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4 things that the Law Commission must fix in Indian freedom of speech laws: Amnesty, i-Probono

Legal assistance NGO i-Probono and human rights organisation Amnesty International India recommended changes in defamation and contempt laws to the Law Commission of India to meet international standards on freedom of speech and expression and protect journalists and civil society from the looming threats of Strategic Litigation Against Public Participation (SLAPP).

1. Criminal defamation (is criminal)

iProbono recommended that journalists should be made immune under Indian penal provisions on defamation, citing 17 countries that have abolished criminal defamation laws.

Amnesty asked for a complete repeal of sections 499 and 500 - provisions for defamation - under the Indian Penal Code (IPC) and the decriminalisation of defamation, arguing that sufficient remedy against defamation already exists under civil law.

Amnesty wrote:

“Criminal defamation laws in India are open to misuse, and are in practice deployed to harass and intimidate journalists5, critics of large businesses6, and human rights defenders. Criminal trials tend to take years to be completed, and prolonged pre-trial detention of suspects is common. Compensation for wrongful arrests is rarely awarded.The threat of being arrested, held in pre-trial detention, and subjected to tortuous criminal trials create a situation where “the process is the punishment.”

2. Civil defamation needs SLAPP carve-outs

iProbono recommended that India should either make a law protecting “legitimate voices” from defamation allegations or amend procedural laws to enable courts to summarily dismiss defamation suits that are SLAPP. It asked for the amendment of Order 7 Rule 11 of the Code of Civil Procedure (CPC) 1906 which is the provision for “rejection of plaint”.

Amnesty said that the law on civil defamation should be codified and should allow for correction and apologies as remedies and should only prescribe restorative and not punitive damages to be awarded to the claimant.

3. Scandalous contempt of court

Amnesty and iProbono both argued against the existence of the condition - “scandalising the court” - which is a basis for being held guilty under India’s civil and criminal contempt laws.

iProbono said that the law should be amended to drop the expression “scandalises or tends to scandalise” from it. “The nature of the scandalising offence in the Act as it currently stands, is so broad and vague that it creates a very uncertain legal standard that creates a chilling effect on the freedom of speech,” it wrote.

Amnesty recommended to repeal the existing law – Section 2(c) of the Contempt of Courts Act – or, failing that, to drop the words “tends to” from the law, since those words add further uncertainty to the scope of the offence. To illustrate the extent of uncertainty, it said:

“Articles and cartoons alleging corruption on the part of individual judges, a survey among advocates asking them to rate judges on various aspects, and even an affidavit to the court criticizing its working have been ruled to constitute contempt […]It is unclear whether a person publishing a statement must intend for it to (or know that it is likely to) scandalise the court, or lower its authority, or interfere with the course of justice, for the statement to amount to contempt. In a case involving a state Chief Minister, the Supreme Court stated that whether the defendant intended the lowering of prestige of judges and courts in the eyes of the people “may be a matter for consideration in the sentence to be imposed on him but cannot serve as a justification.”

4. Scrap Section 66A

Amnesty also asked for the repeal or substantial revision of Section 66A of the Information Technology Act 2000.

It wrote:

“Authorities have used section 66A and other laws to arrest people for:

- A satirical illustration about the West Bengal Chief Minister and her decision to seek to remove a party colleague from a ministerial position;

- Cartoons caricaturing Parliament, the Constitution and other national symbols to depict their ineffectiveness;

- A tweet alleging that the son of the Finance Minister was corrupt

- A Facebook post – and a ‘like’ - questioning a bandh (strike) in Mumbai to mourn a political leader’s death

- Online comments alleging land-grabbing and illegal detention by the brother of the Agriculture Minister”

Both organisations were responding to the Law Commission’s call for comments on its consultation paper on media law.

Amnesty International India Submission on Media Laws (With Summary)

IProbono recommendations by legallyindia

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