Free speech: Subject to Market Risks

By | March 13, 2020
Free speech Subject to market risks

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Free speech is the most cherished right of any democracy. It is this fundamental right that allows us to speak our minds, have a different opinion and communicate to and criticize our elected representatives who form the government. Communicating with others is key to ensuring the smooth functioning of society. However, at present, this right seems to be under threat. With the current political climate being at the zenith of its volatility, one needs to be extra cautious before expressing an opinion.

A casual glance at the newspaper will reveal how people are being either penalized or incarcerated for expressing opinions that usually are not in line with the popular narrative. But free speech is under threat not only because of misuse of the law by the incumbent but also because of politically and/ or religiously motivated vigilante groups who cannot tolerate anything said about them or against them.

Our judiciary has time and again upheld the principle of free speech as enshrined in our Constitution and pulled up the incumbent for putting an imposition on individuals in the name of being against the interests of the nation-state. While it is essential that we have the freedom to speak our minds, it must be kept in mind that as citizens we too cannot misuse this liberty. There are constitutional limits placed on free speech that we must keep in mind.

There is absolutely no justification for spreading hate and violence in the name of free speech. Free speech does not extend to making discriminatory remarks about any community which legitimizes their oppression and denial of existence. And yet in order to prosper as a democratic republic, it is essential that we have a free and fair press and our right to fearlessly voice our opinions.

Introduction

At the recently concluded 15th Justice PD Desai Memorial Lecture, Justice D. Y. Chandrachud said,

“employment of state machinery to curb dissent instils fear and creates a chilling atmosphere on free speech which     violates the rule of law and detracts from the constitutional vision of a pluralist society”.

Today, students and citizens are being accused of sedition for peacefully protesting against the Citizenship Amendment Act (CAA). School children are being interrogated and a school principal has been arrested for a play that criticises the CAA. Journalists who dare to criticize the government are being silenced by trolling and/ or death threats. These are only a few instances of the daily acts of suppression of free speech by the state in our country.

It is the duty of every state to create spaces conducive for deliberate dialogue and ensure that citizens enjoy the right to express their views including those that go against prevailing laws. Freedom to criticize and challenge those who are actually our representatives elected to the parliament prevent democracies from degenerating into fascist regimes. Citizens should be allowed to express their opinions regarding their elected representatives in ways that go far beyond pushing a button on the electronic voting machine every few years.

However, there is a catch. While there is no justification for the state to curb free speech with a threat of seeking retribution against those who disagree with the popular narrative, we the people must remember that our exercise of free speech has to be within the bounds of the Constitution. No amount of free speech can ever allow a person to shout “Fire” in a cinema hall to strike panic among the viewers.

Without restrictions, free speech allows an individual to indulge in slander, propagation of fake news and distorted history, publishing sexual material about children, revealing state secrets, and so on. When national security is threatened and the lives of children are at risk, many people are prepared to sacrifice freedom of speech to some degree for the sake of other ends.

Anatomy of free speech 

Since speech is biologically a human characteristic, it is indeed part of human nature to communicate. As the members of a society develop their own nature, this would include their actions which necessarily encompassed expressive activity. To develop these qualities without hindrance recognizes that speech must be unhindered. The concept of self advances and the individual comes to form personal ideas creating a situation where individualized communication without governmental hindrance is essential. Democracy is considered to be a superior form of government since it is based on reflection and communication between the citizen and the government, as opposed to passive obedience or submission.

According to Habermas, speech fundamentally aids in the coordination of actions of the majority of individuals allowing society to function without conflict. According to him the social order of modern, secular societies depends on communicative action that entails validity claims and discourse used to forge a consensus that keeps society from falling apart. Therefore free speech is necessary to create a functional society where everyone does not have exactly the same beliefs, ideas, perspectives and experiences.

A Durkheimian perspective of free speech, however, offers a different understanding. Generally, free speech and the laws surrounding it are a function of the type of society that is examined. In primitive societies, everyone was engaged in the same activities leading to the high collective consciousness and shared values and beliefs. ‘An act offended the common consciousness not because it was criminal, but it was criminal because it offended that consciousness.’ However, for the existence and prosperity of a modern industrial state, the right to free speech is essential. Different societies place different values on free speech because of cultural values.

In North Korea political debate serves no purpose because of the totalitarian government. This does not validate the North Korean government but rather points out that the relative absence of free speech is harmonious with the norms or values of North Korea (despite catastrophic consequences like famine and misallocation of resources).

In Australia the public votes for federal, state, and local leaders. There are multiple candidates seeking election for each office. The choice that a citizen makes is not possible without communication and free expression among the candidates, the media, and the public.

Constitutional provisions

Prime Minister Nehru believed that society had to face two urges, ‘continuity and change’ and that it had to keep these ‘evenly balanced’ in order to succeed. In the words of Granville Austin, “The Constitution sought to bring about a ‘social revolution’, while at the same time trying to preserve ‘national unity and stability’. In Romesh Thapper vs State of Madras (AIR 1950 SC 124), Justice M. Patanjali Sastri observed that “Freedom of Speech and the press lay at the foundation of all democratic organizations”.

But unlike Western constitutions, ours imposes certain ‘reasonable restrictions’. The keyword here is ‘reasonable’. The restrictions cannot be arbitrary. They must be for the made for the purpose mentioned in Article 19(2) of our Constitution. These restrictions extend to issues like sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offense.

However, the guidelines to test the reasonableness are not absolute and exhaustive. They have been made keeping in mind the changing social outlook of the citizenry. The expression ‘reasonable’ implies intelligent care and deliberation and seeks to strike a balance between individual rights and social control. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness.

Each case needs to be judged on its own merit as the standard varies with the nature of the right infringed, the underlying purpose of the restriction imposed, and the extent and urgency of the evil sought to be remedied. The restrictions can be listed as follows:

Restrictions

  1. The restriction must be reasonable from the substantive as well as procedural standpoints.
  2. A restriction imposed for securing the objects laid down in the Directive Principles of State Policy is also regarded as reasonable.
  3. A restriction to be reasonable must have a rational object which the legislature seeks to achieve.
  4. A restriction can be prohibitory in nature.

The rationale and deliberation behind the ‘reasonableness’ are subject to judicial scrutiny thus widening the scope of judicial review. It must be determined by objective and not subjective standards. In addition to that, restrictions can only be imposed by law and not an executive or departmental instruction. The final word rests with the court.

Sedition

On the 9th of February 2016, the Jawaharlal Nehru University became a political battlefield after the student union leader Kanhaiya Kumar was arrested on charges of sedition because of his “anti-India slogans”. This is of course not the first time the sedition law has been used to detain an individual in post-independent India. Some of the most high-profile cases where the sedition law has been used have been against the likes of Binayak Sen, Arundhati Roy, Aseem Trivedi, etc. The one common factor among all these aforementioned names happens to be that all of them had disagreed with the dominant discourse, that of the government.

Gandhi called sedition,

“the prince among the political sections of the IPC designed to suppress the liberty of the citizen”.

Introduced in 1870, Section 124A of the IPC seeks to punish an individual for any speech or writing, or any form of visible representation, which brings the government into hatred or contempt, or excites disaffection towards the government, or attempts to do so. Disaffection usually includes disloyalty and feelings of enmity. However a mere disapproval of government actions without promoting hatred or contempt cannot be considered sedition.

Activists all across the country have demanded to scrap this colonial-era law from the statute books as it violates the right to free speech and has no place in a democracy. During the colonial era, prior to arresting a person accused of sedition the police officer had to obtain a warrant from a magistrate. That is no longer necessary at present. This change was brought about by the Indira Gandhi government in the 1970s, only a few years before the Emergency was declared in India.

The popular idea of sedition in India has come to mean “deshdroh” which loosely translates to treason, thereby completely rejecting the idea of political dissent, which is what sedition originally meant, thereby allowing the executive to re-enforce a majoritarian discourse of the nation. More than that, the section has often been invoked in cases where there is no incitement to violence or a tendency to create public disorder.

While the Supreme Court upheld its validity in Kedar Nath Singh v. State of Bihar (1962), it also limited the application to acts that involve ‘intention or tendency to create disorder’ or incitement to violence thereby making strongly worded remarks (as long as they do not excite disloyalty and enmity, or incite violence) immune to the section. The Law Commission released a consultation paper last year calling for a reconsideration of the section. It has pointed out that Britain abolished it more than a decade ago and raised the question whether a provision introduced by the British to put down the freedom struggle should continue after independence.

Despite the abysmally low rate of convictions, the law of sedition continues to be a viable law for the state executive as the mere accusation of sedition is enough to secure imprisonment for years. Such temporary prosecutions succeed in discouraging many other dissident voices as it takes really long to secure bail and almost forever to appeal to a higher court. Sedition in contemporary times is often thought akin to striking terror.

The original idea of sedition was always political opposition to the government as opposed to being against the nation and its interests. There is a difference between ‘constitutional patriotism’ (fidelity to the constitutional purpose) and ‘statist patriotism’ (what Gandhi called “manufacturing affection for the state”).

Difference of opinion

While having a difference of opinion is essential for the survival of a democratic republic, it should not be at the root of an individual’s oppression or denial of existence. There are some debates that are settled and there cannot ‘another side’ to such issues. Misogyny, casteism, homophobia, racism and any other form of discrimination should not be categorised as free speech. Doing so amounts to equating free speech with bigotry. While the mere act of saying something like ‘Homosexuality should be a punishable offence’ or ‘Dalits should not be allowed access to the same public resources as their upper-caste counterparts’ might seem innocuous, what it gradually leads to is rather diabolical.

To begin with, it is important to identify the person making such a statement vis-à-vis his social position. Usually it is the more privileged and the ones occupying the upper echelons of a particular social category who make such statements. Their influence and authority are always more than those they try to suppress.

Their access to public domain allows them to disseminate their contempt for certain groups as their ‘difference of opinion’, which assumes an implicit and covert form of discrimination. What follows is the continued perpetuation of a set of thoughts and ideas that is eventually embedded in the minds of impressionable children who further this view when they grow up. This eventually leads to violence on these subaltern sections.

Violence here refers not only to the physical act but also to prejudiced behavior that one experiences due to the perpetuation of stereotypes. For example, the queer community in India is still not considered a part of the mainstream and therefore they find it difficult to accommodate themselves amongst others. This leads to a kind of ghettoization thereby demarcating a specific space for them and for others. Sometimes they are not even provided with equal opportunities of education and employment. This is visible more in the case of the transgender community.

A more dangerous manifestation of this hate that is allowed to spread in the name of free speech can be identified in the numerous incidents of suicides, mostly by millennials who are either bullied by their peers or shunned by their family.

While penalizing individuals for making openly divisive statements can be viewed as negative action, a more positive way out is educating people on these issues. Many times it is a lack of knowledge on the part of a large section of people that are exploited and converted into hate. Instead of engaging with the privileged and prejudiced lot (thereby lending them unwarranted legitimacy) it is important to remove misconceptions people have regarding such issues and point out the inaccuracies and errors of arguments and claims made by the naysayers.

Conclusion

The status of free speech at present is that it is not determined by the Constitution but by the cultural norms of India. Be it insults to national honor or religious sentiments, all of it seems like walking on eggshells. This right is also prone to be smothered by private entities as well. While an individual in his capacity as a citizen can challenge the government if the latter tries to suppress his free speech, they cannot do so in their capacity as an employee of a private organization as their employer reserves the right to dismiss them from service.

Many times, free speech is also held at ransom by vigilante groups and this is visible more in case of works of art. There have been numerous examples of movies being banned or theatres screening certain movies being at the receiving end of mob violence.

Any statement made about judges even outside the courtroom if found to be derogatory is punishable on the questionable assumption that such statements have the potential to impair public confidence in the judiciary even though such statements may not be posing any threat to the daily functioning of the court or the administration of justice.

The strength of a nation is revealed not by forcing a uniformity of opinion down the throats of every citizen but when those citizens fearlessly express their views and ideas, no matter how revolutionary. Of course, there will be exceptions to certain situations where free speech will come second to something more important (like protection of children). A free and open press that can criticize the government and citizens expressing a contrary viewpoint not being attacked by those who share the popular narrative is when we can truly claim to have achieved a democratic republic.

By Supriyo Dey, 

Presidency University, Kolkata

 Subhajit Mukherjee,

Department of Law, Calcutta University


References

[1] Nigel Warburton, Free Speech: A Very Short Introduction (2009).

[2] Harry Melkonian, Freedom of Speech and Society, 15 (2012).

[3] K. T. Thomas & M. A. Rashid, The Indian Penal Code, (2017).

[4] Anushka Singh, Sedition In Liberal Democracies, (2018).

[5] AP Shah, Free Speech, Nationalism & Sedition, EPW, Vol. 52, Issue No. 16, (22 Apr, 2017).

[6] Abhinav Chandrachud, Republic of Rhetoric, 1 (2017).