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Summary
Polity Class 13

Introduction and a brief overview of Article 19 (05:00 PM)

SEDITION LAWS (05: 11 PM)

  • Background
  • Britishers used the Carrot and Stick policy to curb the national movement, thus they enacted constitutional reforms. 
  • Section 124 A of IPC was brought to curb the national movement. 
  • Sedition- Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards. 
  • It may attract imprisonment for up to life also. No judicial remedy was available. 
  • Post-independence, there was a debate on sedition laws. It was left to the future generation to decide on the sedition laws. 
  • Why SC felt the need for sedition laws?
  • NE insurgency and the secessionist tendency were still there. 
  • In the name of language, Race, and Ethnicity, there will always be some division in society.  
  • Government V/s State/ Country
  • One has the right to criticize the government. Dissent is an important feature of democracy. The opposition has the right to criticize the government. Dissent is the safety valve of democracy- Justice Chandrachud
  • But over time, the difference between the government and the country. Aggressive nationalism has become part of politics. Anyone criticizing the government is booked under sedition charges. 
  • Sedition is non-bailalble offense. No democracy has sedition laws in its law. 

ARGUMENTS AGAINST SEDITION LAWS (05:27 PM)

  • The essence of democracy is dissent, Citizens have the right to criticize their government. Mere criticism of the government can not be considered as an act of sedition. It can come in the way of the effective functioning of democracy and can easily convert the state into a dictator. 
  • The essence of our entire constitution is about protecting the rights and freedoms of people. There can be scope for misuse of sedition laws as governments try to penalize citizens for expressing their opinions. It can also adversely impact the freedom of the press. 
  • Most of the democratic countries in the world have already removed this draconian law from their rulebook. 
  • Recently, SC had come out with an interim judgment regarding the implementation of sedition laws. It has directed both central and state governments not to use section 124 A till SC comes out with a Final judgment. 

DEFAMATION (05:39 PM)

  • Criticism of the recent case (Defamation case of sitting MP)
  • a) The words were part of speech and not in written format. 
  • b) It was not harming the reputation of the community. 
  • c) The persons named in the speech did not approach the court. So the principle of locus standi was not followed. 
  • The discrepancy in recent judgments
  • Section 8(3 ) of the RPA mentions that, when a person is convicted of a crime for 2 years or more than 2 years, then he shall be disqualified. 
  • [* Shall be disqualified means- There should be some authority to disqualify him]
  • Article 103 mentions that the president will take the decision on the disqualification with the recommendation of ECI.
  • But the decision of disqualification was given by the Lok Sabha secretariat.
  • Also, when the member is disqualified, then the vacancy should be filled within six months. 
  • What would happen if the Higher court stays the conviction?. 

Defamation concept (06:20 PM)

  • Section 499 of the IPC criminalizes any expression, either through speech or any visible representation, intended to harm the reputation of any person. It is worded vaguely and ambiguously, it also criminalizes defaming a deceased person, intending it to be hurtful to the feelings of their family. 
  • The law completely fails to clarify what harm to a person's reputation means. 
  • Its explanation of harm is lowering the moral or intellectual character of a person in the estimation of others. 
  • This law was enacted in 1860 essentially to protect colonial interests. 
  • A similar law was passed for the UK at the same time but there are significant differences between the Indian and English laws.
  • In English laws, defamation is a crime only when it is in written form. Secondly, defamation cases can be filed only when it results in a breach of peace under English law. 
  • Indian law is more stringent. Cases can be filed through speech or any other form even though it does not result in any "breach of peace".
  • Defamation law was challenged in SC by Subramanian Swamy for it being excessive and an arbitrary restriction on free speech. It was also challenged for being loosely worded and thus hit by the principle of "void for vagueness". 
  • SC has upheld the constitutional validity of Defamation law. SC has argued that the Right to reputation is an inherent part of the right to life and personal liberty under Article 21 of the Indian constitution.
  • It has also been argued that freedom of speech does not mean the freedom to damage the reputation of other persons. But SC has failed to look into the consequences. It had failed to estimate the consequences of criminalizing defamation. It has been said that the law should not be misused for personal revenge. 
  • In most cases, the conviction of the accused is not the objective of filing cases. In India, the process of prosecution is itself the punishment, as rightly noted by SC. In recent times this law has been mostly misused in sexual harassment cases (#metoomovement) and also to counter criticism of political opponents. 

What should be done?/ way forward (06:44 PM)

  • It should be made only a civil offence. 
  • Defamation cases should be filed only when something is in written form. 
  • Only when it causes harm to public order, peace, safety, and security, can it become a criminal offence?  

HATE SPEECH (06:58 PM)

  • Hate speech is defined by the law commission as incitement to hatred primarily against a group of persons defined in terms of Race, Ethnicity, Gender, Sexual orientation, Religious belief, and the like. 
  • Hate speech is a word written or spoken, signs, or visible representations, with the intention to cause fear or alarm or incitement to violence. 
  • Recently, section 66A of the IT Act had become controversial because of its provisions. Under this Act, messages which are offensive and menacing in character can attract fines and up to 3 years of imprisonment but the terms offensive and menacing are not defined by the Act. 
  • It was misused by the government to restrict free speech and also to take revenge against their political opponents. 
  • SC has struck down section 66A of the IT Act as unconstitutional and also has declared that it is a draconian provision. The court also said that liberty of thought and expression is an important value under the constitution.
  • It also said that discussion or advocacy of a particular cause, no matter how unpopular it may be, is at the heart of the right of freedom of speech and expression. 
  • Solution (07:20 PM)
  • The law should clearly define exactly the meaning of terms in a clear-cut manner so that there can not be any scope for its misuse and abuse.
  • Hate speech v/s defamation
  • Comments which led to incitement to violence, and it is causing enmity between the two communities. 
  • Defamation- It is related to personal comments. 

OTHER PARTS OF THE ARTICLE 19 (1)(b)- RIGHT TO ASSEMBLE PEACEFULLY WITHOUT ARMS (07:25 PM)

  • Every person has the right to assemble peacefully and without arms. 
  • This freedom can be exercised only on public land. This provision does not apply when it becomes violent.
  • It does not include the Right to strike also. 
  • Under section 144, of CrPC, a magistrate can restrain an assembly if there is a danger to human life, health, and safety. 
  • Similarly, under section 141 of CrPC, an assembly of 5 or more persons is also prohibited if it is against law. 
  • Right to srike V/s Right to protest
  • Right to strike- Boycott the work, not participating in work. 
  • Right to protest- challenging the authority in recess time but going to work at the scheduled time. 
  • [* Case study of Japan- workers work for extra time and then they protest after working sufficiently]. 

RIGHT TO FORM ASSOCIATION/ COOPERATIVES/ UNION (07:33 PM)

  • All citizens have the right to form associations including political parties, companies, societies, clubs, trade unions, and so on. 
  • 97th Constitutional amendment Act has included the right to form cooperative societies as part of the right to form associations. 
  • Reasonable restrictions can be imposed by the state on the grounds of sovereignty and integrity of India, Public order, and Morality. 
  • SC ruled that trade unions do not have the Right to Strike and it can be controlled by appropriate industrial law. 

RIGHT TO MOVE FREELY THROUGHOUT THE TERRITORY OF INDIA (07:38 PM)

  • It is guaranteed to promote unity and integrity and also to create feelings of nationalism and patriotism. But reasonable restrictions can be imposed
  • Reasonable restrictions-
  • 1) The interest of the general public
  • 2) The interest of any scheduled tribe to protect their distinct culture, language, custom, and traditions
  • SC also ruled that it can also be restricted on the grounds of Public health, and in the interest of public morals, especially in the case of the movement of prostitutes. 
  • Article 19 guarantees the right to freedom of movement within the country. 

FREEDOM OF RESIDENCE (07:44 PM)

  • Every citizen has the right to reside and settle in any part of the territory of India. 
  • It has two components
  • a) One is the right to reside in any part of the country on a temporary basis. 
  • b) Permanently also. 
  • The state can impose reasonable restrictions- Interest of the general public and protection of the interest of the scheduled tribe

FREEDOM OF PROFESSION (07:48 PM)

  • All citizens are given the right to practice any profession or to carry on any occupation, trade, or business. 
  • The state can impose reasonable restrictions- 
  • It can prescribe professional or technical qualifications for practising any profession. 
  • The state can carry on itself by any trade, business, or industry to the exclusion of citizens or otherwise. 

ARTICLE 20 OF THE INDIAN CONSTITUTION (07:52 PM)

  • It guarantees protection in respect of conviction for offences. 
  • This Article contains three important provisions.
  • a) No ex-post facto law- 
  • It means no person shall be convicted of any offence except for violation of a law enforced at the time of the commission of the Act. 
  • Nor can a person be subjected to a penalty greater than i.e. prescribed by the law. 
  • Question:- Define defamation and critically analyze its impact on free speech and also come out with recommendations to prevent its misuse. (250 words/ 15 marks)

The topic for the next class:- Article 20 of the Indian constitution.