On October 9, 2020, Tanishq, an Indian jewelry brand, released an advertisement for its latest campaign1—Ekatvam—the Sanskrit word for “oneness” or “unity.”2 In the ad, a Muslim mother-in-law guides her Hindu daughter-in-law into a home immersed in preparations for the daughter-in-law’s godh bharai, a traditional Hindu baby shower.3 Three days after the advertisement aired, Tanishq pulled it.4 Outrage at an interfaith marriage5 made it abundantly clear that even a jewelry advertisement could not survive an ideologically conservative subset of the Indian public.6
This subset’s intolerance towards Tanishq’s advertisement exemplifies a systemic issue.7 After the election of Narendra Modi as Prime Minister and the corresponding rise of the Bharatiya Janata Party (“BJP”), institutionalized prejudice in India starkly increased8 and catalyzed unprecedented crackdowns by the Indian government on media and individual expression. Lately, the government’s automatic responses to civil unrest—internet shutdowns9 and punishments for political dissidents, including journalists and activists––disproportionately impact the speech of religious and ethnic minorities. Through these responses, the Indian government disregards the freedom of expression and contravenes its obligations under the International Covenant on Civil and Political Rights (ICCPR).10
In one of its most flagrant violations of freedom of expression, the Indian government, citing national security concerns, imposed a complete communications shutdown across the majority-Muslim11 territory of Jammu and Kashmir,12 including all internet, mobile networks, landlines, and cable.13 After international14 and domestic15 criticism, the shutdown slowly gave way to lesser restrictions, with periodic allowances for social media and the eventual restoration of 2G.16 Journalists and activists also increasingly faced criminal consequences for their reporting and protesting.17 The Indian government declared an intention to restore 4G on February 6, 2021, more than five-hundred days after the shutdown began.18
Just a few months after the initial shutdown in Jammu and Kashmir, India’s BJP-controlled Parliament passed the Citizenship Amendment Act, which provides a path to citizenship for asylum-seeking religious minorities from neighboring Muslim-majority countries.19 The Act drew public ire for its explicit exclusion of Muslim migrants.20 During and after the passage of the Act, protests, many sparked by the omission of Muslims, erupted throughout India.21 Once again, the government resorted to internet shutdowns22 and the targeting of journalists and activists to pacify the unrest.23
Currently, the Indian government is focusing its suppression on participants and leaders in the Farmers’ Protest,24 which is primarily comprised of the country’s Sikh minority.25 New Delhi26 and Haryana27 saw internet shutdowns after protesting farmers and police forces clashed. And in addition to arresting and charging journalists and activists,28 the government sent a legal notice to Twitter, requesting it delete user accounts, including those of journalists and activists that “encouraged violence or spread misinformation.”29 The protest is ongoing.
In India’s most recent candidature statement for the United Nations Human Rights Council (HRC), its government claimed to “fully recognize the importance of free speech and expression,”30 but the country’s record suggests otherwise. The instances of blanket suppression in Jammu and Kashmir, the Citizenship Act, and the Farmers’ Protest contradict the ICCPR, which India ratified in 1979.31 Paragraph two in Article 19 of the treaty establishes the human right of freedom of expression, establishing that individuals have the “freedom to seek, receive and impart” all forms of information through “any media…of choice.”32 Paragraph one of the same Article promises the right to hold opinions, which is recognized as a non-derogable right that cannot be subject to any exception or restriction.33 While there are limited exceptions to the freedom of expression, all of which must be necessary and proportional,34 the HRC cautioned that all-encompassing bans on internet-based dissemination systems are incompatible with the freedom of expression.35
Though India’s BJP-led government could attempt to justify its internet shutdowns and protest crackdowns as national security measures under the ICCPR’s limited exceptions,36 the scope and extent of the government’s actions are well beyond necessary or proportional and constitute blanket obstructions of access to, and dissemination of, information. Moreover, the contexts of these government actions, often movements or matters concerning minorities, implicate the non-derogable right of freedom of opinion.37 While the UN has cautioned India on its disregard for freedom of expression,38 the admonitions had no discernible effect. India publicly and steadfastly believes its actions are justified.39 Further, India is not a party to the ICCPR’s Optional Protocol, a supplementary enforcement mechanism for individual complainants to seek redress for human rights violations, which further emphasizes a lack of enforcement of the freedom of expression.40 Silenced individuals’ grievances against the Indian government must be addressed through domestic remedies.41
The BJP-led deterioration of freedom of expression exacerbates polarization in India’s populace, and perhaps that is the goal. By stifling the voices and opinions that most need heeding, internet shutdowns and other crackdowns promote the message that tolerance is no longer worthwhile. Unfortunately, these mechanisms are now normalized means for dealing with civil unrest.42 And without extensive international pressure43 and tangible enforcement of the ICCPR, this disregard for freedom of expression may intensify further. At this point, ekatvam is a far-fetched ideal, unattainable in an India where messages of peace are as unwelcome as those that purportedly cause discord.
- ↑ 1 Surbhi Gupta, Tanishq Pulls Down Ad After Social Media Uproar, Indian Express (Oct. 15, 2020), https://indianexpress.com/article/india/tanishq-pulls-down-ad-after-social-media-uproar-6724045/ [https://perma.cc/CE5E-JXBE].
- ↑ 2
Ekatvam, Sanskrit Dictionary, http://sanskritdictionary.com/?q=ekatvam#:~:text=CC%20Madhya%209.268,ekatvam,the%20existence%20of%20the%20Lord [https://perma.cc/4S8C-G8AA] (last visited Feb. 11, 2020).
- ↑ 3
DW News, India: Tanishq Jewellery Ad Pulled After ‘Love Jihad’ Uproar, YouTube (Oct. 15, 2020), https://www.youtube.com/watch?v=ZjKc7EtvvcU [https://perma.cc/XFP3-7HPP].
- ↑ 4
See Gupta, supra note 1.
- ↑ 5
See id. See also Press Trust of India, Hindu Jagran Manch Members Protest Outside Tanishq Stores In Indore, Business Standard (Oct. 13, 2020), https://www.business-standard.com/article/current-affairs/hindu-jagran-manch-members-protest-outside-tanishq-stores-in-indore-120101600829_1.html [https://perma.cc/347B-LJ5Y] (describing protestors’ demand that an apology to the Hindu community be displayed in Tanishq storefronts for six months).
- ↑ 6
But see Harshitha Kumayaa, They Share Stories of Interfaith Love to Counter Hate, Times of India (Jan. 22, 2021), https://timesofindia.indiatimes.com/india/they-share-stories-of-interfaith-love-to-counter-hate/articleshow/80400851.cms [https://perma.cc/8XQV-VZDX].
- ↑ 7
A hallmark of Modi’s time in office is his control over media outlets’ dissemination of information. See Vindu Goel & Jeffrey Gettleman, Under Modi, India’s Press Is Not So Free Anymore, N.Y. Times (Apr. 2, 2020), https://www.nytimes.com/2020/04/02/world/asia/modi-india-press-media.html [https://perma.cc/MXL5-33BM].
- ↑ 8
Last December, the BJP-controlled legislature in Assam passed a bill abolishing all madrasas. See Zarir Hussain, Indian State Bans Islamic Schools, Drawing Criticism, Reuters (Dec. 30, 2020), https://www.reuters.com/article/us-india-state-madrasas/indian-state-bans-islamic-schools-drawing-criticism-idUSKBN2941WB [https://perma.cc/JVB6-37VK]. The month before, Uttar Pradesh passed an anti-conversion law (the “Love Jihad” law); an act widely condemned as targeting Muslims. See Saurabh Sharma, Police in Uttar Pradesh Arrest 10 Men Under New Anti-Conversion Law, Reuters (Dec. 7, 2020), https://www.reuters.com/article/india-religion-crime/police-in-uttar-pradesh-arrest-10-men-under-new-anti-conversion-law-idUSKBN28H105 [https://perma.cc/L45J-X3BU].
- ↑ 9
Darrell M. West, Shutting Down the Internet, Brookings Inst. (Feb. 5, 2021), https://www.brookings.edu/blog/techtank/2021/02/05/shutting-down-the-internet/ [https://perma.cc/F7Z5-LRG6]. While a significant portion of India’s population lacks internet access, these shutdowns are still highly detrimental. See Individuals Using the Internet, The World Bank (2019), https://data.worldbank.org/indicator/IT.NET.USER.ZS.
- ↑ 10
International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 [hereinafter ICCPR] (“Everyone shall have the right to . . . freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”).
- ↑ 11
Demographics, Jammu & Kashmir Off. Portal, https://jk.gov.in/jammukashmir/?q=demographics (last visited Feb. 11, 2021).
- ↑ 12
On August 4, 2019, two days before the shutdown, the Indian Parliament voted to revoke Jammu and Kashmir’s autonomy under Article 370 of the Indian Constitution, degrading Jammu and Kashmir to union territory status. The government claimed to pre-empt widespread unrest via the internet shutdown. See Aditya Kalra, Sanjeev Miglani & Danish Ismail, India Scraps Special Status for Kashmir in Step Pakistan Calls Illegal, Reuters (Aug. 5, 2019), https://www.reuters.com/article/us-india-kashmir/india-scraps-special-status-for-kashmir-in-step-pakistan-calls-illegal-idUSKCN1UV0EA [https://perma.cc/WQ38-LYT6].
- ↑ 13
See Kashmir Communications Shutdown a ‘Collective Punishment’ That Must Be Reversed, UN News (Aug. 22, 2019), https://news.un.org/en/story/2019/08/1044741 [https://perma.cc/9UX2-6DGR].
- ↑ 14
See David Kaye et al., UN Rights Experts Urge India to End Communications Shutdown in Kashmir, United Nations Human Rights Off. of the High Comm’r (Aug. 22, 2019), https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24909&LangID=E [https://perma.cc/C8KA-KPQN] (“The shutdown of the internet and telecommunication networks…are inconsistent with the fundamental norms of necessity and proportionality”).
- ↑ 15
See Anuradha Bhasin v. Union of India, AIR 2020 SC 1308 (2019) (India) (holding that an indefinite suspension of the internet was unlawful and contrary to the protection of freedom of expression under the Indian Constitution). This decision gave way to some 2G access but did not obligate the Indian government to end the shutdown in its entirety. Id. See also Zaid Drabu & Aiman Hashmi, SC Judgment on Kashmir’s Internet Shutdown Ignores Both Rights and Remedies, the Wire (Feb. 13, 2020), https://thewire.in/law/sc-internet-shutdown-judgement [https://perma.cc/C5F2-XBQR].
- ↑ 16
See Safwat Zargar, Most of Jammu and Kashmir Still Does Not Have 4G Mobile Internet, Scroll.in (Feb. 5, 2021), https://scroll.in/article/985830/most-of-jammu-and-kashmir-still-does-not-have-4g-mobile-internet-broadband-is-growing [https://perma.cc/8N4L-GD2M]. See also Manish Singh, India Restores Social Media Access in Kashmir for 2 Weeks, Techcrunch (Mar. 4, 2020), https://techcrunch.com/2020/03/04/india-restores-social-media-access-in-kashmir-for-2-weeks/ [https://perma.cc/5MFV-JC9V].
- ↑ 17
David Kaye (Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression) et al., U.N. Doc. AL. INC 8/2020 (May 12, 2020), https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25237 [https://perma.cc/SG6T-S4XS](reminding India of its obligations under Art. 19 of the ICCPR); See also Bilal Kuchay, ‘Brazen Attack’: Outrage over Kashmir Police Probing Journalists, Al Jazeera, https://www.aljazeera.com/news/2020/4/22/brazen-attack-outrage-over-kashmir-police-probing-journalists [https://perma.cc/4XVK-EC95]; Tariq Mir, Opinion, India is Using the Pandemic to Intensify its Crackdown in Kashmir, Wash. Post (Apr. 30, 2020), https://www.washingtonpost.com/opinions/2020/04/30/india-is-using-pandemic-intensify-its-crackdown-kashmir/ [https://perma.cc/RK57-AVJN].
- ↑ 18
See Aditya Chunduru, 4G Services Being Restored in Jammu and Kashmir: Indian Govt Official, Medianama (Feb. 5, 2021), https://www.medianama.com/2021/02/223-4g-services-being-restored-in-jammu-and-kashmir/ [https://perma.cc/U8GJ-EGBU].
- ↑ 19
See Devjyot Ghoshal, India’s Parliament Passes Citizenship Law, Protests Flare, Reuters (Dec. 11, 2019), https://www.reuters.com/article/us-india-citizenship/indias-parliament-passes-citizenship-law-protests-flare-idUSKBN1YF0QI [https://perma.cc/P9ZL-9ERX].
- ↑ 20
Id. The Citizenship Amendment Act closely preceded the National Registry, which rendered approximately two million Muslims stateless in the state of Assam. See Karan Deep Singh & Suhasini Raj, ‘Muslims Are Foreigners’: Inside India’s Campaign to Decide Who Is a Citizen, N.Y. Times (Apr. 4, 2020), https://www.nytimes.com/2020/04/04/world/asia/india-modi-citizenship-muslims-assam.html [https://perma.cc/Z3RR-QLP9].
- ↑ 21
See Ghoshal, supra note 19.
- ↑ 22
India is the only democracy to regularly resort to internet shutdowns. This time, the government also halted SMS services. See Sankalp Phartiyal & Neha Dasgupta, India Widens Internet Shutdown to Parts of Delhi to Curb Protests, Reuters (Dec. 19, 2019), https://www.reuters.com/article/us-india-citizenship-mobile-services/india-widens-internet-shutdown-to-parts-of-delhi-to-curb-protests-idUSKBN1YN0MX [https://perma.cc/E55D-SRTB].
- ↑ 23
Some sources reported on police forcing journalists to delete photos from their phones. See Scroll Staff, Delhi Violence: Toll Rises to 13 as Rampage Continues, Scroll.In (Feb. 25, 2020, 10:00 AM), https://scroll.in/latest/954244/delhi-violence-fresh-stone-pelting-reported-toll-is-five-as-kejriwal-calls-for-peace [https://perma.cc/QHX6-8NTP].
- ↑ 24
See Mujib Mashal et al., Why Are Farmers Protesting in India?, N.Y. Times (Jan. 27, 2021), https://www.nytimes.com/2021/01/27/world/asia/india-farmer-protest.html [https://perma.cc/7UCC-P254].
- ↑ 25
See Mayank Bhardwaj & Manoj Kumar, Sikh Diaspora Drums Up Global Support for Farmers’ Protest in India, Reuters (Dec. 18, 2020), https://www.reuters.com/article/india-farms-protests-diaspora/sikh-diaspora-drums-up-global-support-for-farmers-protest-in-india-idUSKBN28S0Y6 [https://perma.cc/4LYQ-ECT3].
- ↑ 26
Eisha Mitra & Julia Hollingsworth, India Cuts Internet Around New Delhi as Protesting Farmers Clash with Police, CNN (Feb. 3, 2021), https://www.cnn.com/2021/02/01/asia/india-internet-cut-farmers-intl-hnk/index.html [https://perma.cc/ANW4-CS6K].
- ↑ 27
Anushree Fadnavis & Mayanak Bhardwaj, India’s Haryana State Blocks Internet After Clashes at Farmers’ Protest, Reuters (Jan. 29, 2021), https://www.reuters.com/article/us-india-farms-protests/indias-haryana-state-blocks-internet-after-clashes-at-farmers-protest-idUSKBN29Y0LU [https://perma.cc/T2SG-TL5T].
- ↑ 28
Human Rights Watch, India: Journalists Covering Farmer Protests Charged (Feb. 2, 2021), https://www.hrw.org/news/2021/02/02/india-journalists-covering-farmer-protests-charged [https://perma.cc/UDB8-DRXY] (“Indian authorities’ response to protests has focused on discrediting peaceful protesters, harassing critics of the government, and prosecuting those reporting”).
- ↑ 29
See Shira Ovide, Twitter vs. India, N.Y. Times (Feb. 11, 2021), https://www.nytimes.com/2021/02/11/technology/twitter-vs-india.html [https://perma.cc/5JPR-2STP]. See also Rajat Gupta, India Farmers’ Protests: Internet Shutdown Highlights Modi’s Record of Stifling Dissent, The Conversation (Feb. 1, 2021, 7:51AM), https://theconversation.com/india-farmers-protests-internet-shutdown-highlights-modis-record-of-stifling-digital-dissent-154287 [https://perma.cc/K83Y-5MMS].
- ↑ 30
U.N. General Assembly, Candidature of India to the Human Rights Council, 2019-2021, U.N. Doc. A/73/394 (Aug. 29, 2018).
- ↑ 31
See ICCPR, supra note 10.
- ↑ 32
Id. at art. 19, ¶ 2.
- ↑ 33
See Hum. Rts. Comm., General Comment No. 34, U.N. Doc. CCPR/C/GC/34, ¶¶ 5, 9 (Sept. 12, 2011) [hereinafter G.C. 34] (“Paragraph 1 of article 19 requires protection of the right to hold opinions without interference. This is a right to which the Covenant permits no exception or restriction.”).
- ↑ 34
Id. at ¶ 22. See also ICCPR, supra note 10, at art. 19 ¶ 3.
- ↑ 35
G.C. 34, supra note 33, at ¶43. See also Human Rights Council Res. 32/13, U.N. Doc. A/HRC/32/L.20, ¶ 10 (July 1, 2016) (“[the HRC] condemns unequivocally measures to intentionally prevent or disrupt access to or dissemination of information online in violation of international human rights law, and calls upon all States to refrain from and cease such measures.”).
- ↑ 36
See ICCPR, supra note 10, at art. 19 ¶ 3. India could also cite its reservations to the ICCPR: application of Article 19 has to be in comportment with the Indian Constitution, which provides broad exceptions to the freedom of expression, including for the integrity of the country, national security, and morality. Compare Chapter IV Human Rights: 4. International Covenant on Civil and Political Rights, United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en [https://perma.cc/4YUS-SBU6] (last visited Feb. 11, 2021); with India Const. art. 19, cl. 1(a).
- ↑ 37
The government’s actions also implicate the human rights of peaceable assembly and freedom from arbitrary arrest. See ICCPR, supra note 10, at arts. 9, 21.
- ↑ 38
See Kaye, supra note 17.
- ↑ 39
Human Rights Council, Working Group on the Universal Periodic Review, India, U.N. Doc. A/HRC/WG.6/27/IND/1, ¶ 53 (May 12, 2017) (“India recognizes the importance of extending free speech guarantees to activities on the internet . . . [while also] recognizing the potential for misuse of the internet forinciting violence, spreading rumours and hatred or committing other illegal activities”).
- ↑ 40
See Chapter IV Human Rights: 5. Optional Protocol to the International Covenant on Civil and Political Rights, United Nations Treaty Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-5&chapter=4&clang=_en [https://perma.cc/V52F-WL55] (last visited Feb. 11, 2021).
- ↑ 41
- ↑ 42
See West, supra note 9.
- ↑ 43
A change may be in the wind with the Biden administration. See Archana Chaudhary, U.S. Criticizes India Internet Curbs, Urges Fresh Farm Talks, Bloomberg (Feb. 4, 2021, 12:31 AM), https://www.bloomberg.com/news/articles/2021-02-04/u-s-criticizes-india-s-internet-curbs-urges-fresh-farm-talks [https://perma.cc/8A83-RNDG].