Should restrictions on free speech be reviewed?

There is perhaps ground to create a new jurisprudence of cumulative incitement

January 31, 2020 12:15 am | Updated 12:10 pm IST

Picture used for representational purpose only.

Picture used for representational purpose only.

Political discourse in India today seems to invite the full gamut of safeguards and restrictions on free speech that the Constitution prescribes. Quite often, these are misused, and deciding on a case-by- case basis is problematic. Jayant Sriram speaks to Abhinav Chandrachud (author and Bombay High Court advocate) and Mihira Sood (Supreme Court lawyer) on whether the laws governing freedom of speech and expression in India need to be opened up. Edited excerpts:

Recently, there have been many instances that have stretched the envelope of what we define as freedom of expression. On the one hand, we have FIRs being filed against students for chanting ‘azadi’. On the other, we have political leaders giving hate speeches. Freedom of expression enshrined under Article 19 (1) of the Constitution is not an absolute right; it comes with safeguards outlined under Article 19 (2). So, Abhinav, should these safeguards come under review?

Abhinav Chandrachud: The Constitution was at its heart also a historical document. The historical context for the enactment of the Constitution was the Partition of the country, and the large-scale communal rioting that took place as a consequence. So, it was in that context that the Constitution was being debated, that the First Amendment to the Constitution was enacted. Interestingly, the First Amendment to the American Constitution is the amendment that creates the right to freedom of speech in the U.S., whereas the First Amendment to the Indian Constitution introduced various additional restrictions to the right to free speech, while also making those restrictions subject to the test of reasonableness.

But the question you ask is a very interesting one because the conditions that prevailed at the time of Partition and at the time of enactment of the Constitution no longer exists. So, what the framers were worried about — things like communal rioting in a charged environment, an environment that was created and brought about by the influx of a large number of refugees in India — those circumstances no longer exist today. So today, if you look at the judgement in the Shreya Singhal case (2015), it is a really interesting judgment where he [Justice Rohinton Fali Nariman] says we have to adopt the test that was used by the U.S. Supreme Court in the Brandenburg case (1969), where the distinction between advocacy and incitement was really highlighted. The difference between advocating a certain point of view and inciting somebody to take up arms against the government or something like that — that’s when your speech isn’t really afforded any protection.

Mihira Sood: The Constitution was enacted at a time of great insecurity in the country. It is a document of nation-building at a time when we were insecure about whether or not this project, this experiment of ours as a nation, would succeed; whether we would come together as a nation state. So, to be relying on those insecurities today, I think, does a disservice to the intention that the framers of the Constitution had.


And earlier you had perhaps a very clear distinction between political speech and the kind of restrictions on political speech, whether it’s public order or sedition, or speech that was related to or offensive to anybody’s religious sentiments. And you had different kinds of jurisprudence on both of them, but I think today, with the kind of campaigning that the government is doing and the kind of vote bank that it appears to be catering to, you have a situation where speech pertaining to religion and causing offence to religion is actually conflated with political speech and I think that is taking us into very new and uncharted territories as far as freedom of speech is concerned.

So, how do you think we should view the Home Minister’s recent statement that people should “push the button so hard that the shock is felt in Shaheen Bagh”? Does it cross a threshold beyond which we say this is unacceptable or should we learn to be okay with it?

Abhinav Chandrachud: I don’t want to comment on any statement made by any particular individual. But I think that the test which you asked for — I would like to frame it in terms of the great test that was used by a judge called Oliver Wendell Holmes of the U.S. Supreme Court. It was that the greatest protection of free speech will not protect a man who falsely shouts fire in a crowded theatre. Now a person who falsely shouts fire in a crowded theatre immediately induces panic with his words. In other words, you can’t argue with the man who shouts fire in a crowded theatre. But if there is some scope for argument, then no matter how inflammatory, I think that speech should be allowed. So that brings us back to the test that Justice Nariman articulated. So long as you’re able to debate and discuss with each other, then, really, there’s no reason to prevent a person from saying what he wants, even though you might not find that speech to be palatable.

Mihira Sood: As I said before, I think we are in uncharted territory here. I agree with everything that Abhinav said in terms of whether or not something can be debated, and that should be the test. However, we are also in a situation where it’s a very one-sided debate. One side controls a lot of the media and controls a lot of public expenditure on advertisements and things like that. And in that situation, to what extent these rules apply is not something I’m very sure of. And when it comes to a statement like the Home Minister’s pertaining to Shaheen Bagh, or others of this nature, I don’t think the framers of the Constitution, even when they were talking about the offence to religious sentiments or other restrictions, really anticipated what we are seeing in some of these speeches today. Which is the speech of dog whistles, coded speech that is not by itself threatening or offensive or doesn’t even necessarily pertain to a specified community. Though everyone knows exactly what is being referred to. And the question of incitement again becomes very complicated because when you keep making such a speech, you keep referring insidiously to a particular community, I wonder if that is a ground to create a new jurisprudence of cumulative incitement, not so much directly by particular words, but by building it up over a period of time. That’s something that that we need to think about.

Abhinav Chandrachud: At some level you are right. The test should be, can you debate with somebody? But at the same time, that draws us into the very tricky issue of hate speech. Because what is it that laws that prevent hate speech are designed to do really? They’re designed to prevent the dehumanisation of an entire community or an entire people. Because at the end of the day, that’s really what happened in a place like Nazi Germany, right? We have to ask ourselves as a society, as a community, as a country, as a nation whether we really want to allow hate speech. The U.S. model, for instance, allows everything. So even Nazi protests are permitted in the U.S., or you are allowed to use words that are highly loaded like the ‘N’ word, whereas in India, we’ve got the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, which prevents hurtful speech. So, we’re somewhat like the European model, which says that hate speech won’t be tolerated even though it may have put a dampener on debate, discussion and dissent.

Mihira Sood: Another interesting and relevant aspect to this is the argument of speech that punches down rather than punches up. Which is to say that in defining hate speech or defining what kind of speech can be permitted or not permitted, one really relevant test is to look at whether that speech is addressing or attacking a community that is oppressed, or a community that is dominant. And who is making that speech and who is it addressed to and whether we want that kind of relativism in our assessment of what kind of speech should be allowed because surely there is a difference between speech being made from a dominant, or perhaps even an oppressive, community directed downwards, and subversive speech that is coming up from the most oppressed communities.

One of the areas in which the U.S. contrasts with India the most is political satire on comedy shows. Comedy shows are one of the ways in which people know about things that are happening with U.S. politics. India, on the other hand, seems to be going down this route where everyone is extremely quick to take offence to any humour on politics or on a community and demand that defenders be brought to book. Would it help to have a more humorous conversation about politics sometimes?

Abhinav Chandrachud: A large amount of the trouble with our laws that concern speech and expression is that these laws are criminal laws. Let’s take the example of sedition. Let’s assume that you are a stand-up comic and that you make fun of somebody who’s in a position of power. What the police in the state in which you’re located has the power to do now is to register an FIR against you knowing fully well that it’s not sedition. Sedition is when you invite people to take up arms against the government or violently overthrow the government. So, if you want to do a stand-up routine, even though everybody really knows what the law of sedition is, you’re going to think 10 times before making fun of a person in power.

Mihira Sood: I think more so in the current environment where you have a government that tries to polarise public discourse on the basis of national and anti-national, and you’re creating a situation where the sedition section is going to come into full force. So, we need to also be aware that free speech restrictions don’t just come from legislation on behalf of the government, we also need to understand, down to the lowest level of our law enforcement and judiciary, the concept of what is the chilling effect and how that is inimical to our democracy.

What would be the kind of action that would occasion a broader debate on the issues of the type we are having now? Can this be through the courts or Parliament?

Abhinav Chandrachud: I’m not a big fan of lawmaking by courts. At some level, if an actual litigant is not before the court, it becomes hard for a court to commiserate with the plight of the individual in the facts and circumstances of a particular case. Bear in mind that when Parliament legislates, if there is mistake, we can go to a court and we can say this is unconstitutional. But when the court legislates, if there’s something in that legislation that somebody wants to challenge, there’s no real option.

Mihira Sood: As disheartening as it may sound we don’t really have an option but to wait for Parliament to want to do something about this. But I do agree that the Supreme Court certainly should not be in the business of lawmaking. So I think it’s really just a question of waiting for better politics in this country.

Abhinav Chandrachud is an advocate at the Bombay High Court; Mihira Sood is a Supreme Court lawyer

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