amendment, censored it further with Emergency, corrupted the media and has gone as far as silencing social media accounts. What should alarm us is that the list of Twitter accounts to be blocked were prepared by some media crooks. That’s how much free speech is valued by our media’s slaves too. And these same media crooks will whine about free speech when most of them have not raised their voice strongly against 66A.
One has to wonder how this law got passed without the slightest opposition. It’s hard to fathom but I have to estimate that the BJP “B” team of Congress which was then in charge at Delhi and in Parliament would have gladly sucked up to such an atrocious bill and its passage. Narendra Modi has been the most vilified and defamed politician for over a dozen years. If he had so chosen, hundreds of politicians and media criminals would have been facing defamation charges but Modi chose not to follow that path. 66A is a law meant for practice by the Taliban or the ISIS – Instant punishment. Now that Modi is in charge the GOI must seriously review this section and repeal 66A. We cannot brag about democracy and free speech with such stupid laws.