Though the Indian Constitution reflects the classical rationales of free speech, the state has time and again punished thought and suppressed ideas.
Plutarch's Life of Dion contains an interesting anecdote of Dionysius, an avowed and established tyrant, killing his captain, Marsyas. Marsyas had dreamt of cutting Dionysius's throat, and Dionysius killed Marsyas on account of his dream. He based his decision on the assumption that Marsyas would not have dreamt of such a thing by night if he had not thought of it by day.
In his seminal work The Spirit of Laws, Montesquieu picks up this story to reason that Dionysius's was a most tyrannical action; for, though cutting Dionysius's throat had been the subject of Marsyas's thoughts, he had made no attempt towards it. “The laws do not take upon them to punish any other than overt acts. The thought must be joined with some sort of action”, concluded Montesquieu.
It can safely be said that Montesquieu's words are completely lost on the Indian state, and it has time and again assumed the character of a present-day Dionysius by punishing mere thoughts. The latest Dionysius is the Tamil Nadu State government, which has banned the screening of the movie Dam 999 in the State.
Dam 999 is apparently a love story set against the backdrop of the Mullaperiyar dam controversy. The Tamil Nadu government has banned the screening of the movie on the ground that it might lead to public order problems in the State. This amounts to suppression of ideas that supposedly pose a threat to public order.
It must be emphasised that there is a difference between goading people to resort to violence and expressing a view on the dam controversy. The former is an overt act the government can rightfully prohibit. The latter is the communication of an idea, which the government must not proscribe. The common view in India is that any communication having a tendency to lead to violence can be suppressed. This in turn enables the government to suppress any idea.
Indeed, the history of independent India is replete with examples of the government curbing free speech: We were the first country to ban Salman Rushdie's book, The Satanic Verses; Rohinton Mistry's Such A Long Journey was dropped by the Mumbai University from its syllabus; Delhi University did the same with A.K. Ramanujan's essay Three Hundred Ramayanas; makers of the movie Rockstar were forced to blur the Tibetan flag in the “Sadda Haq” song; and movies like Deshdrohi, Bandit Queen, Da Vinci Code, Fire and many others have been banned by State governments. These examples are just the tip of the iceberg, and there are numerous other instances where the government has chilled speech in the country.
Why is this so? One major reason is that governments act without an understanding of the underlying rationale of free speech. They act without knowing why a country like India needs to grant effective protection to freedom of speech.
Broadly speaking, there are three main rationales for protection of freedom of speech, which are also reflected in the vision with which our Constitution was drafted.
The first is the self government rationale, which provides that it is indispensable to protect free speech for a robust democratic process. Protection of free speech is essential for people to communicate on political matters, which in turn enables them to fully participate in democratic affairs. This rationale, though identified with the work of Alexander Meiklejohn, was first enunciated by Justice Brandeis of the U.S. Supreme Court in Whitney v. California.
The second rationale is fashioned on laissez faire in the economic realm and conceives that, in a marketplace of ideas, the better ideas eventually prevail through competition. Under this marketplace of ideas rationale, all kinds of speech are permitted on the understanding that ruinous speech will fail the market assessment test, and will eventually be discarded. This justification for free speech is that it is essential in a society's search for truth, which will ultimately emerge after a competition of all ideas in the marketplace. In the words of Justice Holmes of the U.S. Supreme Court, “the best test of truth is the power of the thought to get itself accepted in the competition of the market” (Abrams v. United States).
The last rationale treats freedom of speech as promotion of every individual's self-fulfillment and autonomy. This rationale posits that protection of free speech is essential for human identity. To be fully human, it is essential to protect thoughts.
Fascinatingly, the classical rationales for free speech are also reflected in the theoretical underpinnings of the Indian Constitution. Glanville Austin, in his exposition on the Indian Constitution (Working A Democratic Constitution, The Indian Experience), indicates that the core vision of the Indian Constitution can be summed up as having the following foundational strands: (i) protecting national unity and establishing the institutions and spirit of democracy; and (ii) fostering a social revolution to better the lot of Indians.
The spirit of democracy can be strengthened if citizens are able to fully participate in democratic affairs (self government rationale). Similarly, for fostering a social revolution and to improve the lot of Indians, it is necessary that the society engages itself in the pursuit of truth, and all citizens be given every opportunity to realise their potential (self-fulfillment and autonomy). These rationales for free speech thus represent an important resource in our constitutional tradition — a resource that the Indian state keeps ignoring at its own peril.
Thus, if India has to evolve, a better understanding of our constitutional traditions is a must. And if anti-speech acts persist, it reflects nothing but the Dionysius nature of the Indian state.
(Karan Singh Tyagi is an associate attorney with an international law firm in Paris and graduate of the LL.M. programme at Harvard Law School.)