13 Dec 2013 | News and features
Gay rights activists chant slogans against a Supreme Court ruling criminalising gay sex in Bangalore, India (Image: Abhishek Chinnappa/Demotix)
A furor broke out in the Indian news media and social media on December 11, 2013, as news of a Supreme Court judgment made its way through the country. The court had upheld the constitutionality of Section 377 of the Indian Penal Code, which reads: “Unnatural offences — whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” The Penal Code is a legacy of the rule of the United Kingdom, where homosexuality was made legal in 1967.
The section had been previously challenged by Naz Foundation, a NGO that works in the area of HIV and sexual health. In 2009, the Delhi High Court had ruled that the section was in violation of Acts 21, 14 and 15 of the Constitution of India, which protect citizen’s rights to personal liberty, equality, and from being discriminated against. Some of the arguments that swayed the Court essentially reasoned that 377 has been repeatedly used to abuse gay, LBGT [lesbian, gay, bisexual & transgender] and even health workers by authority figures, and by its very existence it allowed the gay community to be targeted and ostracized by society large. The logic was that even though Section 377 only focused on the ‘act’ of unnatural carnal behavior between men, women or men and women, essentially, due to their sexual activity, it is the gay community that had been unfairly targeted by it. The Court also felt that 377 did not need to cover ‘consensual sexual acts between adults on the ground of public morality’ and nor did it distinguish between the public and private sphere. Therefore, it concluded that public morality was different from constitutional morality, which the Section was in violation of.
What followed was jubilation from gay rights activists who thought that the judgment, though limited only to Delhi, was the start of a progressive new India that would possibly champion gay rights and their freedom of expression. “Homosexuality is not a crime!” screamed the headlines in India’s most popular English magazine, bringing a smile to India’s small LGBT population of about 25,00,000 people.
However, only days later the judgment was challenged in the Supreme Court, which has given its decision only 5 years later. In a huge setback to LGBT rights, the Court has upheld Section 377 as constitutional, thereby making homosexual intercourse illegal. The reasoning of the Supreme Court of India, in a nutshell, is that the language of the Section, while may seem unfair to a certain community, certainly does not single them out. In fact, the court feels that many other non consensual situations involving the ‘act’ but different parties like young children, men and women and so on, are protected by the Section. That it is misused by authorities does not make it unconstitutional. A final nail in the coffin was the Court’s reasoning that instead of erring on the side of judicial overreach, the Court would rather wait for Parliament to legislate the Section away. Its judgment read: “After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs. The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision.” It ended up saying the abuse of this Section – “used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community” – might be a factor for the Legislature to weigh while considering amending Section 377.
Therefore, the Supreme Court has firmly put legislating back in the corner of the legislators, and in turn earned the wrath of a section of India’s middle class. In an article titled ‘Justice Denied’, commentator Pratap Bhanu Mehta has slammed the judgment writing, “But the court does not seem to realise that hiding behind Parliament’s omissions is not a neutral stance; it upholds the constitutionality of an evil law. In the name of deference to an assortment of petitioners, it gives aid and succour to the reactionary elements of a religion rather than its best exemplars… Even if it were upheld by Parliament, it would infringe on basic rights and possibly the basic structure. The court’s job is to take a stand on constitutionality. It did not do its job on the occasion that warranted it.”
The criticisms continue. In Kafila, Siddharth Narain has presented a detailed analysis of what he considers “narrow and blindfolded interpretation of the law, ignoring the momentous changes in society and notions of morality that India is witnessing.” Further, according to Narain, “the Court also said that there were ‘only 200 persons’ prosecuted under section 377 in the last 150 years, ignoring the fact that these are 200 recorded judgments of the High Courts and Supreme Court, which is only a fraction of the unreported cases at the trial level. Further this does not take into account the impact of having the law on the statute book, and the threat of use of the law, that LGBT persons face on an every day basis.”
Even the present government has jumped into the debate. The Finance Minister, P. Chidambaram has said that, “in 2013, to say everyone should have same sexual orientation is absurd,” and that the “government should file curative petition, ask for matter to be reviewed by bench of 5 judges.” Even the Congress President, Sonia Gandhi made a statement that, “Delhi High Court had wisely removed an archaic, unjust law… I hope the Parliament will address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those affected by this judgment.”
However, there are those who support the Supreme Court’s decision to put the onus on the legislators. Member of Parliament Rajeev Chandrasekhar thinks that, “the issue of legalising same sex relationships is best protected by a proper law in Parliament that explicitly protects these relationships and not be based on ‘interpretative’ of an old statute! The appeal of the High court decision was filed Muslim Law board, Christian clerics and a BJP MP who have opposed this and not the judge/Supreme Court!”
Meanwhile, social media in India is abuzz with people changing their profile pictures to black in solidarity of the LGBT community also has users putting up a picture kissing someone of the same sex, with the tag #gayforaday. Protests have been arranged in New Delhi and people have already started petitions and strategies to lobby parliamentarians to amend the Section to be reflective of a modern Indian society that gives even its sexual minorities the equality and dignity they deserve.
However, the sad truth is that with elections looming, political parties including the ruling Congress Party is unlikely to take up the issue in parliament. As a DNA news report explains, “there is no consensus within the Congress, party sources said, as it is aware that a step in favour of gay rights can increase its unpopularity as most of India, especially religious groups cutting across various religions, are totally against it and see it as a sin. There is also no denying the fact that gays and lesbians have a very thin population in India and no action in their favour will hardly reflect in the elections.” As news of the Supreme Court judgment broke, various religious parties and Godmen with huge followings rejoiced. Baba Ramdev, much in the news for his massive following and political ambitions declared upon hearing the verdict that, “the court has respected sentiments of millions of Indians by declaring homosexuality a crime.”
13 Dec 2013 | Europe and Central Asia, News and features, Russia
Grafitti of Tommie Smith, John Carlos and Peter Norman showing solidarity for the civil rights movement at the Mexico City Olympics in 1968 (Image: Newtown graffiti/Wikimedia Commons)
Athletes preparing to head off to Sochi Winter Olympics in February, have been reminded that they are barred from making political statements during the games.
”We will give the background of the Rule 50, explaining the interpretation of the Rule 50 to make the athletes aware and to assure them that the athletes will be protected,” said IOC President Thomas Bach in an interview earlier this week. Rule 50 stipulates that ”No kind of demonstration or political, religious or racial propaganda is permitted in any Olympic sites, venues or other areas.” Failure to comply could, at worst, mean expulsion for the athlete in question.
Political expression is certainly a hot topic at Sochi 2014. The games continue to be marred by widespread, international criticism of Russia’s human — and particularly LGBT– rights record. The outrage has especially been directed at the country’s recently implemented, draconian anti-gay law. Put place to “protect children”, it bans “gay propaganda”. This vague terminology could technically include anything from a ten meter rainbow flag to a tiny rainbow pin, and there have already been arrests under the new legislation.
The confusion continued as the world wondered how this might impact LGBT athletes and spectators, or those wishing to show solidarity with them. Russian authorities have for instance warned of possible fines for visitors displaying “gay propaganda”. Could this put the Germans, with their colourful official gear, in the firing line? (Disclaimer: team Germany has denied that the outfits were designed as a protest.)
On the other hand, Russian president Vladimir Putin has promised there will be no discrimination at the Olympics, and IOC Chief Jaques Rogge, has said they “have received strong written reassurances from Russia that everyone will be welcome in Sochi regardless of their sexual orientation.”
On top of this, the IOC also recently announced that there will be designated “protest zones” in Sochi, for “people who want to express their opinion or want to demonstrate for or against something,” according to Bach. Where these would be located, or exactly how they would work, was not explained.
But while the legal situation in Russia adds another level of uncertainty and confusion regarding free, political expression for athletes, rule 50 has banned it for years. And for years, athletes have taken a stand anyway.
By far the most famous example came during the 1968 Olympics in Mexico City — American sprinters Tommie Smith and John Carlos, on the podium, black gloved fists raised in solidarity with the ongoing American civil rights movement. The third man on the podium, Australian Peter Norman, showed his support by wearing a badge for the Olympic Project for Human Rights. All three men faced criticism at the time, but the image today stands out as one of the most iconic and powerful pieces of Olympic history.
However, the history of Olympians and political protest goes further back than that. An early example is the refusal of American shotputter Ralph Rose to dip the flag to King Edward VII at the 1908 games in London. It us unknown exactly why he did it, but one theory is that it was an act of solidarity for Irish athletes who had to compete under the British flag, as Rose and others on his team were of Irish descent.
The Cold War years unsurprisingly proved to be a popular time for athletes to put their political views across. When China withdrew from the 1960 Olympics in protest at Taiwan, then recognised by the west as the legitimate China, taking part. The IOC then asked Taiwan not to march under the name ‘Republic of China’. While considering boycotting the games, the Taiwanese delegation instead decided to march into the opening ceremony with a sign reading “under protest”.
The same year as the Smith and Carlos protest, a Czechoslovakian gymnast kept her face down during the Soviet national anthem, in protest at the brutal crackdown of the Prague Spring earlier that year. And that was not the only act of defiance against the Soviet Union. During the controversial 1980 Moscow Olympics, boycotted by a number of countries over the USSR invasion of Afghanistan, the athletes competing also took a stand. The likes of China, Puerto Rico, Denmark, France and the UK marched under the Olympic flag in the opening ceremony, and raised it in the medal ceremonies. After winning gold, and beating a Soviet opponent, Polish high jumper Wladyslaw Kozakieicz also made a now famous, symbolic protest gesture towards the Soviet crowd.
But there are also more recent examples. At Athens 2004, Iranian flyweight judo champion Arash Miresmaeili reportedly ate his way out of his weight category the day before he was set to fight Israeli Ehud Vaks. “Although I have trained for months and was in good shape, I refused to fight my Israeli opponent to sympathise with the suffering of the people of Palestine” he said. A member of the South Korean football team which beat Japan to win bronze at the 2012 London Olympics, celebrated with a flag carrying a slogan supporting South Korean sovereignty over territory Japan also claims.
When the debate on political expression comes up, the argument of “where do we draw the line” often follows. If the IOC is to allow messages of solidarity with Russia’s LGBT population, should they allow, say, a Serbian athlete speak out against Kosovan independence? Or any number of similar, controversial political issues? Is it not easier to simply have a blanket band, and leave it at that?
The problem with this is, as much as the IOC and many other would like it, the Olympics, with all their inherent symbolism, simply cannot be divorced from wider society or politics. The examples above show this. With regards to Sochi in particular, the issue is pretty straightforward — gay are human rights. Some have argued we should boycott a Olympics in a country that doesn’t respect the Universal Declaration on Human Rights, or indeed the Olympic Charter. This is not happening, so the very least we can is use the Olympics to shine a light on gay rights in Russia. At its core, the Olympics are about the athletes — they are the most visible and important people there. It remains to be seen whether any of them will take a stand for gay rights, outside cordoned-off protest areas, in the slopes and on the rink, where the spotlight shines the brightest. And if they do, they should have our full support.
This article was posted on 13 Dec 2013 at indexoncensorship.org
12 Dec 2013 | Campaigns
According to the BBC, Universities UK has advised that gender segregated meetings may be permitted on campuses “if requested by speakers from orthodox religious groups”. Index on Censorship is concerned by this position.
Universities as places of learning and debate should be open to having speakers from all backgrounds and positions, but those speakers should not be able to define how to segregate the audience, or put restrictions on who is in the audience, because of their religious beliefs. If someone who is invited to speak at a university event, then they should not be able to demand gender segregation of the audience in line with their religious beliefs.
Rachael Jolley, editor of Index on Censorship magazine said:
“In the 19th century and before, there were numerous restrictions on people’s freedoms in the UK, because of the way they chose to practise religion. Religious minorities were not allowed to take certain jobs, or attend Oxford and Cambridge universities. Today we believe in a society where people are free to choose their religion, but we also believe in an equal society where men and women are allowed equal status and equal chances, and this should be at the heart of our universities and our democratic society.”
In the next issue of Index on Censorship magazine, we explore religion and offence and freedom in a special report.
12 Dec 2013 | Digital Freedom Reports, Europe and Central Asia, European Union, Index Reports, News and features, Politics and Society
As Ukraine experiences ongoing protests over lack of European integration, Index’ new report looks at the EU’s relationship with freedom of expression (Photo: Anatolii Stepanov / Demotix)
Index on Censorship’s policy paper, Time to Step Up: The EU and freedom of expression, looks at freedom of expression both within the European Union’s 28 member states, which with over 500 million people account for about a quarter of total global economic output, but also how this union defends freedom of expression in the wider world. States that are members of the European Union are supposed to share “European values”, which include a commitment to freedom of expression. However, the way these common values are put into practice vary: some of the world’s best places for free expression are within the European Union – Finland, Netherlands, Denmark and Sweden – while other countries such as Italy, Hungary, Greece and Romania lag behind new and emerging global democracies.
This paper explores freedom of expression, both at the EU level on how the Commission and institutions of the EU protect this important right, but also across the member states. Firstly, the paper will explore where the EU and its member states protect freedom of expression internally and where more needs to be done. The second section will look at how the EU projects and defends freedom of expression to partner countries and institutions. The paper will explore the institutions and instruments used by the EU and its member states to protect this fundamental right and how they have developed in recent years, as well as the impact of these institutions and instruments.
Outwardly, a commitment to freedom of expression is one of the principle characteristics of the European Union. Every European Union member state has ratified the European Convention on Human Rights (ECHR); the International Covenant on Civil and Political Rights (ICCPR) and has committed to the Universal Declaration of Human Rights. To complement this, the Treaty of Lisbon has made the EU Charter of Fundamental Rights legally binding which means that the EU institutions and member states (if they act within the scope of the EU law) must act in compliance with the rights and principles of the Charter. The EU has also said it will accede to the ECHR. Yet, even with these commitments and this powerful framework for defending freedom of expression, has the EU in practice upheld freedom of expression evenly across the European Union and outside with third parties, and is it doing enough to protect this universal right?
Within the European Commission, there has been considerable analysis about what should be done when member states fail to abide by “European values”, Commission President Barroso raised this in his State of the Union address in September 2012, explicitly calling for “a better developed set of instruments” to deal with threats to these perceived values and the rights that accompany them. With threats to freedom of expression increasing, it is essential that this is taken up by the Commission sooner rather than later.
To date, most EU member states have failed to repeal criminal sanctions for defamation, with only Croatia, Cyprus, Ireland and the UK having done so. The parliamentary assembly of the Council of Europe called on states to repeal criminal sanctions for libel in 2007, since then little action has been taken by EU member states. There also remain significant issues in the field of privacy law and freedom of information across the EU.
While the European Commission has in the past tended to view its competencies in the field of media regulation as limited, due to the introduction of the Charter of Fundamental Rights into EU primary law, the Commission is looking at a possible enhancement of its role in this area.
With media plurality limited across Europe and in fact potentially threatened by the convergence of media across media both online and off (and the internet being the most concentrated media market), the Commission must take an early view on whether it wishes to intervene more fully in this field to uphold the values the EU has outlined. Political threats against media workers are too commonplace and risks to whistleblowers have increased as demonstrated by the lack of support given by EU member states to whistleblower Edward Snowden. That the EU and its member states have so clearly failed one of the most significant whistleblowers of our era is indicative of the scale of the challenge to freedom of expression within the European Union.
The EU and its member states have made a number of positive commitments to protect online freedom, including the EU’s positioning at WCIT, the freedom of expression guidelines and the No-Disconnect strategy helping the EU to strengthen its external polices around promoting digital freedom. These commitments have challenged top-down internet governance models, supported the multistakeholder approach, protected human rights defenders who use the internet and social media in their work, limited takedown requests, filters and others forms of censorship. But for the EU to have a strong and coherent impact at the global level, it now needs to develop a clear and comprehensive digital freedom strategy. For too long, the EU has been slow to prioritise digital rights, placing the emphasis on digital competitiveness instead. It has also been the case that positive external initiatives have been undermined by contradictory internal policies, or a contradiction of fundamental values, at the EU and member state level. The revelations made by Edward Snowden show that EU member states are violating universal human rights through mass surveillance.
The Union must ensure that member states are called upon to address their adherence to fundamental principles at the next European Council meeting. The European Council should also address concerns that external government surveillance efforts like the US National Security Agency’s Prism programme are undermining EU citizens’ rights to privacy and free expression. A comprehensive overarching digital freedom strategy would help ensure coherent EU policies and priorities on freedom of expression and further strengthen the EU’s influence on crucial debates around global internet governance and digital freedom. With the next two years of ITU negotiations crucial, it’s important the EU takes this strategy forward urgently.
While the European Commission has in the past tended to view its competencies in the field of media regulation as limited, due to the introduction of the Charter of Fundamental Rights into EU primary law, the Commission is looking at a possible enhancement of its role in this area.
With media plurality limited across Europe and in fact potentially threatened by the convergence of media across media both online and off (and the internet being the most concentrated media market), the Commission must take an early view on whether it wishes to intervene more fully in this field to uphold the values the EU has outlined.
Political threats against media workers are too commonplace and risks to whistleblowers have increased as demonstrated by the lack of support given by EU member states to whistleblower Edward Snowden. That the EU and its member states have so clearly failed one of the most significant whistleblowers of our era is indicative of the scale of the challenge to freedom of expression within the European Union.
Where the EU acts with a common approach among the member states, it has significant leverage to help promote and defend freedom of expression globally. To develop a more common approach, since the Lisbon Treaty, the EU has enhanced its set of policies, instruments and institutions to promote human rights externally, with new resources to do so. Enlargement has proved the most effective tool to promote freedom of expression with, on the whole, significant improvements in the adherence to the principles of freedom of expression in countries that have joined the EU or where enlargement is a real prospect. That this respect for human rights is a condition of accession to the EU shows that conditionality can be effective. Whereas the eastern neighbourhood has benefitted from the real prospect of accession (for some countries), in its southern neighbourhood, the EU has failed to promote freedom of expression by placing security interests first and also by failing to react quickly enough to the transitions in its southern neighbourhood following the events of the Arab Spring. The new strategy for this region is welcome and may better protect freedom of expression, but with Egypt in crisis, the EU may have acted too late. The EU must assess the effectiveness of some of its foreign policy instruments, in particular the dialogues for particular countries such as China.
The freedom of expression guidelines provide an excellent opportunity to reassess the criteria for how the EU engages with third party countries. Strong freedom of expression guidelines will allow the EU to better benchmark the effectiveness of its human rights dialogues. The guidelines will also reemphasise the importance of the EU, ensuring that the right to freedom of expression is protected within the EU and its member states. Otherwise, the ability of the EU to influence external partners will be limited.
Headline recommendations
• After recent revelations about mass state surveillance the EU must develop a roadmap that puts in place strong safeguards to ensure narrow targeted surveillance with oversight not mass population surveillance and must also recommit to protect whistle-blowers
• The European Commission needs to put in place controls so that EU directives cannot be used for the retention of data that makes mass population surveillance feasible
• The EU has expanded its powers to deal with human rights violations, but is reluctant to use these powers even during a crisis within a member state. The EU must establish clear red lines where it will act collectively to protect freedom of expression in a member state
• Defamation should be decriminalised across the EU
• The EU must not act to encourage the statutory regulation of the print media but instead promote tough independent regulation
• Politicians from across the EU must stop directly interfering in the workings of the independent media
• The EU suffers from a serious credibility gap in its near neighbourhood – the realpolitik of the past that neglected human rights must be replaced with a coherent, unified Union position on how to promote human rights
Recommendations
- The EU has expanded its powers to deal with human rights violations, but is reluctant to use these powers even during a crisis within a member state. The EU must establish clear red lines where it will act collectively to protect freedom of expression in a member state
- The EU should cut funding for member states that cross the red lines and breach their human rights commitments
Libel, privacy and insult
- Defamation should be decriminalised in line with the recommendations of the Council of Europe parliamentary assembly, and the UN and OSCE’s special rapporteurs on freedom of expression.
- Insult laws that criminalise insult to national symbols should be repealed
Freedom of information
- To better protect freedom of information, all EU member states should sign up to the Council of Europe Convention on Access to Official Documents
- Not all EU institutions, offices, bodies and agencies are acting on their freedom of information commitments. More must be done by the Commission to protect freedom of information
Media freedom & plurality
- The EU must revisit its competencies in the area of media regulation in order to prevent the most egregious breaches of the right to freedom of expression in particular the situations that arose in Italy and Hungary
- The EU must argue against statutory regulation of the print media and argue for independent self-regulation where media bandwidth is no longer limited by spectrum and other considerations
- Member states must not allow political interference or considerations of “political balance” into the workings of the media, where this happens the EU should be considered competent to act to protect media freedom and pluralism at a state level
- The EU is not doing enough to protect whistleblowers. National states must do more to protect journalists from threats of violence and intimidation
Digital
- The Commission must prepare a roadmap for collective action against mass state surveillance
- The EU is right to argue against top-down state control over internet governance it must find more natural allies for this position globally
- The Commission should proceed with a Directive that sets out the criteria takedown requests must meet and outline a process that protects anonymous whistle-blowers and intermediaries from vexatious claims
The EU and freedom of expression in the world
- The EU suffers from a credibility issue in its southern neighbourhood. To repair its standing in the wider world, the EU and its member states must not downgrade the importance of human rights in any bilateral or multilateral relationship
- The EU’s EEAS Freedom of Expression guidelines are welcome. To be effective, they need to focus on the right to freedom of expression for ordinary citizens and not just media actors
- The guidelines need to become the focus for negotiations with external countries, rather than the under-achieving human rights dialogues
- With criticism of the effectiveness of the human rights dialogues, the EU should look again at how the dialogues fit into the overall strategy of the Union and its member states
The European Union contains some of the world’s strongest defenders of freedom of expression, but also a significant number of member states who fail to meet their European and international commitments. To deal with this, in recent years, the European Union’s member states have made new commitments to better protect freedom of expression. The new competency of the European Court of Justice to uphold the values enshrined in the European Convention of Human Rights will provide a welcome alternative forum to the increasingly deluged European Court of Human Rights. This could have significant implications for freedom of expression within the EU. Internally within the EU there is still much that could be done to improve freedom of expression. It is welcome that that the EU and its member states have made a number of positive commitments to protect online freedom, with new action on vexatious takedown notices and coordinated action to protect the multistakeholder model of internet governance. Increasing Commission concern over media plurality may also be positive in the future.
Yet there are a number of areas where the EU must do more. The decriminalisation of defamation across Europe should be a focal point for European action in line with the Council of Europe’s recommendations. National insult laws should be repealed. The Commission should not intervene to increase its powers over national media regulators, but should act where it has clear competencies, in particular to prevent media monopolies and to help deal with conflict of interests between politicians and state broadcasters. Most importantly, discussions of mass population surveillance at the European Council in October must be followed by a roadmap outlining how the EU will collectively take action on this issue. Without internal reform to strengthen protections for freedom of expression, the EU will not enjoy the leverage it should to promote freedom of expression externally to partner countries. While the External Action Service freedom of expression guidelines are welcome, they must be impressed upon member countries as a benchmark for reform.
Externally, the EU has failed to deliver on the significant leverage it could have as the world’s largest trading block. Where the EU has acted in concert, with clear aims and objectives for partner countries, such as during the process of enlargement, it has had a big impact on improving and protecting freedom of expression. Elsewhere, the EU has fallen short, particularly in its southern neighbourhood and in its relationship with China, where the EU has continued human rights dialogues that have failed to be effective.
New commitments and new instruments post-Lisbon may better protect freedom of expression in the EU and externally. Yet, as the Snowden revelations show, the EU and its member states must do significantly more to deliver upon the commitments that have been agreed.
Full report PDF: Time to Step Up: The EU and freedom of expression
This article was posted on 12 Dec 2013 at indexoncensorship.org
