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Censorship on Creativity vis-à-vis Chilling Effect in India

Authored by Mohd Shoaib Taj, a 3rd-year Law Student at the Rajiv Gandhi National University of Law, Punjab


Recently, a joint statement was issued on World Press Freedom Day 2023 by leading organisations such as Amnesty International, the Asian Forum of Human Rights and Development, Human Rights Watch, the International Press Institute, etc., related to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023. The joint statement raised the issue of restriction of freedom of speech and criticised the amendment, which, according to them, gave the government overbroad and arbitrary powers of censorship over online content. This will lead to self-censorship and cast a self-imposed restriction on people’s ability to express their views freely. The joint statement also highlighted the issue of raids on the offices of news organisations like NewsLaundary and The Quint by central financial agencies. It particularly highlighted the issue of raids on BBC offices after the BBC launched the documentary “India: The Modi Question.” The government earlier used the provisions of The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, to ban the first part of the BBC documentary.

India is a democratic country where freedom of speech and expression is considered a fundamental right, and certain rights of the citizens regarding freedom of speech are protected under Article 19 of the Constitution. However, the freedom of speech under Article 19 is not absolute and can be limited on the grounds of public order, sovereignty and integrity of India, friendly relations with foreign states, decency and morality, defamation, etc. The government can make laws as per these provisions to restrict freedom of speech and expression if it violates these grounds. However, governments sometimes use indirect ways to restrict freedom of speech. These indirect restrictions can be achieved through overbroad and arbitrary laws.

The ban on the ‘BBC Documentary’ compels other people to think twice before producing any article, movie, or documentary criticising the government, ideas, policies or people in power. People will not put any effort into making such content due to the threat of their work being banned and restricted from the general public. This refrainment of a group of people or legal entities expressing their views and exercising their freedom of speech will have a chilling effect on them due to the threat of legal sanction. The chilling effect applies to rules and regulations made by the government which may not have a direct impact on free speech but result in self-censorship. So, the chilling effect is a subset of restriction on free speech through self-censorship. People will be chilled and will not express their views freely. Any rule made by the government related to the restriction on free speech will overshadow other people’s will to exercise their freedom of speech on further such issues. So, the doctrine of chilling effect is an indirect way through which the government curbs the freedom of speech of a person. The person chills himself and restricts himself from speaking on a particular issue due to the threat of legal sanction.

Judicial Framework of Chilling Effect in India

Historically, the origins of the chilling effect can be traced back to the 1950s in the United States. It was for the first time that the word ‘chill’ was mentioned in a legal framework in the case of Wieman v. Updegraff in 1952. A “loyalty oath” in question had been a requirement for governmental officers to be recruited in that case. Later, the term “chilling effect” first appeared in the case of Gibson v. Florida Legislative Investigation Committee. In India, Romesh Thappar v. State of Madras was the first case that emphasised free speech, and the court held that there should be a “reasonable” restriction in order to curtail the freedom of speech or expression of a person. However, the doctrine of chilling effect got no recognition in the Indian legal framework but it has been mentioned in many case laws after the Romesh Thappar Case. Supreme Court held that laws should be made in a way so that there should be no chilling effect on the freedom of speech in the cases of R. Rajagopal v. State of Tamil Nadu and S. Khushboo v. Kanniammal. In Navtej Singh Johar v. Union of India, a constitution bench of this court held that Section 377 had a chilling effect on the exercise of freedom of individuals, which posed a grave danger to the unhindered fulfilment of one’s sexual orientation as an element of dignity and privacy.” The Supreme Court of India struck down Section 66A of the IT Act and declared it unconstitutional. If a person shares any offensive information through the medium of a computer source, he or she would be punished with imprisonment and a fine. The Supreme Court held that Section 66A casts a chilling effect on an individual’s freedom of speech as the government can misuse this provision to remove certain content on the internet. Thus, the Supreme Court held it unconstitutional in the case of Shreya Singhal v. Union of India. In Anuradha Bhasin v. Union of India, Anuradha Bhasin, executive editor of Kashmir Times, approached the court that due to the lockdown imposed on Jammu and Kashmir after the abrogation of Article 370, she was unable to publish her newspaper. Thus, according to her, the lockdown had a chilling effect on her as it inhibited her right to publish her newspaper. However, the Supreme Court held that Bhasin’s argument was emotive in nature, as other newspapers published their editions at the same point in time. Thus, there was no chilling effect on her freedom of speech. The notion of a chilling effect is quoted in other judgements as well, although the ones above are the most prominent. Apart from the freedom of speech, the other judgements related to the chilling effect in India are delivered in the context of rent control legislation, libel laws, public scrutiny, the work of public functionaries, and two judgements related to noise pollution.

Legal Awareness & Way Forward

During our studies in law schools, we are taught about Article 19 of Constitutional Law regarding freedom of speech and the restrictions on free speech based on the grounds mentioned in Article 19. However, our legal education on this particular matter should be organized in such a way that there should be a distinction between these restrictions as direct and indirect restrictions on freedom of speech. The direct restrictions are based on grounds such as public order, decency and morality, etc which are already mentioned in Article 19. There is an existing awareness among the legal fraternity regarding the direct restrictions, as immense litigation took place under Article 19. On the other hand, many law students, lawyers and advocates among the legal fraternity are not acquainted with the fact that freedom of speech can be restricted through indirect ways as well. The doctrine of chilling effect explains these indirect restrictions on freedom of speech. There should be promotions, discussions, podcasts, seminars etc., in the field of legal education about legal doctrines, which have a huge impact on legal jurisprudence. For instance, the chilling effect relates to indirect restrictions on freedom of speech. This will increase awareness among law students regarding the indirect restrictions that the government puts on individuals through vague and arbitrary laws. This will eventually lead to awareness among the legal fraternity as well.

Despite some mentions of chilling effects in Supreme Court judgements, the concept still didn’t get any recognition. Well, according to many experts, it is due to the matter that the doctrine is not litigated extensively in India. But the main point of the question is: Why has such a doctrine that incorporates the indirect restriction on freedom of speech not been litigated? Sometimes, the most important thing, despite its prominence, remains ignored or discarded. This is the nature of all humans that we keep something untouched and then immediately focus on that particular thing. Laws are also being made and litigated by humans only (until and unless there is a takeover by AI). For instance, the morality mentioned under Article 19(2), Article 19(4), Article 25 (1) and Article 26 was referred in less than ten Supreme Court cases till 2010. However, in 2018 alone, the term ‘Morality’ was referred to in more than 10 cases. It also gained more popularity and was discussed by many after the Indian Young Lawyers Association vs The State of Kerala case. Hence, a concept or a particular thing sometimes remains undisturbed and then it just booms. This is the same case with the doctrine of chilling effect. It is true that this doctrine has not been litigated on a large scale, but with more cases related to freedom of speech in the future, this doctrine will be discussed more and will find its place in Indian laws. This can only be achieved if there are more reasonable and logical reforms in the legal field, which will particularly focus educating law students, lawyers and advocates about the indirect ways of restricting freedom of speech. They will be comprehensively knowledgeable and dig out more ways of litigation in the future on the matter of chilling effect.

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