Freedom from fear is the freedom
I claim for you my motherland!
Freedom from the burden of the ages,
Bending your head,
Breaking your back,
Blinding your eyes to the beckoning
Call of the future
- Rabindranath Tagore
>Independence Day provides an ideal platform to reflect on the questions of >freedom of expression and accountability. It would be hurtful and detrimental to our democratic fabric if any one tries to subvert freedom of expression, by extension freedom of the press, under the cloak of accountability. If media organisations fail to respect and adhere to the principles of accountability, the freedom of expression vested in them would be bereft of any democratic import. To find the fine balance, as an act of conciliation and not as an act of compromise, there should be a collective effort from multiple quarters where the boundaries are respected, overreach is shunned and institutional arrangements are strengthened. It is disturbing to witness — of late — some words which have precise meaning and had a grievous impact on our democratic polity such as Emergency used lightly.
Can we permit the issues of Fundamental Rights to become a pawn in the hands of competitive politics? It is fair for the citizenry to expect that their representatives in power would learn from the past mistakes, and not cite bad precedents as excuse to repeat them with impunity. How does one answer that seemingly innocent question: why does the media oppose an issue of a show cause notice to a media house or a journalist, and, not wait till the law completes its own course? They cite various judgments of the Supreme Court that upheld the freedom of expression: the Rajagopal vs. State of Tamil Nadu case that protected journalism from being subjected to pre-censorship, the Union of India & Cricket Association of Bengal case that secured airwaves as public property, and, the S. Rangarajan vs P. Jagjivan Ram case that categorically said freedom of expression which is legitimate and constitutionally protected cannot be held to ransom by an intolerant group of people, among others.
While media practitioners are confident of the apex court’s interpretation of laws in favour of reasonable freedom, they are also acutely aware that in cases of protracted legal proceedings the process is the punishment. There are reasons for raising the voices of protest at the very instance of issuance of intrusive, blatantly outrageous show cause notices as in the case of the recent notices to three television channels by the >Information and Broadcasting Ministry. They are: the toll it takes in terms of human and capital resources, the debilitating effect it has on the morale of journalists and their immediate families, and its power to become an implicit mode of censorship and stifle articulation.
Hate speech vs. free speech Media practitioners, like every other liberal democrat, wrestle daily with the vexatious question: how to deal with hate speech without undermining free speech. One of the finest legal minds in India, Rajiv Dhavan, asked some pertinent questions in his book, Publish and be damned : “The dilemma of the liberal democrat is acute. If free speech is to be defended at all costs, then when, if ever, is the cost too high? Can free speech be used intentionally as a bomb to trigger self-destructive fury in society, which then tears itself apart? Under these circumstances, can the ‘free speaker’ claim that he/she is entitled to the full protection of the right to free speech, irrespective of the consequences of his/her speech acts even where he might have consciously intended the incitement?”
There are no readymade answers. It requires collective effort from individuals, media practitioners, legal experts, judicial bodies, political leadership and an institutional framework that is committed to the ethos of democratic rights and principles. The fairness of the process demands that no authority is permitted to cherry pick and prosecute one set of voices while condoning blatant violations of those that are perceived to be closer to the regime. The idea of reasonable restriction should pass the test of ‘clear and present danger’ and not in a manner that smacks of vengeance. It is for the executive and political leadership to ensure that coercive mobilisation of illiberal voices does not infringe upon the other voices.
One of the expectations of media practitioners to ensure that their constitutionally guaranteed rights are protected from onslaughts from various quarters — political, coercive social mobilisation on the basis of caste, religion and language, state and executive — is to have a much better judicial process where the lower courts imbibe the finer principles laid out by the Supreme Court of India. It is in this context that the batch of petitions seeking decriminalisation of defamation filed by a truly diverse group of leaders — Subramanian Swamy, Arvind Kejriwal and Rahul Gandhi — before the Supreme Court assumes significance. These political leaders of differing ideologies argue that criminal defamation under Sections 499, 500 IPC has a chilling effect on free speech.
In the course of hearing these petitions, the apex court has already made some important observations. It said the current practice of multiple criminal cases being filed in different parts of the country against a person for allegedly making a defamatory statement must be put an end to. The bench observed: “There should be one complaint for collection of people. The group should take a collective decision on who should file the case. A person cannot be forced to face multiple cases for one offence. Something needs to be done.” As India turns 68, one hopes the detrimental colonial inheritance in the form of Section 499 and 500 IPC will give way to a more inclusive legal regime.
readerseditor@thehindu.co.in
