Of Freedoms, Exceptions and Propaganda in India

It is in the seemingly, innocuous employment of propaganda, disguised with practiced deft as the exercise of a Fundamental Right camouflaged as ‘freedom’ that lie the bane of existence of the very same right. And, ironically too, the enforcement of the said ‘freedom’ itself risks quashing the constitutional right while on its intended path. Therein lies the truth and need to identify and weed out propaganda - the real stumbling block in the quest for freedom. So, while paradoxically, and on the face of things, a right may be curtailed, the restriction may work in the favour of upholding the very right that appears to be hindered…the intended reach of democracy could well justify the impediment. The exercise of one’s right to speech and expression, when curtailed for documented lawful reasons, could cause more damage than good to its intended goal.
Propaganda has been in existence since eons and used strategically, in the past, by nations, political leaders, sections of the media over the years and, of late, the social media. So, till a said ‘truth’ is spread without any resistance, it has the propensity of running amok, unbridled in its reach: That is, till it is countered by another ‘truth’ that could expose the primary truth and reveal its real nature and intention while, at all times, hiding its own true identity, read, intention. The Freedom of Speech and Expression, when taken out in isolation from the cluster of Fundamental Rights ‘guaranteed by the Indian Constitution,’ is similarly assured in, albeit, a ‘conditionally-curtailed’ version: Till, there is another entity which chooses to exercise its own Freedom of Speech and Expression by resisting the original entity, but lawfully, for having subverted one or more of the ‘conditions’ that the Freedom was originally ‘subject to.’

For Speech to be unfettered, the need for a law specific to its protection and proliferation is strong, less as an assurance and an exhaustive definition to identify range and reach but, particularly to create a buffer for punitive action and counter attempts to stifle the same.

To understand the extent of Freedoms, that of Speech and Expression besides those pertaining to Assembly, Association, Movement, Residence and Profession, it is imperative to realise that the Freedoms are firstly guaranteed only to Indian Citizens and not foreigners.

Case in point being the recent Supreme Court ruling that quashed the claim of the Rohingyas’ right as a fundamental right under the Indian Constitution to reside and settle in India.

Instead of applying the Literal Rule of interpretation to the claim that the Rohingyas’ right not to be deported would arise from the Right to Life and Personal Liberty as assured under Article 21 and, concurrently, available to all human beings, the Supreme Court employed the Golden Rule of interpretation, to primarily avoid anomalous and absurd consequences from arising, and chose to see the right not to be deported as arising from the Right to Reside and Settle in India under Article 19(1)(g). The said right applied only to Indian citizens and precluded the Rohingyas from availing its benefits and preventing deportation, the raison d’etre for the very petition.

Now, the Rohingya issue like most others in India’s political scenario is synonymous with propaganda. On the face of things, while Freedom of Speech for one could be construed as Propaganda by another, it’s in the legality of the act; legal liabilities that accrue and the conditional reach accorded by legislation to each that are distinctly diverse. Freedom of Speech is guaranteed by the Indian Constitution and comes with riders that control, restrict and guide citizens who are bound to conform to avail its benefits. 

Propaganda, on the other hand, is not defined in law and is, hence, open to selective and convenient interpretation. Any accumulation of selective facts, repeated, relayed and amplified with political motives, towards a particular end or with an agenda towards convincing masses or audiences of a view or a theory is broadly called propaganda: Which brings us back to the original and plain understanding of Propaganda being a variant of Freedom of Speech and Expression.

What makes it different is that, for one, it is not defined in the law, particularly so, the law pertaining to Freedom of Speech and Expression. It is also not covered by limiting conditions or prerequisites of its own.

Apart from the usual exceptions as laid down by the law to limit the Freedom of Speech and Expression itself, Propaganda cannot be curtailed by exceptions of its own. To think of it, Propaganda may be systematically skewed and sinister in intention but is protected by the very Freedom of Speech and Expression that it threatens to manipulate. 

When the two-judge bench of Justices DY Chandrachud and Indira Banerjee pulled up the Maharashtra government over the case against Republic TV’s Arnab Goswami, two days after the Bombay High Court turned down Mr Goswami's plea against his arrest and the reopening of the case and granted him interim bail in a 2018 abetment to suicide case, Justice Chandrachud’s comments, although Obiter Dicta, made for an interesting observation.

He said, "I do not watch the channel," had said Justice Chandrachud adding if constitutional courts do not interfere, "we are traveling the path of destruction undeniably". Now, that off-the-cuff comment of not watching the channel went on to get amplified as “don’t like it, don’t watch it.” It may be recalled that the Supreme Court had, through a three-judge bench of the-then Chief Justice R.M. Lodha, Justice Kurien Joseph and Justice R.F. Nariman, in 2014, rejected a public interest litigation against the release of PK on grounds of nudity and hurtful religious portrayal saying, “This is art, entertainment — don’t bring religious facets. If you don’t like, you don’t watch. Let others watch.”

Now, as the film’s scenes weren’t interpreted as qualifying for the ‘exceptions’ to the Freedom of Speech and Expression by the Supreme Court, the film saw the light of the day: Never mind the intent behind the scenes, the feelings of ‘a’ community outraged by selective mockery and the propaganda it generated.

That the attempt was fraught with risks that could trigger public outrage even hurt religious sentiments was glossed over by the judiciary which felt the Indian audience was ‘mature enough to judge.’

For an act to qualify as an innocent expression of Freedom of Speech and Expression and survive the light of the day, instead of being nipped at the onset by the exceptions as laid down by the law, is an issue of interpretation. Now, if the State decides to swoop down on private individuals for what may be considered an unmotivated exercise of ‘freedom of speech and expression’ the judiciary steps in. 

Concurrently, if the judiciary continues to perceive acts of ‘malicious propaganda’ with the potential of creating ‘conflict’, issues with ‘public order’ or ‘likely to affect relations with other nations,’ as innocuous attempts to exercise Freedom of Speech and Expression; exceeds its brief or tries to usurp legislative powers, the legislature will have to step in with a law that identifies and examines ‘propaganda’ and weed out whatever is illegal, by definition, or through an ordinance as the need may be. Either way, the judiciary will be restricted from usurping ‘legislative’ rights.

Often, the issue of tackling freedom, particularly so of Speech and Expression, finds itself being tossed between the judiciary and the legislature with neither wanting to bell the cat. After all, any decision in this regard is bound to be received with overwhelming criticism and outrage within India and beyond borders.

So, after pussyfooting the issue for months on end, the Supreme Court has now asked the Centre to consider framing a law to regulate content on OTT (Over-the-top) platforms and submit a copy of the draft legislation for the top court's consideration.

That way, the onus of upholding the ‘freedom’ will rest upon the judiciary but be restricted to a written law created by legislation and not open to wide interpretation.

‘Entertainment’ platforms continue being unregulated in India and remain beyond the reach of the law of the land, while continuing to persist with ‘malicious provocation’, uncensored even ‘ribald’ footage, and ‘sinister propaganda’ through films, programmes and shows. India is in the process of finalising a law on OTT. A law with teeth, a law that will distinguish between Freedom of Speech and Expression, its Exceptions by law and ‘Illegal’ propaganda on OTT platforms. This way, the seemingly innocuous employment of propaganda, disguised with practiced deft as the exercise of a Fundamental Right camouflaged as ‘freedom,’ will be brought, at least in part, within the ambit of the law. An identification of propaganda and the creation of a definition by law could help sift out the ‘illegal’ component of propaganda from the innocuous rest.

Facts within propaganda, by themselves, may be indicative of ‘objectivity’ on the fact of things but owing to their repetitive portrayal or depiction tends to betray an insidious ‘subjectivity.’ That compounded with the selective portrayal of ‘some’ facts while religiously eliminating the portrayal of obvious ‘others’ exposes propaganda as distinct from fact.

Till legislation on media, social media and OTT platforms is evolved as will be the natural progression in time, judiciary will need to call out the skewed ‘subjectivity’ and the ‘mischief’ camouflaged as ‘fact.’ 

To expect the judiciary to do it judiciously, all the time, in the absence of an enacted law is akin to expecting the legislature to abdicate the onus of its prime role – Legislation. The recent spurt in the judiciary in India seeming to reprimand the Legislature about its duties to the point of blurring the lines in an all-important Separation of Powers only underline the need to legislate and ‘define’ processes that risk being misused and tackled arbitrarily by motivated entities.

The need to define propaganda is felt now more than ever.

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This commentary summarises discussions undertaken during virtual sessions of The Chamber Conversations on 'Freedom of Speech and Expression vs Propaganda' held through May 2021 with Legal Professionals, Industry Experts and Freedom Law Activists from Mumbai (India), New Delhi (India), Kolkata (India), Birmingham (UK), Marseille (France), Kyaukphyu (Myanmar) and Sibiu (Romania).

The Chamber Conversations are held by The Chamber Practice of Solicitor Gajanan Khergamker in conjunction with DraftCraft Law Network and DraftCraft Institute of Law with Media Partner The Draft.

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