India’s crackdown on ‘anti-national’ activism

The Ford Foundation has incurred the Indian government’s wrath for funding “anti-national activities”. Last week, the home ministry put the organisation under a financial surveillance regime in order to ensure that only “bona fide welfare activities” are carried out.

If the government is to be believed, Ford Foundation is bankrolling the disturbance of communal harmony and thereby endangering India’s national security, all because it funds Teesta Setalvad. And Setalvad, claims the government, has been indulging in treason and fraud.

Setalvad’s NGO, Citizens for Justice and Peace, has been relentlessly knocking on the doors of the courts to bring to book all the high-ranking government functionaries for their culpability in the 2002 communal carnage in Gujarat.

It took the Supreme Court’s intervention to prevent her arrest. That many of India’s educational institutions also benefit from the foundation’s munificence, or that a concerned US is repeatedly seeking clarification, remains purposefully ignored.

Right to dissent

On March 12, the Delhi High Court upheld non-profit advocacy organisation Greenpeace’s right to dissent and took the government to task for accusing Priya Pillai, one of its activists, of seditious libel and preventing her from testifying before an international tribunal.

Pillai had organised demonstrations and protests against a mega power project commissioned by the government in the central Indian state of Madhya Pradesh.

It was widely believed and hoped that the rap from a constitutional court would infuse some degree of tolerance in the government. But on April 16, by suspending Greenpeace’s registration and freezing all its bank accounts, the government showed that it won’t brook even the slightest interference or criticism of its policies.

Perhaps, one could have gotten an inkling from Prime Minister Narendra Modi’s speech to judges, which contained a thinly veiled threat – rule in favour of “five-star activists“, and face the music.

To be fair, the paranoia about a malicious “foreign hand” isn’t peculiar to this government – its predecessor had similar apprehensions regarding anti-nuclear protesters.

This is why the Supreme Court’s March 24 ruling assumes significance. In what has been hailed as one of the most momentous of decisions protecting and espousing the freedom of expression, the apex court struck down, in totality, Section 66A of the Information Technology (IT) Act.

The judgement’s reach isn’t confined to speech on the internet – a close reading shows how it is a bulwark against a vindictive state’s crackdown on dissenters.

A veritable police state

A ready-reckoner to the provision is available here. Simply put, the police got untrammelled powers to make arrests and harass people merely because whatever they said online could be termed as offensive, annoying, intimidating, or inconvenient. Such vaguely worded terms defy the canonical rules of constitutional and reasonable interpretation.

And the government and its agencies used this vagueness to their advantage. A list of arrests over the years, and the very profitable use of this provision by purveyors of communal violence bore testimony to its illegal provenance.

It wouldn’t be a stretch to contend that this verged on the border of state authoritarianism, something practised by Turkey, which forced social media giants (and millions of their users) to grovel before it.

No government wanted to let go of such a potent tool. True, it was brought in by the previous Congress government, but the present political dispensation – at one time one of its staunchest critics – spared no effort to vigorously defend the provision in court.

As recorded in the judgement, the government was even willing to hedge this provision by inserting a whole host of qualifiers, but reluctant to allow a single word to be changed.

It is unfortunate that state censorship isn’t treated as a political issue in India. A hue and cry follows every time there is an egregious use of censorious powers, but such scattered, politicised reactions don’t amount to much. The court recognised this, and refused to buy the government’s unctuous pleas of reassurance – that it would not use 66A at random.

“Governments may come and go, but 66A stays forever,” the judges said.

Advocacy is not instigation

The court held that merely because internet speech has a reach and speed far superior to that of other means of communication, it cannot be subjected to a regulation regime more restrictive than what the constitution permits.

Integrating the “clear and present danger” test (propounded by the US Supreme Court in Schenck v US) for determining the threshold for launching criminal prosecution for speech acts, the judges ruled that withering criticism and zealous advocacy, even if inflammatory, cannot be regarded as incitement to violence, disruption of public order, or acts of sedition. The state must prove a truly imminent threat, as opposed to reasonable apprehensions.

However, as reported, the censure from the Supreme Court doesn’t seem to be a sufficient deterrent, for the government is mulling a law, on the lines of 66A, this time with more teeth for countering “anti-national propaganda” and securing convictions.

Saurav Datta teaches media law and jurisprudence in Mumbai and Pune.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.