The ‘reasonable’ man vs. the ‘hypersensitive’ man

The Supreme Court's overriding concern, over the years, has been that free speech should not affect communal harmony

Updated - December 04, 2021 11:17 pm IST

Published - January 18, 2015 12:10 am IST

Time and again, the constitutional courts have interpreted what a “reasonable man” is — “an ordinary man of common sense and prudence and not an out-of-ordinary or hypersensitive man.”  Illustration: Deepak Harichandran

Time and again, the constitutional courts have interpreted what a “reasonable man” is — “an ordinary man of common sense and prudence and not an out-of-ordinary or hypersensitive man.” Illustration: Deepak Harichandran

In India, the fundamental right to free speech and expression is subject to the mercy and intellect of the “reasonable” man. It is not an absolute right, unlike in the West, but restricted and measured by the ambiguous scales of public order, decency and morality of men, their elected representatives and judges.

The Constitution makers have left it open for the courts to interpret, by the standards of reasonable men, if an expression is art, literature, satire, insult, ridicule or offence.

Time and again, the constitutional courts have interpreted what a “reasonable man” is — “an ordinary man of common sense and prudence and not an out-of-ordinary or hypersensitive man.”

The Constituent Assembly debates were not without extensive discussions about imposing reasonable restrictions on the fundamental rights of freedom.

While some of the founding fathers felt that by imposing restrictions, they were taking away with “one or five hands” what they gave to the citizens with the other, their compatriots justified that a reasonable fetter on “Rights of Freedom” will not “destroy the liberties of the people.”

The wounds of Partition were still fresh, the people had seen the rise and fall of Fascism in Europe — this fledgling, multi-religious country could just not afford another instant of communal disharmony. Shackling free speech was just a small price to pay to ensure that, or so they thought.

One of them, Algu Rai Shastri, felt that “freedom by its very nature implies limitations and restrictions.”

“The dancer dances to the measure of clapping. The poet is bound by the significance of words. A dancer dances according to certain fixed timings and never makes a false movement. His movements are in harmony with the tal. When a nation or a community attains freedom, it begins to bear a great responsibility on its shoulders. We cannot, therefore, say that the restrictions that have been imposed will retard our progress. Good citizenship implies restrictions,” Shastri argued in the Constituent Assembly.

But Amiyo Kumar Ghosh struck a cautionary tone against imposing reasonable restrictions. He felt the checks “should be very precise, clear and not couched in ambiguous language and left to the courts for decisions.” He thought how it would take “centuries” for the Supreme Court to exactly say what words like reasonable restrictions in the “interests of general public” or “public order” meant.

Ghosh voiced apprehension about the “wide powers” such vagueness would leave in the hands of the Legislature.

So the right to freedom of speech and expression guaranteed in Article 19 (1) (a) escaped the ambiguity of “reasonable restrictions” and remained unfettered for 15 months of the working of the Constitution until the Constitution (First Amendment) Act, 1951 was passed.

The 1951 Act modified free speech and expression and made it subject to reasonable restrictions of Article 19 (2) to preserve public order, decency and morality.

In his introduction to the First Amendment, Prime Minister Jawaharlal Nehru explained why it was imperative to modify the right to free speech and expression in the “interests of the general public.”

“During the last 15 months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements especially in regard to the chapter on fundamental rights. The citizen’s right to freedom of speech and expression guaranteed by Article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence,” Nehru said.

With this, free speech and expression was again left open to the “reasonableness” of the judges and legislators.

The trust placed in modern-day legislators by Constituent Assembly members like K. Hanumanthaiya is being increasingly tested in recent times. Hanumanthaiya supported reasonable limits on the belief that legislators, as representatives of the people, would tolerate only such restrictions that would be in the interest of the people.

The ongoing hearing of the Shreya Singhal vs. Union of India case in the Supreme Court is an example of how his trust in legislators may have been misplaced. In his arguments in the case, civil rights lawyer Prashant Bhushan details the “chilling effect” Section 66A of the Information Technology Act, 2000 has on free expression.

He narrated how two girls, Shaheen Dhada and Rinu Shrinivasan, based in Thane district of Maharashtra were arrested under the Act for allegedly posting and ‘liking’ a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death on their Facebook accounts.

Over the decades, the courts have given mixed signals while struggling to strike a balance between free speech and restrictions on it.

In March 2014, a Bench led by the then Chief Justice of India, R.M. Lodha, dismissed a plea by advocate M.L. Sharma for a direction to curb hate speeches.

“We cannot curtail the fundamental rights of people,” Chief Justice Lodha had said. “It is a precious right guaranteed by the Constitution. We are a mature democracy and it is for the public to decide.”

This when only a year earlier another Bench led by one of his predecessors, Chief Justice Altamas Kabir, had issued notice to the Election Commission on a public interest litigation petition by Pravasi Bhalai Sangathan to curb leaders from delivering hate speeches.

In 1957, in Ramji Lal Modi vs State of Uttar Pradesh , a five-judge Bench headed by the then Chief Justice of India, S.R. Das, fortified Section 295A of the Indian Penal Code (blasphemy law), a British-regime law, against the right to free speech.

“It (Section 295A) only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of a class of citizens,” the judgment observed.

In State of Karnataka vs. Praveen Bhai Thogadia of 2004, the Supreme Court said whether a person had “malicious intention” to insult another’s religion can be fathomed from his past conduct.

In the S. Rangarajan case, the court observed that the right to restrict free expression should be exercised only if it acted like a “spark to a power keg” and not if the “anticipated danger is remote, conjectural or far-fetched.”

The Supreme Court’s overriding concern, over the years, has been that free speech should not affect communal harmony. The ground rule has been that religious harmony cannot be sacrificed at the altar of free expression.

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