The invocation of criminal law across India to punish citizens for being ‘disrespectful’ to General Rawat is problematic, writes lawyer Rahul Machaiah.

General Bipin RawatImage for representation: PTI
news Law Thursday, December 23, 2021 - 17:09

After the tragic demise of General Bipin Rawat, his wife and eleven officers in a helicopter crash, scores of people took to social media to express grief and condole the deaths. General Rawat was hailed as an outstanding soldier and a leader who was keen on introducing key reforms in the armed forces. However, there are citizens whose reactions to his death were infused with suspicion, bitterness, and apathy. What is problematic is the invocation of criminal law across India to punish these citizens for being ‘disrespectful’ to General Rawat.

Public Mischief

In Karnataka, Chief Minister Basavaraj Bommai instructed the police to crack down on people who had posted disrespectful content about General Rawat and the police swung into action. One of the accused had allegedly posted a comment in Kannada that translates to “When will Doval die?.” He was booked by the Mangaluru police. The Bengaluru Police registered a case against a person accused of describing General Rawat as PM Modi’s “slave” and attacking his stand on Chinese incursions. 

Even a person, who allegedly published posts that read, “The only people who work like dogs in India are defence personnel #RIP_CDS,” and “Now only Doval is left with dirty secrets,” was not spared by the Somwarpet Police. These people have been booked under Section 505 of the Indian Penal Code which pertains to public mischief.

To understand why the registration of cases under Section 505 (Statements conducing public mischief) is problematic, it is important to notice the provision’s scope and legislative intent. Among other things, it criminalizes making or publishing statements that may create or promote enmity, hatred or ill-will between classes. It also criminalizes making statements that may cause members of the armed forces to disregard their duties or cause a section of the public to breach tranquillity. The legislative intent is to protect public order and not the reputation and honour of individuals and high-ranking government functionaries. While interpreting the scope of Section 505, the Supreme Court has categorically held that it applies only when the contentious statement actively instigates people to cause disorder and the chances of the statement causing disorder are not remote and fanciful.

None of the statements or content posted by these people attracts the ingredients of Section 505. This provision is not meant to punish people whose views could be considered unpalatable or offensive by others. In fact, the Supreme Court in Shreya Singhal v. Union of India held that discussion and even advocacy of views that may be perceived as annoying and grossly offensive are protected by the right to freedom of speech, unless the expression of such views may lead to imminent public disorder. Even if the content is defamatory, Section 505 may not be invoked as a substitute for private remedies under the law of defamation.

Hate Speech

In other parts of India, the police have invoked provisions pertaining to hate speech against people who posted ‘derogatory content’ about General Rawat. For instance, a tribal leader who ‘expressed happiness’ over General Rawat’s death was booked under Section 153B of the IPC. This is bizarre, as Section 153B pertains to imputations and assertions prejudicial to national integrity, and applies only when such imputations and assertions are made against religious, racial, linguistic, and regional groups and castes. In other words, Section 153B is intended to deter hate speech against castes and communities and not to punish people for insulting a popular or revered personality. It is equally strange to assume that an annoying or distasteful remark about General Rawat can adversely affect national integrity.

Preventive action

In Jammu & Kashmir, Sabbah Haji who founded the Haji Public School landed in trouble after sharing an Instagram post that described General Rawat as a ‘war criminal.’ The post was critical of him for defending an Army officer who tied a civilian to a jeep as a human shield. After people complained, an Executive Magistrate asked her to execute a bond promising not to disturb tranquillity or breach the peace. She was also asked to remain present at a police station for three days. Surely, describing General Rawat as a war criminal is a controversial statement that may be perceived as defamatory. However, as pointed out earlier, stringent provisions of criminal law meant for a wholly different purpose should not be used as a substitute for defamation proceedings which are regulated by special rules when they relate to criticism of public servants.

Also, as the Supreme Court has repeatedly clarified, restrictions on the freedom of speech and expression may be imposed to protect public order only when there is a proximate connection between speech and public disorder. It is unconstitutional to impose restrictions on a person’s freedom of speech based on ‘far-fetched’ and ‘hypothetical considerations’ regarding the possibility of public disorder.

Freedom to differ

It is understandable that controversial statements and distasteful remarks on General Rawat’s death may offend a lot of citizens. Such citizens are free to criticize people who posted such content and express strong disapproval. After all, one of the objectives of protecting free speech is to create a marketplace of ideas and controversial views may be discredited by those who disagree. As the Supreme Court of the US eloquently opined- “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

Rahul Machaiah is a lawyer based in Karnataka

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