Freedom and the big freeze

Two terms that keep creeping into civil society reports on the India of our times are “chilling effect” and “shrinking civic space”.

Chilling effect is defined as the deterring of free speech through government laws and actions that appear to target free expression. The term goes back to the 1960s and to jurisprudence in the United States, which was coming out of what was called McCarthyism. This was a phase in which individuals were labelled as traitors by elements in the State in a similar fashion to what is happening here today.

“Civic space” is, apart from freedom of expression, the freedom of association and assembly. Meaning the ability of organisations outside of government (NGOs) to function freely. The reason these terms keep creeping into reports is that the State is taking actions that are causing these effects.

In 2020, The South Asia Collective put out its annual report on the state of minorities in South Asia. In the India chapter it said that Enforcement Directorate and Central Bureau of Investigation raids on the Lawyers’ Collective, Centre for Justice and Peace, and other groups “have the intended chilling effect on the rest of civil society, besides the effect they have on the NGOs and activists in question.”

In May 2022, the media watchdog, Reporters Without Borders, said that the Indian government “perpetuates an environment of surveillance impunity that results in a chilling effect on free speech and media freedoms.”

In September 2021, Civicus, the global alliance of NGOs, put out a statement saying: “The authorities must halt its harassment of human rights activist Harsh Mander. These actions conducted by the Enforcement Directorate are a clear tactic to intimidate and criminalise the defender. It also creates a chilling effect on government critics and is a strategy to force many to self-censorship.”

Yamini Mishra, the South Asia director of Amnesty International (whose chair I am in India), said this in September 2022 about “surveys” conducted by the Income Tax department on Oxfam India, a media foundation that supports among other firms, The Wire, and the Centre for policy research: “The raids are clearly a heavy-handed attempt by the government to instil fear among the staff, supporters and funders of these organisations, and to impose a chilling effect to silence civil society at large.”

There are other instances but this is just to illustrate to the reader the frequency with which the terms are being used. Let us have a look at how chilling effect works in the real world.

One feels as an individual that one can say some things without getting into trouble. In the age of social media what these things are become apparent rather quickly because the pushback is immediate. Then, one is aware of things that one believes are true but saying them will get one into trouble. What sort of trouble? The filing of criminal cases, not just by the State but also individuals who register FIRs; abuse and hatred on social and other media; violence by mobs that are not controllable by the State, even if it wants to control them.

Illustration: Binay Sinha

When it becomes clear that criticism is difficult without trouble, the circle of one’s freedom of expression shrinks. What can be said without the worry of getting into trouble reduces in scope and intensity. I censor myself: Chilling effect.

Action, especially harsh and intimidatory action, against critics and dissenters acts as a deterrent. It stops others from saying the same thing, and it gives pause to those who want to say something, but are now concerned about the fallout against them. This is usually the hallmark of dictatorships: The United Nations High Commissioner for Human Rights in a report a couple of months ago circled Mali, a military dictatorship and Thailand, as having shrinking civic spaces.

In India, the media has for the most part not required intimidation. The reliance on government for licences and advertising, the popularity of the government’s majoritarian ideology and the ownership of large swathes of media by corporate interests have meant that it has toed the line quite enthusiastically.

Independent and foreign media has not followed suit and has required attention, and recent events show that what has been happening over the past few years continues and is part of a pattern.

The interesting question is: What happens in a space where the chilling effect has taken place, as I believe it has in our country? What happens when self-censorship hardens the margins of what can be said, till a time is reached, and perhaps we are there now, when criticism is seen as unacceptable and, therefore, it is not offered? In other democracies, the media tends to rally around organs and journalists who are under attack. Here we are seeing something of the opposite: Coverage by the mainstream media and, especially the influential television media, is marked by an attack on the victim of the raid. In the absence of solidarity, even on such a fundamental principle, the space to speak up reduces further and the urge to keep quiet intensifies.

The other interesting thing is the effect that it has or has already had on society. When a major corporate scandal breaks and plays itself out in the markets daily but the story of the day is the raid on a news organisation, what does that tell us about the audience? It tells us that the audience is unconcerned by such things as shrinking spaces and chilling effects or, and this is more likely, that these are acceptable and perhaps even preferred.

The writer is chair of Amnesty International India