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.
