'Freedom Of Speech Mauled Through Twisting & Turning The Law': Justice Madan Lokur Deprecates State Action In Cases Of Hathras, Kafeel Khan, Prashant Bhushan, Etc.

The former Supreme Court Judge was speaking at the the BG Verghese Memorial Lecture 2020 at a webinar organised by The Media Foundation, and hosted by the India International Centre.

Speaking on the theme, "Preserving and Protecting our Fundamental Rights—Freedom of Speech, Expression and the Right to Protest," Justice Lokur emphasized that law needs to be interpreted 'objectively' but regretted that 'subjective satisfaction' has taken over the law and as a consequence dissent has become an issue to the extent that "bona fide speech sometimes becomes a security threat."

During his speech, Justice Lokur made crucial remarks with respect to Police action and misuse of law, in the Hathras case, Prashant Bhushan contempt case, Kafeel Khan case, etc.

"This evening I would like to address a gradual erosion of one of our most precious fundamental rights – the inalienable right to freedom of speech and expression, an erosion that is leading to the gradual destruction of our human right to dissent and protest. This lethal cocktail is adversely impacting the liberty of all those who dare to speak up," he remarked.

He discussed the fundamental right of free speech and expression and the right to disagree in different compartments, viz.:

(i) Free speech and sedition

Justice Lokur stressed that the Supreme Court had laid down the sedition law clearly and cogently as early as 1962 in the case of Kedar Nath Singh v. State of Bihar, yet the authorities have found various ways of "weaponizing" the sedition laws.

He referred to the case of Aseem Trivedi, a cartoonist who was arrested for sedition for depicting the national emblem and the Parliament building in a manner "unacceptable to the establishment".

Whereas Justice Lokur was of the opinion that the cartoon did not incite or have a tendency to incite violence, Trivedi was sent to jail for a while. Expressing his reservations thereof, Justice Lokur said:

"Some cynics glibly suggest that if the speaker is not guilty, he or she will be acquitted of the charges framed, but the fact of the matter is that detention as an under-trial is a gut-wrenching experience for anyone and particularly for a person whose cries of innocence fall on deaf ears. Such a person looks to the judiciary for protecting his or her freedom of speech and liberty but gets overwhelmed by the painfully slow justice delivery system."

He further referred to the criminal contempt action against Advocate Prashant Bhushan, and juxtaposing it with the arrest of two Mumbai girls in 2012 for a Facebook post construed to be 'anti-Thackrey', remarked,

"tweet at your own risk, a lesson that the Supreme Court sought to teach Prashant Bhushan quite recently."

(ii) Free speech and cooked up cases

Justice Lokur further catalogued "new methods of silencing speech" which include attributing to a speaker something he or she never said and then to institute punitive proceedings against the person on the basis of this "cooked up" speech.

Referring to the case of preventive detention of Dr. Kafeel Khan, Justice Lokur regretted that "almost every procedure known to law was violated" by the detaining authorities.

Khan was arrested for an allegedly provocative speech made by him during anti-CAA protests in AMU. He was put under preventive detention, without trial, for more than six months before being set free.

The High Court found that whereas Khan was accused of promoting hatred, his speech actually called for 'national integrity'.

Terming it to be a classic instance of cooking up a case against a person "with the intention of putting him behind bars for several months," Justice Lokur said,

Again, referring to the arrest of 'Pinjra Tod' member, Devangana Kalita on May 25, 2020 and the subsequent relief granted to her by the Delhi High Court, Justice Lokur was constrained to draw "a frightening inference" that any citizen can be arrested on the basis of a "fairly tale" and (s)he will have to go through a "long- drawn process" for being set free.

(iii) Free speech and fake news

Justice Lokur noted that the establishment prefers to act against the weak and defenceless with what was recently described as an iron hand rather than against the privileged who can get away by saying anything.

For instance, he compared the case of a person in Punjab was charged with sedition on an "assumption" of spreading fake news that ventilators were not available for covid19 patients in a particular district; to the case of an elected cabinet minister who made a "bizarre claim" regarding measures for immunity from the deadly corona virus.

(iv) Free speech and the Press

Justice Lokur noted that the use, perhaps for the first time, of Section 144 of the CrPC to keep the media out of the Hathras gang-rape area, was nothing but an "egregious violation of the freedom of the Press through a bizarre abuse of law."

Similarly, according to Justice Lokur, the frequent internet shutdowns through "blanket orders under the guise of preventing breach of peace" were highly disproportionate response.

Behind these new multiple innovations to stifle the media and free press, Justice Lokur suggested the possibility of an "unseen iron hand" at work, bent upon silencing dissent and criticism.

Noting that "fundamental right to free speech is extremely important for any civilized democracy" Justice Lokur cautioned that the authorities were obliged to ensure that the laws are not twisted, misused or abused in such a manner that citizens get deprived of their liberties.

He also deprecated registration of sedition cases against (i) leader of Jammu and Kashmir People's Movement, Shehla Rashid, for voicing her concerns over military mobilization in the valley; (ii) journalist Vinod Dua over a YouTube show; (iii) raising of slogans by Amulya Leona; and (iv) Shaheen school in Bidar in connection to a children's play.

He advised the establishment to understand that the people in a Democracy may have different points of view and "These must be respected – otherwise the fabric of our society might disintegrate…"

Besides the BG Verghese Memorial Lecture, the Media Foundation also presented the 2019 Chameli Devi Jain Award for an Outstanding Woman Journalist. This the year, the award was shared by Ms. Arfa Khanum Sherwani of The Wire and. Ms Rohini Mohan, a Bengaluru-based independent journalist. Ms. Rukmini S., an independent data-journalist from Chennai received an Honorable Mention.