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Free Speech Stands To Lose, As State Favours Criminal Defamation Law

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By Abhishek Jha

On Wednesday, the government argued in favour of the criminal defamation law in the Supreme Court. “Here you can file a civil suit and it will drag on for another 20 years. Nobody cares. In criminal defamation, there is some deterrence,” Attorney General Mukul Rohtagi argued for the government. This was in response to petitions arguing for the removal of criminal defamation laws filed by, among others, BJP leader Subramaniam Swamy himself who has several defamation cases filed against him by Tamil Nadu Chief Minister Jayalalithaa. Delhi Chief Minister Arvind Kejriwal and Congress vice president Rahul Gandhi, both of who have criminal defamation charges against them, are also among the petitioners.

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The government also argued that the petitions for the removal of the defamation laws be referred to a Constitution Bench as they need adjudication on whether the criminal defamation laws (section 499 and 500 of the Indian Penal Code) are ultra vires of Article 19(2) of the Constitution that puts reasonable restrictions on freedom of speech and expression granted to us by Article 19(1). Justice Misra, who is on the two judges’ bench hearing the petitions, replied that, “It was two judges’ benches and not constitution benches who decided cases of free speech like the section 66A of Information Technology Act and decriminalisation of homosexuality. Why do you say that every case requiring an interpretation of law has to go to a Constitution Bench (sic).

In the several explanations, illustrations, and exceptions written into Section 499 of the IPC, safeguards are provided so that criticisms can be made. For instance, in relation to public conduct of public servants, “It is not defamation to express in a good faith any opinion whatever re­specting the conduct of a public servant in the discharge of his public functions, or respecting his character, so far as his character appears in that conduct, and no further.” However, even a true imputation can be made to a person only “if it be for the public good that the imputation should be made or published.

Civil defamation, on the contrary, not being written specifically in any law, is judged mostly on basis of Law of Torts which is based on judicial precedent. However, criminal defamation may lead to a police investigation and imprisonment up to 2 years. It has been used mostly by the state to imprison those expressing dissent. Students and the Principal of a college were arrested in Kerala last year for publishing a photograph of Prime Minister Narendra Modi along with those of Adolf Hitler, Osama bin Laden and Ajmal Kasab in a college magazine. The FIR had been filed under Section 500 among others. While wealthy or powerful politicians have the ability to fight such cases among themselves, it is citizens who face trouble with it.

It is notable that United Kingdom, which gave this law to India abolished seditious libel and criminal defamation in 2009. If the law is abolished in India too, defamation can still be fought but will not lead to imprisonment. This will be a great boost for free speech, as, presently, the criminal defamation law forces one to self-censor even opinions that might invite the cudgel of powerful people. One hopes that the Supreme Court, which scrapped the controversial Section 66(A), will pass a judgement that gives more power to the common man.

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  1. Daredevil

    The laws regarding freedom of speech are unevenly applied, as there seems to be a lot of cherry picking especially dealing with Holocaust denial and anti-Semitism. Freedom of speech is a farce, a subterfuge behind which you can attack others but protect your own. Prosecute one, let another go. What a masquerade.

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An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

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She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

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A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

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A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

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A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

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