By Nabira Farman and Utkarsh Shubham
Does the Veil of Freedom of Speech & Expression Immune the Media from Penal Liabilities?
INTRODUCTION
When India was already blazing under the communal fire post the introduction of the controversial Citizenship Amendment Act, 2019, the novel CoronaVirus came to make people realize that this battle is not religious. It does not target a particular community but is belligerent to the whole of mankind. To India’s dismay, the religious war seems to be never-ending. Famous author Carlespie Mary Alice McKinney has penned that, “Religion does three things quite effectively: Divides people, Controls people, Deludes people”. In today’s scenario, this quote seems to be very accurate. Through the successive efforts of both, journalism and social media, in India, this pandemic has been designated with another name, “CoronaJihaad” which is a sign of jacked Islamophobia.
The authors by heart and soul condemn the conduct of the Tablighi Jamaat organizers who carelessly went forward with their religious expeditions despite being aware of the fatal nature of the pandemic. They had the liberty to organize such an event under Article 25 which gives them the freedom to propagate their religion. However, such liberty is subjected to reasonable restrictions of public order, morality and health. There is a reciprocal obligation of one member of civil society to use his rights in such a way that it does not infringe or injure the rights of another. The exercise of such right by the organizers of the Islamic congregation threatened to injure peoples’ “Right to Health”, which has been interpreted by the judiciary to form a part of the fundamental right to life, enshrined under Article 21 of the Constitution. The situation demanded social distancing as a safety measure towards the life of humanity. It is unambiguously a reasonable restriction on such a right to refrain from holding such events.
IS THE MEDIA RIGHT?
The primary purpose of media houses is to keep a check on the various policies of the ruling government. They also have the liberty to report the news and enlighten the people of the issues surrounding the country and beyond. But it is sad to see that this unbridled right is being misused for disseminating hateful propaganda against some religious minorities. For instance, tweets such as #CoronaJihaad and #TablighiJamaatVirus surfaced for nearly 300 thousand times over Twitter classifying all Muslims as “such vile minded people.” The media houses went on to link the members of the congregation with terrorism and referred them with derogatory titles such as “warriors of COVID-19”, “suicide bombers”, “corona bombs”, etc. The way they have portrayed the whole scenario is against the ethical fabric of the profession. They tried to persuade people to believe that a minuscule 207 million population is a nemesis of 1.37 billion people of the country. They have exaggerated the act with fake evidence tending to scapegoat the whole community and spread resentment against the Muslims among other religious groups.
The way of presentation was not only socially and morally but also constitutionally wrong. [as instanced in the image below] Socially, they distressed the communal harmony of India which was already shaken by cow vigilantism, mob lynching, CAA-NRC debate and the recent Delhi Riots. Furthermore, this has paved the way for social boycotting arising out of hostility for the whole class of Muslims. Morally, it was their duty to present genuine facts and figures without creating a bias against a single community. They were given the responsibility to contain the anxiety and fear which emerged due to this pandemic but instead they played it the other way around in a crooked manner. This shows that they are also off the beam.
The freedom of speech and expression is known as the mother of all liberties. The State cannot exercise control over the volume of circulation of news as it is a fundamental right guaranteed to every citizen under Article 19(1)(a) of the Constitution. This right includes the right to disseminate information and thus the media is also protected as a facet of this right conferred on every citizen of India. But fundamental freedoms come along with certain restrictions and the media is no exception to it. It does not have the immunity to spread falsehood and hatred in the garb of freedom of speech and expression. The Supreme Court in a recent writ petition filed for the redressal of the migrant labourers during the COVID-19 crisis has cautioned the media to be conscientious about the public order and refrain from reporting things that create panic. Since the media did not comply with the order, another petition was filed in the Apex Court by Jamiat Ulama -I- Hind to seek the protection of “Right to live with dignity” of the fellow Muslims in the country.
Back in 1924, in colonial Punjab, the distribution of the controversial pamphlet called “Rangila Rasul” or the “Colourful Prophet” fuelled the fires burning between the Hindus and Muslims. Similarly, by making the issue turn against the Muslims the media channels are not only exacerbating the tensions but also inciting hate crimes among the people. This will have a disastrous effect on the peace and tranquillity of India. It is not rebuttable that such a restriction on the freedom of speech and expression is unjust or arbitrary as the fundamental rights are subject to public morality and incitement of an offence. Scurrilous remarks made by the media personnel are against the law and order established by the State. Liberty must be so exercised as it does not cringe on the concept of social cohesion and communal harmony.
Wounded by the Television, salted by the Social Media.
Circulation of fake news and propagation of antagonism against a particular class of people is on the rise especially due to the presence of social media platforms like WhatsApp and Twitter. These have failed in their duty to keep a tight rein on the distribution of text messages and tweets that become a driving force behind acts of violence. Tweets such as #CoronaJihaad and #TablighiJamaatVirus surfaced for nearly 300 thousand times over Twitter classifying all Muslims as “such vile minded people.” The official policy of Twitter purports to combat such trolls and abuses but has acted ignorantly towards this issue. The Australian gunman who shot down 49 people in an attack on two mosques in New Zealand was given support on social media in the Chinese world. Thus, such unmonitored social media, aids in propagating extremist ideology which eventually culminates in brutal acts.
LAWS THAT DETER AND CONDEMN HATE SPEECH
Hate speech is emerging as one of the major menaces to the nation’s integrity and fraternity. To keep a lid on such outrageous behaviours, various penal laws have been inserted in the Indian Penal Code from time to time such as Section 153A, 153B, 295A, 298 and 505. Despite the presence of laws, a media anchor deliberately uttered “Talibani Jamaat” misquoting the Tablighi Jamaat and thereby hitting the nerve of a Muslim guest speaker who had arrived on the show for a debate on the issue.
The Apex Court requested the 21st Law Commission to give its viewpoint and recommendations to the Parliament in this regard. Since the expression “hate speech” is not defined in any of the statutes, the Court also asked for a concrete definition. Following this, the Commission in its 267th report defined that “Hate speech is any word written or spoken, signs, visible representations within the hearing or sight of a person to cause fear or alarm, or incitement to violence.” The purpose of such speeches is nothing but to kindle loathing against the people of a particular gender, race, religious belief, ethnicity and other grounds and encourage favouritism. The Commission also accepted that it is onerous to present an on the mark precision of the term as even a single ambivalence would lead to penetration in the pursuit of Article 19(1). Maintaining that one cannot count every offensive statement as hate speech, it prescribed that such a speech must manifest the maximal form of vehemence.
The Commission recommended bringing a few amendments in the Criminal Laws to curb this evil. It advocated the insertion of Section 153 C and Section 505 A in the IPC. The former section prohibits incitement to hatred. The commission purports to make it grievous enough to be categorized as Cognizable, Non-Bailable and triable only by Magistrate of First Class. While the latter one aims to inhibit the spread of rumours and fake news which causes fear, alarm, or provocation of violence in certain cases. The Commission prescribes to categorize it as Non-Cognizable, Bailable and triable by Magistrate of any Class. These provisions have not been added yet, though a bill has been proposed in the parliament in this regard.
CONCLUSION
The Supreme Court has time and again emphasized that any speech that tends to incite crimes like murder, dacoity, robbery etc., would be a threat to the integrity of the nation. Communalising a health-related catastrophe and creating fear among the people on those lines is not only counterproductive but also completely against the public order. It is germane to understand that this yellow journalism is corroding the harmony of India. Feelings of hostility are not going to recede easily even when the crisis gets over. The country might have to face various events of intolerance post the lockdown. As we have already analysed, laws are not enough to contain this viciousness. The political will of leaders is a sine qua non whereas the prudent pupils of the society need to be alert and be able to sagaciously differentiate between right and wrong.
[Nabira Farman is a second-year student at the Faculty of Law, Jamia Millia Islamia University, New Delhi, currently working as a Research Associate at JRTC Consultancy Pvt. Ltd. Utkarsh Shubham, is a second-year student at Faculty of Law, University of Allahabad, Prayagraj, and is a content writer at LawCorner.in.]
The Criminal Law Blog 