Freedom Of Speech Must Be Absolute

If a statement one makes is wrong, it can be challenged. It should not be proscribed.

It is ironical that a nation that prides itself on its time-honoured commitment to truth, reflected in the national motto Satyameva Jayate, continues to retain draconian legal provisions that undermine the very pursuit of that truth.

The recent petitions filed by India’s prominent politicians, arguing for abolition of criminal defamation laws — Sections 499 and 500 of the Indian Penal Code (IPC) — have rekindled the debate on what constitutes “reasonable restrictions” on free speech as laid forth in Article 19 (2) of the Indian Constitution. These Sections provide for a punishment that involves imprisonment of up to two years or fine or both for perpetrators of the ‘crime’ of defamation.

Discussing in detail the irony of the petitions being filed by some dignitaries who had themselves once misused these provisions of law is beyond the scope of this article. Suffice it to say that regardless of the motivations behind these petitions, criminal defamation laws have no place in a free society — if India aspires to be one — and must go. Similar should also be the fate of other hate speech laws such as Section 295(A) or 153(A) of the IPC which use vague, nebulous, and extremely broad words like “[anyone who] outrages the religious feelings”, or “attempts to insult” or “promotes… disharmony or feelings of enmity” to throw otherwise well-meaning citizens into jails that are predominantly meant for hardened criminals.

It is, therefore, disconcerting to realise that the Centre recently argued before the Supreme Court in favour of retaining these provisions. The claptrap peddled by the Narendra Modi government to corroborate its case in support of criminal defamation laws was that civil proceedings take years to settle (meaning, effectively, they take years to quash the freedom of speech) while criminal proceedings are faster in destructing that freedom.

Ironically, England, the country which bequeathed the infamous legacy of criminal defamation to India, abolished the law in 2009. Such laws are believed to be dating back to the early seventeenth century, when the invention of the printing press enabled political writings to be circulated far and wide through pamphlets. The Court of the Star Chamber (the English court of law from the late fifteenth to mid-seventeenth century), fearing that criticisms against the royal authority, regardless of their truthfulness, may disturb public peace, began charging the critics with the criminal offence of seditious libel.

Evidently, this faux peace, resulting from the English citizenry’s ignorance of their State’s corruption, was preferred over the knowledge of truth because any exposure could have potentially led to the downfall of the government. This perhaps explains the origin of the well-known adage, “The greater the truth, the greater the libel.”

Not surprisingly, famous England-American political theorist Thomas Paine, who helped inspire the American Revolution, was also charged with seditious libel in England because of his insistence on the right of the citizens to overthrow the government in the second part of his work Rights of Man. Even though Paine would have been happy with the fact that seditious libel was finally abolished in England, such laws continue to thrive to this day in one of its former colonies, India.

Section 124(A) of the IPC, for example, provides for imprisonment to anyone “who brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India”. This law was enacted by the British to keep the Indian freedom movement in check, too. Not surprisingly, both Bal Gangadhar Tilak and MK Gandhi were charged with sedition, arrested, and jailed for six years and two years respectively.

It does not take an expert in psychology to understand how the fear of being forced to undergo the intense mental trauma that inevitably accompanies any criminal proceedings in India would create a chilling effect on the broader freedom of speech. The possibility of arrest, the social stigma attached to it, and the potential encumbrance of going through criminal trials are enough to discourage any civil man, who cannot afford to lose two years of his life over a petty tweet or a Facebook post, from expressing his opinion that could be potentially true.

Truth, for it to emerge in its entirety, requires a metaphorical marketplace of ideas. This is a place where different ideas — no matter how crude, offensive, or repulsive to a person — are allowed to float freely. They are not outlawed or restricted in any manner to guard people’s subjective sentiments, which vary across individuals. The rationale behind encouraging such a ‘market’, where contradicting ideas would be allowed free expression so as to enable them to compete with each other, is that such competition allows the members of a society to think for themselves rather than the paternalistic State filtering ideas for them. It is the citizenry that decides whether an idea should be adopted or discarded through what is implicitly a democratic process. Moreover, this is a wholly voluntary process.

America’s Justice Oliver Wendell Holmes, in his dissent in the Abrams versus United States, 250 US 616 (1919), inadvertently, yet wisely, explained the significance of a ‘marketplace of ideas’ thus:

But when men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade  in ideas — that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

When the State interferes in this free market of ideas by prescribing laws that restrict freedom of speech, the eventual result is a thorough repression of truth.

Arguably, there is no objective way to decide the threshold of “offensiveness” or “hurtfulness” of the speech, mainly because of the subjectivity involved in perceiving that speech — which is why words like “intended to be hurtful to the feelings of his family or other near relatives” in Section 499 of IPC do not make sense. What one person may find insulting, another person may find comical. Moreover, what is the best antidote to someone who intends to mar my reputation in public by alleging me to be a corrupt person? It is to expose that person by disproving his claim, if possible, or even better yet, just ignore him. After all, we do that regularly even in our personal lives with people who backstab us, don’t we?

When it comes to barring free speech, however, there is one objective qualification: a direct call to physical violence.

Violence threatens the very life and liberty of an individual. It is also perceived more or less in the same manner by everyone — when one man punches another, he is bound to feel pain — unlike verbal attacks, which may or may not hurt the victim. Then, there is also the crucial issue of personal choice and discretion, which does not exist when confronted with violence. Unless I am a martial arts expert, I will not be able to defend myself. That, however, is not true for verbal attacks. When confronted with vitriol or a piercing insult, our locus of personal choice exists and is large. As beings with discretionary powers, we can always disregard the insult and choose to maintain our poise.

Most restrictions on free expression are advocated by people who assume they “know it all”. When Socrates heard that the oracle of Delphi deemed him to be the wisest man in Athens, he would not believe it and tried to find wiser people among poets, politicians, and other eminent people. But to his amazement, every one of them claimed to know answers to difficult questions. That is when Socrates realised that the knowledge of his ignorance — the fact that he knew how much he did not know — explained why the oracle considered him to be the wisest.

If most of us hold the awareness of our ignorance so exemplified by Socrates, we would advocate for the abolition of all laws that impede freedom of speech and expression because, well, there remains so much in the universe for the human race to be known. What appears true today — whether in philosophy, religion, humanity, or social and material science — can be disproved or improved upon tomorrow. But without the guarantee of absolute freedom of speech and expression, barring direct calls to violence, we will only delay, if not completely thwart, our pursuit of that truth.