The Right And Wrong Of Free Speech

The Right And Wrong Of Free Speech

by Ananth Krishna - Monday, October 2, 2017 08:39 PM IST
The Right And Wrong Of Free SpeechLoudspeakers in Allahabad (SANJAY KANOJIA/AFP/Getty Images)
  • A simplistic understanding of the right to free speech in India is good for contemporary virtue signalling. But no more.

Ever since the Narendra Modi government came to power in May 2014, a discussion of the state of civil liberties, especially that of the freedom of speech and expression, has heightened in the international as well as national media.

But has the Union government by itself acted to limit the right of citizens to free speech and expression as claimed by the media?

Before answering such a politically loaded question, let me first bring to fore the law concerning free speech and expression: it is Article 19 Clause 1, Sub clause (a) that gives the Indian citizens the right to freedom of speech and expression.

All citizens shall have the right (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (f) omitted (g) to practise any profession, or to carry on any occupation, trade or business

As part of Part III of the Indian Constitution, this right is available to the citizens as against the State. But, as is with any constitutional right, it comes with restrictions. These limitations on right to free speech and expression are spelled out in Clause 2 of Article 19:

Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the 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 offence

This clause was added to the Constitution by way of the first amendment in 1951, following which it was established that a law can impose “reasonable restrictions” on the exercise of the right to freedom of speech and expression on the following grounds - in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court or in relation to incitement of an offence.

As one can see, the grounds on which these restrictions can be imposed are quite broad, and thus substantially limit freedom of speech and expression. But what is being “reasonable”? Who decides what constitutes reasonableness? This is subject to interpretation by the courts in our country. These restrictions, of course, can be imposed by the Parliament on any of these seven grounds, and it is the courts that evaluate whether such restrictions are “reasonable".

Furthermore, the wording of the clause suggests it not only allows the legislature to promulgate any law that imposes reasonable restrictions, but it also permits any law in operation to continue with these restrictions. This should be read along with Article 13 of the Constitution, which defines what law is. This Article strikes down any law that is in contravention of Part III of the Constitution - in other words, all laws that were enacted before Independence are only void to the extent that they infringe upon the fundamental rights of the citizens. This meant that the sedition law in the Indian Penal Code (IPC) continues to be in operation.

As you can see, the right to free speech and expression in our country is substantially restricted - and this was clear from the very first amendment itself. This Amendment was moved by Jawaharlal Nehru - even before the election of the first Parliament, in the constituent assembly (interestingly, B R Ambedkar supported the first amendment while S P Mukherjee, who went on to found the Bharatiya Jan Sangh, opposed it), and while the Preamble states a very valid reason for limits on free speech (the courts held that even criminal incitement of an offence was protected, an extremely remarkable progressive position) - for no rights can be absolute – the restrictions were more than what was bargained for, as it substantially curtails the right to free speech and expression.

Having explained the legal provision and limits for freedom of speech and expression, it is important to explore another important limit to free speech: defamation. The right to freedom of speech and expression, while recognising the right to speak one’s mind, does not mean that the person can use such a justification to legitimise his pronouncements. The right to free speech does not include the right to defame or slander. One may be free to speak his or her mind, but he or she is not free from the consequences of such exercise of free speech. This is an almost universally recognised limitation to free speech in liberal democracies everywhere. The distinction in India is the unfortunate legality of criminal defamation, which means that one can be sent to jail for up to two years according to Section 500 of the IPC. This is absolutely unnecessary, and should be struck down at the earliest considering the unjust punishment that it carries. Defamation can only be a civil wrong.

That being said, an action by one person against another for defamation is not something that “restricts” such a right. As discussed before, freedom of speech is not freedom from consequences of that free speech. Let’s for instance look at the recent instance of a Bharatiya Janata Party (BJP) leader sending historian and author Ramachandra Guha a defamation notice for holding the Sangh Parivar responsible for the murder of Gauri Lankesh and other rationalists. The bogey of free speech was raised by many in this issue, and Guha himself tweeted that: “Atal Bihari Vajpyee said the article to a book or an article can only be another book or article. But we no longer live in Vajpyee’s India”

Guha’s interpretation, as implied in the tweet, was that Vajpayee held that a response to some form of criticism is response through the pen itself, and the BJP, rather than resorting to a legal recourse against this slander, should have slandered him in return! Regardless of such an interpretation, one must keep in mind that one has a right to reputation, and if that is tarnished, the recourse available to that person is the judicial system – and that is exactly what the BJP leader has made use of. One cannot claim that attempting to protect one’s reputation against slander amounts to being anti-free speech. In fact, when one’s reputation is harmed, this is exactly what one would opt for in a society which follows the rule of law.

What could be quite alarming in many cases is the hypocrisy of liberals in the free speech debate. In a series of actions against Kerala’s former director general of police, T P Senkumar, the state government without wasting any time filed a case under Section 153 - A against him for promoting enmity between different groups. It was quite clear that the government had taken action against a person for his views, and the High Court of Kerala itself expressed doubt regarding the case against Senkumar. But, rather curiously, the state’s actions did not provoke any response from free speech warriors who would normally pounce on such incidents. Perhaps, the fact that Kerala had a communist government was reason enough for them to stay silent.

There are many such instances in which the “liberal” end of the spectrum stayed conspicuously silent on the issue of free speech, when it was contrary to their narrative – for instance, the Basirhat riots or that of Kamalesh Tiwari.

The right to free speech has different contours and is complex - it is not straightforwardly an absolute right. The various opinion pieces and commentaries almost always fail to capture the legal position of the right, and the fact that the Modi government has not by any measure, restricted the right in any manner that the left hallucinates it to have. The restrictions on the right have been the same since the 16th amendment.

The discourse on the freedom of speech and expression in the country as well as in international media need to consider these facts. Many left liberals, meanwhile, need to re-evaluate their hypocritical stand in this particular instance, which expose their partisan outrage.

(Please note that this article overlaps with the discussions in the author’s personal blog: “On Free Speech” and “Free Speech: Examination of two recent scenarios”.)

Ananth Krishna is a lawyer and observer of Kerala's politics.
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