On 19 September 2016, PEN International, a worldwide organisation of writers, in collaboration with PEN Canada, its Canada chapter, and the International Human Rights Program at the faculty of law in the University of Toronto, released a report titled, “Fearful Silence: Chill on India’s Public Sphere.” The report is an update to PEN’s 2015 report, “Imposing Silence: The Use of India’s Laws to Suppress Free Speech,” which looked at the ways in which freedom of speech was being curtailed in India. The update discusses the rapid pace at which the space for free speech is shrinking in socio-political domains in India, and looks at recent instances such as the censorship of films and a rising tide of online harassment. It says that, in most of the cases, restrictions on the freedom of speech are imposed because of “a small number of aggrieved citizens.” The update notes that the growing culture of intolerance in India is accompanied by an increasingly loud nationalist discourse, and that it has become more menacing since the Bharatiya Janata Party government came to power in 2014.
In this back drop, the update notes, the filmmaker Pankaj Butalia’s legal victory against the Central Board of Film Certifcation is a window of hope. The CBFC claimed that Textures of Loss, Butalia’s documentary on the unrest in Kashmir in 2010, was seditious. This charge was eventually struck down by the courts. However, Butalia’s case, the following excerpt from the update says, is also a reminder of how easy it is to press charges of sedition, and how the sedition law “can be used to entangle filmmakers and journalists in cumbersome legal processes.”
In 2016, India’s sedition provision in the IPC was repeatedly used to silence allegedly anti-nationalist sentiments, as in the Kanhaiya Kumar case. The provision’s vague wording has allowed the authorities to use it against a wide range of citizens who are lawfully exercising their constitutionally guaranteed freedom of expression, even outside the context of criminal law.
Consider the experience of documentary filmmaker Pankaj Butalia. The Central Board of Film Certification (CBFC) deemed parts of Textures of Loss, his documentary on Kashmir, to be seditious due to comments made by some of the victims of violence that Butalia interviewed. The CBFC ordered him to delete a comment about the “disproportionate” violence of paramilitaries in Kashmir, as well as a line spoken by a grieving father, who curses the Indian state and wished death upon the families of those responsible for killing his son.
Butalia appealed to the High Court of Delhi which ruled decisively in his favour in May 2015, finding that “Damnation of the State in the context of the tragedy which visited the concerned person...could not be construed as an act of sedition.” The Court also rejected the argument that such utterances would propagate anti-national sentiments.