On October 23, Abhijit Iyer-Mitra, a Delhi-based analyst and journalist, was arrested by the Odisha police in relation to a year-old Twitter conversation. The arrest was made after Iyer-Mitra appeared before an Odisha Assembly House Committee to apologise for his lampooning of Odisha Assembly legislators as “idiots”. He was called before the committee for making supposedly derogatory remarks about the Konark Sun Temple in Odisha.

As matters stand, Iyer-Mitra has been sent to 14-day judicial custody. The charges against him include Sections 294 (punishment for obscene acts or words in public), 295 (A) (hurting religious sentiments), 153 (A) (promoting enmity between different groups), and 500 (defamation) of the Indian Penal Code and Section 67 of the Information Technology Act.

News of Iyer-Mitra’s arrest was met with severe criticism on Twitter. The arrest is being looked at as an attack on free speech and expression. Irrespective of their ideological disagreements with Iyer-Mitra, journalists, lawyers and activists, among others, have come forward in support of Iyer-Mitra’s right to free speech.

On October 24, a day after Iyer-Mitra’s arrest, journalist Aarti Tikoo Singh started a petition demanding his release. In less than a day, the petition got more than 1,600 signatories. Making a case for Iyer-Mitra’s release, the petition states: “If you are a conscientious member of civil society or a believer in the ideas of democracy, liberty and the right to freedom of speech and expression, please come forward to sign this petition demanding Abhijit Iyer’s release.”

This idea of laws being used to curb free speech and expression has found much resonance among Twitter users, including an appeal to Union law minister Ravi Shankar Prasad to review all criminal laws which impact free expression. In this context, here’s a look at some of the laws that restrict or criminalise free speech and expression.

1. Sedition – Section 124 A

Section 124 A of the India Penal Code (IPC) states: “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 the Government” can be punished with imprisonment, to which a fine may be added. The duration of the sentence, depending on the case, differs. However, in 1962, the top court limited the application of Section 124A “to acts involving intention or tendency to create disorder, or a disturbance of law and order, or incitement to violence”. Yet, the state machinery continues to charge people with sedition even in cases beyond the section’s ambit.

For example, in February 2016, Kanhaiya Kumar, a student union leader at Jawaharlal Nehru University, was arrested on charges of sedition. He was accused of making anti-national speeches during a public meeting organised to protest the 2013 hanging of Mohammad Afzal Guru, who was convicted for his role in the 2001 Parliament attack. Kumar was released on bail after the Delhi police admitted to the court that Kumar had “not been seen” raising any anti-national slogans in the video footage available. There are several other examples where the sedition provision has been used to silence political speech, as detailed in this Human Rights Watch report, Stifling Dissent: The Criminalization of Peaceful Expression in India.

2. Defamation – Section 499 and 500

Section 499 of the IPC defines defamation as “whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person”. Section 500 lists the punishment for defamation which includes “imprisonment for a term which may extend to two years, or with fine, or with both”.

Recently, Anil Ambani’s Reliance Infrastructure Limited & others filed a ₹7,000-crore defamation suit against Seema Mustafa, founder-editor of The Citizen. The suit follows the website’s coverage on the controversial Rafale defence deal. Defamation cases have also been filed against The Wire, NDTV and investigative journalist Josy Joseph, among others, following their critical reportage on different issues. Iyer-Mitra has also been booked under this section.

Hate speech

3. Section 153 A

This section punishes words, either spoken or written, or signs or visible representations or otherwise, that promote or attempt to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties. It is punishable by up to three years of imprisonment, or a fine, or both. The charges against Iyer-Mitra include Section 153 A. Others charged under this section include Gujarat MLA Jignesh Mevani and activist Umar Khalid, who were both accused of making provocative speeches at the Elgar Parishad, an event organised to commemorate the 200th anniversary of the battle of Bhima Koregaon.

4. Section 505(1)(c)

This section imposes criminal penalties on anyone who “makes, publishes or circulates any statement or report containing rumour or alarming news with intent to incite any class or community of persons to commit any offence against any other class or community”. The maximum punishment under this section is up to three years of imprisonment and a fine.

5. Section 505(2)

This section criminalises publication or circulation of any statement, rumour or report “containing rumour or alarming news with intent to create or promote … feelings of enmity, hatred or ill-will between different reli­gious, racial, language or regional groups or castes or communi­ties”. The punishment under this section includes “imprisonment which may extend to three years”, or a fine, or both.

Mevani and Khalid have also been charged under Section 505.

Hurting religious sentiments

6. Section 295A

The section punishes “deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs … by words, either spoken or written, or by signs or by visible representations or otherwise”. This includes imprisonment of up to three years, fine, or both. The charges against Iyer-Mitra include Section 295 (A). In 2016, stand-up comedian Kiku Sharda was booked under this section for his mimicry of now-jailed self-styled godman Gurmeet Ram Rahim Singh.

7. Section 298  

Under this section, an utterance of “words, etc., with deliberate intent to wound the religious feelings of any person” is punishable by imprisonment which may extend to one year, or a fine, or both.

Lawyers speak and the way forward

The laws that affect free speech and expression have been the subject of much discussion, including the debate around the wide reach of these laws. However, should these laws be done away with altogether? Does free speech need reasonable restrictions? Newslaundry spoke to Supreme Court advocate Kamini Jaiswal and Apar Gupta, lawyer and executive director of the Internet Freedom Foundation, to get their take on the matter.

“Of course, there need to be laws to check that hate speech doesn’t propagate over the Internet, minorities aren’t dehumanised and riots don’t take place,” says Gupta. He adds that “such restrictions need to be better tailored due to the pervasiveness and the greater number of speakers due to the Internet”.

Gupta says India’s existing laws aren’t geared towards checking the misuse of free speech, as demonstrated in Iyer-Mitra’s case. Rather than limiting the misuse of the right to free speech and expression, our laws, in their existing form, end up limiting free speech. “They are out of step with modern, democratic India, more so in times of social media,” Gupta says. “They [these laws] were framed by a British imperial power which was more interested in preventing people from talking about their rights, subjugation and preventing the freedom struggle.” And since these laws have not been tinkered with much, they continue having the same effect. “The legislature as an institution has not seriously engaged to reform criminal laws and offences which impact free expression. It is often acted as an institution to further restriction on free expression.”

Gupta says the danger of such laws is “it can limit a person’s ability to develop a vocabulary, engage in satire and also prevent others from engaging in counterspeech”. Simply put, such censorship laws can have a chilling effect on free speech and expression. He says what’s needed today is “legal reform to get rid of all of these colonial restrictions on free expression”—and the responsibility for this lies primarily with the Parliament as the primary law reformer. He adds that the problems with free speech-related laws exist because our legislators have not acted with the right amount of urgency to reform these laws since Independence.

Supreme Court advocate Kamini Jaiswal says defamation is the most abused provision and as an archaic law, it needs to be done away with. “While not everything can amount to defamation, there has to be some reasonable restriction on free speech,” she says. Like Gupta, Jaiswal also thinks these archaic laws need to be reviewed. “We are talking about an Indian Penal Code of 1861. We need to think of an overhaul. We need liberal interpretation of these statutes.”

However, Jaiswal adds that it isn’t always the laws that are a problem. “It is the implementation that is crazy,” she says. “Implementation is done by the people who are manning the authorities. What people can do is just protest.” She also talks about the need for reasonable restrictions on free speech but says what needs to be decided is what reasonable is. Going forward, Jaiswal says, laws relating to free speech need to be dealt with on a case-to-case basis. “There can’t be a straitjacket formula for laws. For reform, people need to use their voices, and write about it.”

Gupta says, “The ideal way forward would be holding consultations on archaic and colonial laws. We need to review all these laws especially in the context of how technology has evolved. What is needed is a comprehensive free speech reform.”

And these reforms should be done with urgency, Gupta adds. “We have to move away from an approach of offences and penalty. Social conversations need to be done in a way that enhances individual liberty. There is a need for laws to encourage civic education. A legislative movement is what is required.”