How free can free speech be?

A decade ago, Tamil Nadu was as agog about a looming threat to freedom of speech and a pervasive atmosphere of intolerance as the entire country is at the moment. Assorted groups of Tamil nationalists, protectors and preservers of Tamil culture were policing the opinions of public figures, especially from the film industry. Open threats, street demonstrations and waving of footwear and broomsticks indicated that supposedly offended Tamil society was out to protect its culture from prurient attacks. Actor Khushboo was one of the main targets after she made some remarks in a magazine interview on the prevalence of premarital sex. Nearly two dozen criminal cases were filed across Tamil Nadu by offended complainants charging her with obscenity. The final outcome in her favour in the Supreme Court five years later was a landmark decision on obscenity law.

Reasonable restrictions

Shortly after the controversy broke out in 2005, a public opinion forum for the free exchange of views and ideas was launched in the State, with a rider that the forum’s promoters themselves would not privilege one view over another, and there was no founding philosophy except a general commitment to freedom of expression. “There is no collective policy for the forum, and it will not even publicly defend freedom of expression, as its users need not necessarily be only those who believe in free speech,” they said. It was quite an interesting way to promote freedom of expression — by acknowledging individual autonomy to the point of not expecting its users to even believe in that very freedom.

Does the state acknowledge such autonomy among its citizens and repose faith in them to make their own choices regarding speeches, writings, works of art, films and plays? Obviously not, given the number of “reasonable restrictions” that are placed on free speech in India, many of them reflecting an official philosophy that believes that the government alone can, or at least has a duty to, decide what is ‘good’ for the people. Hence, the many restrictions on expression based on, among other grounds, public order, decency and morality. Gautam Bhatia would classify such curbs as instances of ‘legal paternalism’ or ‘legal moralism’. For, according to this author of a lucid and detailed examination of the law of free speech in India ( Offend, Shock, or Disturb: Free Speech under the Indian Constitution, Oxford University Press, Rs.750), Indian freespeech jurisprudence has two broad approaches — ‘moral-paternalistic’, a view that sees people as inherently corruptible and prone to violence and who cannot be trusted with too much freedom, and ‘liberal-autonomous’, an approach that sees people as individuals capable of making decisions on their own lives and one that allows only limited restrictions on what they can speak, see or hear.

Does not our Constitution guarantee all of us freedom of speech and expression? If both freedom and its curtailment are in an everlasting delicate balance, what exactly is our free speech philosophy? If freedom is related to politics and democracy, does it come under political philosophy? Or is it moral philosophy concerning the individual and the human self? “We need a theory, or theories of free speech,” says Bhatia. The theoretical framework for his analysis of the evolution of free speech jurisprudence covers a vast expanse. Free speech is a means to the truth; a pursuit of individual self-fulfilment and an important means by which democratic self-governance is made possible, he argues. Its role in personal, social and political life inevitably brings it into conflict with the state, with diverse shades of opinions in the marketplace of ideas and the ways in which free expression impacts the established order.

The title may suggest that the author is arguing for an extreme view of free speech: as the right to do all that these three verbs encompass, but in actuality he is doing something far more nuanced. He is arguing for ‘constitutionalising’ all forms of speech; that is, making as much of the law speech-protective as possible, and what little is incapable of protection must be curbed only in a manner allowed by the Constitution. To put it differently, if some restrictions are inevitable, their basis should be sought only within the values of the Constitution, or in ‘constitutional morality’, as he puts it, and not in vague appeals to transient notions of social mores, decency and morality. For instance, a restrictive hate speech law or one that seeks to protect an oppressed community from insult need not derive its constitutionality from a mere content-based view of the ‘feeling of hurt’ caused by some words or images. Rather, it could be rooted in a notion of moral equality among citizens, and with reference to women, from the angle of prohibition of gender subordination.

Historical context

Many will be familiar with the basic formulation of free speech in India as a set of freedoms matched by a set of reasonable restrictions. However, not many may know that this was not the original framework. The early judgments on Article 19(1)(a) were too speech-protective for the rulers’ comfort, and the ‘reasonable restrictions’ were introduced through the first amendment. It is equally interesting to learn that one of the grounds for curbing free speech was ‘sedition’ in an early draft, drawing derisive comments from some members of the Constituent Assembly. Sardar Patel, who chaired the Fundamental Rights Sub-Committee, moved for the deletion of the proviso the very next day. However, the word ‘sedition’ made a mysterious comeback in the draft Constitution in 1948. Once again, it required quite a fight from members to get the proviso withdrawn. Thereby hangs a tale of how rulers, colonial or democratic, have always wanted to retain the power to prosecute for sedition.

If one wants to know the working of the law related to dominant free speech issues such as public order, morality, obscenity, film censorship, defamation, sedition, press freedom and Internet curbs, this book will not only provide valuable historical insight, but also the standard tests that courts use to determine the validity of such restrictions. Thus, you can see the shift from the original standard for obscenity of ‘a tendency to deprave or corrupt’ a person susceptible to prurient taste ( Ranjit Udeshi, 1965) to more modern ‘contemporary standards that reflect the sensibilities as well as the tolerance level of the average reasonable person’ ( Khushboo v. Kanniammal, 2010). “... In the long run, such communication prompts a dialogue within society wherein people can choose to either defend or question the existing social mores,” the Supreme Court said, while quashing all the complaints against Khushboo.

Bhatia suggests that applying some of the recent principles in free speech jurisprudence, there is a clear case to strike down the penal section on sedition to cases, as indeed two high courts had done before the Supreme Court upheld Section 124A in 1962. The Punjab and Haryana High Court had applied the classic test of ‘overbreadth’ (a provision so ‘overbroad’ that promoting disaffection is criminalised both when it would lead to a public order breach — a permissible restriction — and when it would not) and held that it was unconstitutional.

The ‘chilling effect’ of excessive curbs such as the threat of exorbitant awards as damages for defamation, the casual resort to a ‘decency or morality’ standard based on a section of public opinion, or succumbing to the threat of violence by a purported offended section of society — popularly called the ‘heckler’s veto’ — are issues that all citizens should familiarise themselves with. For often, what is at stake is not merely the freedom of political activists, writers and journalists alone, but that of every citizen, voter or resident.

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Printable version | Jan 13, 2021 12:54:30 PM |

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