Freedom of expression is protected under the Indian constitution and other international treaties to which India is a party. Indeed, India has always been proud of its robust democratic heritage with its thriving and diverse civil society space. Expressing one’s opinion and arguing one’s point of view has always been an Indian character trait best epitomised by Amartya Sen’s classic “The Argumentative Indian”. Public debate has recently been stifled, however, through various laws at the national and state levels and harsh actions taken to criminalise peaceful expression. Draconian laws such as the sedition provision of the penal code, the criminal defamation law and laws dealing with hate speech to silence dissent are commonly used by the Government. These laws are vaguely worded, antiquated, overly broad, prone to misuse, and have been repeatedly used for political purposes against critics across the country.
A big bone of contention is the controversial Foreign Contributions Regulation Act (FCRA). The Act regulates foreign funding for domestic NGOs and prohibits funding in cases where activities are deemed to be detrimental to national interest. Due to the use of vague and broad terms such as “political nature”, “economic interest of the State” or “public interest” to denote what is deemed detrimental, the Government has been able to arbitrarily decide whether to cancel the FCRA licenses of NGOs across the country with foreign funding to NGOs dropping by half last year, amid up to 10,500 suspended licenses.
In a joint statement in June 2016, the UN Special Rapporteurs on the rights to freedom of peaceful assembly and association, freedom of opinion and expression, and on human rights defenders called for the Act to be repealed, stressing that it fails to comply with international human rights norms and standards. “We are alarmed that FCRA provisions are being used more and more to silence organisations involved in advocating civil, political, economic, social, environmental or cultural priorities, which may differ from those backed by the Government,” they remarked.
Against the backdrop of the current climate for freedom of expression in India, the Government took a regressive position on A/HRC/RES/32/31 on “Civil society space”, adopted during the 32nd session of the Council. India remarked that “civil society must operate within the framework of domestic laws.” The Government rejected the view espoused by the Special Rapporteurs, indicating that it felt that the FCRA does not need to comply with international human rights norms and standards. The fact that India voted in favour of all amendments to the resolution is particularly worrying as many of these amendments provide a borad leeway for States to be able to restrict the freedom of assembly and expression of civil society as they see fit, as soon as opinion diverges from State-sponsored interests.
The affirmation of such views goes against the very nature of India’s rich democratic roots, in which the understanding and use of an argumentative tradition have always been, and will always be, critically important, for the success of India’s democracy, the defence of its secular politics, the removal of inequalities related to class, caste, gender and community, and the pursuit of sub-continental peace.