1. Freedom of Speech: An Indian Overview
Karuna Nundy
Advocate, Supreme Court of India and International
Human Rights Lawyer

2. The Indian Penal Code, 1860
Sedition: “attempts to excite disaffection towards, the Government” (Section 124a)
Promoting “feelings of enmity” between groups (Section 153a)
Acts to “outrage religious feelings” by insulting religion (Section 295A)
124A. 1[ 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, 2[ the Government established by law in 3[ India], a 4[ shall be punished with 5[ imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation 1.- The expression" disaffection" includes disloyalty and all feelings of enmity. Explanation 2.- Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.- Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]
Section 153A in The Indian Penal Code, 18600
153A. 1[ Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.--(1) Whoever-(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts 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, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquility, 2[ or]
(c) 2[ organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community,] shall be punished with imprisonment which may extend to three years, or with fine, or with both.
(2) Offence committed in place of worship, etc.-- Whoever commits an offence specified in sub- section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.]
Section 295A in The Indian Penal Code, 1860
295A. 5[ Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.-- Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 6[ citizens of India], 7[ by words, either spoken or written, or by signs or by visible representations or otherwise] insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 8[ three years], or with fine, or with both.]

3. The Constitution of India
Article 19(1)(a)
All citizens shall have the right to freedom of speech and expression;
In 1947, at the stroke of the midnight hour – the great liberal Jawaharal Nehry, India’s first PM said India awoke to life and freedom…that the soul of a nation, long suppressed, finds utterance.
The rights of readers, a limited right of reply. Interpretation of restrictive laws in liberal ways that don’t filter down. Mob rule must be defended against but in a country with 14 judges per 100,000 population

4. Constitution of India: Article 19(2)
Allows “reasonable restrictions” on speech for:
sovereignty, integrity of India
security of the State, friendly relations with foreign States
public order, decency or morality
contempt of court, defamation or incitement to an offence
SC has held that first amendment jurisprudence is not squarely applicable because of Article 19(2), it’s still cited on specific points.

5. Bangalore Principles for Commonwealth Judges
Dualist
But
Bangalore Principles for Commonwealth Judges
124A. 1[ 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, 2[ the Government established by law in 3[ India], a 4[ shall be punished with 5[ imprisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. Explanation 1.- The expression" disaffection" includes disloyalty and all feelings of enmity. Explanation 2.- Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.- Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.]

6. The process is the punishment
Binayak Sen vs State of Chhatisgarh
(Appeal, Chhatisgarh High Court)
"The worst can be said that he was found in possession of general documents (relating to Naxal activities) but how can it be said that such possession would attract the charge of sedition. How can you lay the charge of sedition?" the bench asked.  While granting bail, the bench said, "We are concerned with the implementation of the judgment as even no case of sedition is made out."  A Raipur sessions court had on December 24 last year held Sen and three other people guilty of treason and for waging war against the state. He was also found guilty of sedition.  Sen was arrested in Chhattisgarh in 2007 and was granted bail two years later. He was honoured with Jonathan Mann Award in 2008 while still in prison. Convicted in 2010 of sedition, appeal is in the HC. Supreme Court observed that he only had documents on him. Maoist literature. 40 Nobel prize winners signed a petition expressing their “astonishment and dismay” at his conviction- his appeal is in the Chhattisgarh High Court.

7. Growing intolerance and the chilling effect
Dinanath Batra and Ors vs Wendy Doniger and Ors.
(Settled, District Court)
Facts are not official, case is shrouded in some secrecy because Penguin settled prematurely, there are gag orders.
Triumphant Hindu supremacists leaked documents that seem reliable- here’s what we know.
2 criminal, one civil- personal liberty, commercial considerations. s

8. Concentration of corporate media power
Sakal Newspapers vs Union of India
(5 Judge Constitution Bench, Supreme Court)
A governmental order under s 3 of the Newspapers Act was challenged- the order sought to regulate the number of pages in the weekend supplement and fix prices based on the number of pages.
Laissez faire approach fails to take into account the inequalities in the power to address ideas and unequal bargaining power.
The marketplace of ideas assumes equality of access and equal bargaining power
Freedom of speech is of paramount importance for democracy
Fallacious assumption that protecting the right of free expression is the same as providing for it.
“The best test of truth is the power of thought to get itself accepted in the market” Oliver Wendell Holmes . Libertarian view, conflates the power of ides with the corporate power to delivery those ideas. Also confuses truth with popularity.
Sakal Newspapers
5 judge Bench
The Newspaper (Price and Page) Act, 1956, empowered the Central Government to regulate the prices of newspapers in relation to their pages and sizes and to regulate the allocation of space for advertising matter. Under this Act the Central Government made the Daily Newspapers (Price and Page) Order, 1960, thereby fixing the maximum number of pages that might be Published by a newspaper according to the price charged and prescribing the number of supplements that-could be issued. The petitioner challenged the Act and the order as contravening Art. 19 (1) (a) of the Constitution.
Held, that the Act and the Order were void as they violated Art. 19(1) (a) of the Constitution and A were not saved by Art. 19(2). The freedom of speech and expression guaranteed by Art. 19(1) (a) included the freedom of the press. For propagating his ideas a citizen had the right to publish them, to disseminate them and to circulate them, either by word of mouth or by writing. The right extended not merely to the matter which he was entitled to circulate but also to the
volume of circulation. The impugned Act and Order placed restraints on the latter aspect of the right. But its very object the Act was directed against circulation and thus interfered with the freedom of speech and expression. Article 19(2) did not permit the State to abridge this right in the interests of the general public. Held, further, that the State could not make a law which directly restricted one guaranteed freedom for securing the better enjoyment of another freedom. Freedom of speech could not be restricted for the purpose of regulating the commercial aspect of the activities of newspapers.
it is contended on behalf of the respondent that newspapers of long standing which have built up a large and stable advertisement revenue being in a more advantageous Position than newcomers in the field of journalism are in a position to squeeze out such newcomers with the result that they are able to destroy the freedom of expression of others. A free press, it is said, cannot mean a press composed of a few powerful combines and that in order to ensure freedom of press it is necessary to secure full scope for the full development of smaller news- papers.
It is further pointed out on behalf of the respondent that the diminution of advertisement revenue which would result from the operation of the Price Page Schedule cannot be regarded as an infringement of the right under Art. 19(1)(a) According to the respondent the economies of newspapers and the maximum number of pages that a paper can give with a reasonable margin for advertisement space was worked out by the Press Commission which also suggested a tentative Price Page Schedule. In formulating the schedule the Press Commission took into account various factors such as cost of (1) newsprint, (2) composing and printing, (3) distribution (4) commission payable, (5) editorial and managerial expenses and (6) general overhead charges. The present Price Page Schedule is said to be based upon the one formulated by the Press Commission.
Dworkin, negative liberty vs Fiss Positive liberty (instrumentalist) Robert Post-
social imbalance of power and influence, instrumentalist nature of speech in
furthering public debate and therefore, democracy.
Laissez faire approach leaves wide room for equality, for the voices of the rich and powerful to ring loud, especially in a country where there are more than 60% illiterate people.

9. Bankrupting the speaker
Sahara Ltd and Ors vs Tamal Bandopadhyay and Ors
(Ongoing case, Calcutta High Court)
In December, Sahara India initiated a libel lawsuit against Mint Journalist Tamal Bandyopadhyay for his yet to be released book, Sahara: The Untold Story. On December 10, the Calcutta High Court judge stayed the release of the book. Initial indications do not look good for Bandyopadhyay and his publishing house, which has also been made a party to the suit. After reproducing one impugned paragraph, the Judge observed, “Prima facie, the impugned materials do show the plaintiffs in poor light.”
It is interesting that the impugned paragraph in question specifically states that the allegations it makes are unverified: “More such incredible tales abound about Sahara, none that could be substantiated”, is the precise wording of the sentence. How the case for libel can be made out even after that express disclaimer is unclear. But what is truly staggering is the amount Sahara is claiming in damages: Rs. 200 crore! It is an amount that no journalist can afford to pay, and one that would drive most publishing houses out of business. (Although the facts are different, the amount is reminiscent of the Rs 100 crore a Pune Court ordered Times Now to pay in damages, for a fifteen-second clip wrongly showing Justice P.B. Sawant’s photograph in a story about a scam, back in 2011).
It would be bad enough if this was a one-off case. It is particularly alarming, however, because it fits into a larger pattern: the blatant abuse of libel and defamation laws by corporations and individuals in positions of power, to silence critical voices. Hamish McDonald’s The Polyester Prince, chronicling the rise of Dhirubhai Ambani, was not published by HarperCollins in India, after legal pressure. Just last month, Bloomsbury agreed to withdraw Jitender Bhargava’s The Descent of Air India, a book highly critical of then-aviation minister Praful Patel’s role in the downfall of the airline, and apologized to Patel—again, under threat of a defamation suit. And now this.
New York Times v Sullivan Consequently, the Court held that to succeed in a libel claim, it must be demonstrated not simply that the newspaper made a false statement, but that it did so either “with knowledge that it was false or with reckless disregard of whether it was false or not.”  

10. Online speech, replacing hammers with scalpels
Peoples’ Union of Civil Liberties vs Union of India and Ors
(Ongoing case, Supreme Court)

11. The Intermediaries Guidelines, 2011: force private censorship by ISPs.
 Section 66A of the IT Act: criminalises online "annoyance" and "inconvenience"
The Website Blocking Rules, 2009: secret censorship, without reasons, without appeal
The Intermediaries Guidelines, 2011: force private censorship by ISPs.
 Section 66A of the IT Act gives police the power to arrest individuals for undefined vague offences such as "annoyance" and "inconvenience" with a potential three years in prison. This must be struck down.  
* The Website Blocking Rules, 2009 allow government to secretly censor speech on the internet, without providing reasons for censorship and without informing the person who has written or uploaded the content. 
In the case of paper books banned offline,  government must publicly notify the banning, readers and the author may challenge that decision. If a book is banned online, it is compulsorily secret by government and without a right to appeal.   
* The Intermediaries Guidelines, 2011 force private censorship by internet companies, making them liable for failing to trawl the content of their users and take down content that is against the rules. They are required to take down content which may cause  “annoyance” and constitute “blasphemy” which are not defined.

12. Secret censorship, secret surveillance
India’s PRISM: Network Traffic Analysis or
NETRA
Constitutional challenge?

13. Thank you
Reporters without Borders 140 out of 180, given circumstances fairly rambunctious