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Outlawing the Constitutional Right of Peaceful Expression

— June 28, 2021

This power of citizens to speak the truth cannot be thwarted by invoking any provision which unambiguously violates the freedom of expression or creates a chilling effect amongst the people.

When the Government wants to show a poster, it uses power of ordinance and becomes the Orwellian state. But, when it came to the people of the same country who have legitimate right to show their anger against its policies and system failure, then the same Government makes it an offence using legal intricacies to suppress the dissent. 

Delhi police lodged as many as 25 FIRs under Section 188 of IPC, Section 3 of Delhi Prevention of Property Act, 2007, among others sections for pasting posters on electric poles and walls on streets reading “Modiji humare bacchon ki vaccine videsh kyun bhejdiya? (PM why did you send vaccines meant for our children to foreign countries?)” which was critical of Prime Minister Narendra Modi’s vaccine diplomacy policy of exporting vaccines to other nations when India was in dire need of vaccines itself. Perceiving its country’s exigency to get as many as possible vaccines, how was the Government fine with shipping the eminently yearned-for vaccines without ensuring the inoculation of its own people?

91 Year Old Receives 2 COVID Vaccines in One Day
Photo by Daniel Schludi on Unsplash

This is a legitimate question by the people of the country. We are governed by the Constitution, which bestows the right to free speech and expression to us in any form or by using any method leaving out the conditions given in the exception clause of Article 19. Article 19(2) permits law imposing reasonable restrictions on the rights conferred by article 19(1), only “in the interest of sovereignty and integrity of India, the security of State, friendly relations with foreign States, public order, decency, morality, contempt of court, defamation or incitement to an offence”. This reasonable restriction has not been reasonably disturbed by pasting the posters, but the Delhi Police has used section 3 of the Delhi Defacement of Property act, 2007, along with the offence for violating lockdown regulations to set precedent for the future expression of the people by instilling fear in the minds of laymen. 

In relation to the Delhi Defacement of Property Act, 2007, the definition given in the act defines “defacement” as including impairing or interfering with the appearance or beauty, damaging, disfiguring, spoiling or injuring in any other way whatsoever by writing, marking, printing, painting, lettering, decoration with ink, chalk, paint or any other material. The incident that happened in Delhi relating to the poster would not be covered under section 3 by relaying upon the precedent of T.S Marwa & Ors V. State, 2008(4) JCC 2561, the court opined, “Mere putting of the banner will not get covered by Section 3(1) of the West Bengal Prevention of Defacement of Property Act, 1976”.

In regards to this case, the poster is removable and does not interfere with the beauty of the electric pole (Government has more obsession with beautification of an electric pole rather than providing electricity) but only the beauty of the Government, saved by the big media houses, can be damaged, disfigured, spoilt or injured (as in Delhi Defacement of Property Act, 2007) by the truth of the posters, that is enquiring the Government (image) who said “Sab changa si (everything is fine)”.

The people do not have any other means to mourn in trouble and dejection other than their God or chosen representative. Since for them God himself has devised the pandemic, they are left with the Government to speak with their suitable means rather than social media or posters, but not everyone in this country has a smart-phone to raise their voice and to be heard, and in this case, the people who had pasted the poster are primarily daily wage labourers, and most of them do not have had access to the internet.

Now coming to Section 188 (disobedience to order duly promulgated by public servant) of the Indian Penal Code, which has also been slapped on, increasing the charges to raise the bail amount. Here, they are daily wage labourers, and they don’t possess the money to buy a meal for a time, let alone pay for bail in a troubling time, as in this pandemic. Undeniably, the nationwide lockdown has disproportionately affected the livelihoods of vast numbers of people, especially the daily wage workers. Section 188 had been used from the beginning of COVID-19 to curb dissent over the pandemic. In 2020, Dr Indranil Khan’s and Siddharth Varadarajan’s cases were among such instances in which this provision was used to restrain their defiance. In the Indranil Khan case, the Calcutta High Court held that freedom of speech and expression given in article 19 of the Indian Constitution has to be “to be scrupulously held by the of State even if an expression of opinion brings the Government into disrepute”, which was a blow to the Government’s face.

In the guise of calamity, the state wants to stifle the dissent, and it is not a new concept in India. At the time of the plague of 1897, the British colonial regime held Bal Gangadhar Tilak guilty of sedition under section 124A of the Indian Penal Code due to the fear that Tilak’s newspaper “Kesari’ would instigate people to overthrow efforts of the British Government against the Plague. As in this pandemic, the Government of Uttar Pradesh threatened to use National Security Act (NSA) against the people, allegedly spreading fake news and false alarms. This was rightly called out by Justice D Y Chandrachud in recent hearing of s suo moto case regarding essential item of Covid 19 that is, “I flag this issue at the outset. We want to make it very clear that if citizens communicate their grievance on social media and internet, then it cannot be said its wrong information.” 

This power of citizens to speak the truth cannot be thwarted by invoking any provision which unambiguously violates the freedom of expression or creates a chilling effect amongst the people.

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