Sudarshan TV Case: SC Bench Cannot Have Double Standards On Free Speech
Can we really have two standards on free speech? If the court flunks this test of uniform application of the laws restricting free speech, it will have failed to uphold it.
The Sudarshan TV broadcast on ‘UPSC Jihad’ is indicative of the hypocritical approach on the part of the courts, and the Information & Broadcasting (I&B) Ministry, not to speak of the “Lutyens liberal elite” for whom “hate speech” is about silencing their critics.
Yesterday (23 September), the I&B Ministry jumped into the fray and sent Sudarshan TV a notice for 13 violations of its cable TV broadcast rules. This U-turn comes after the same ministry okayed the telecast as long as the channel followed its rules. The channel claims it is following the rules, citing how other channels had done much the same thing and were not held to have contravened the rules.
In many ways, the I&B Ministry’s intervention actually gives the Supreme Court bench headed by Justice D Y Chandrachud time to reformulate its approach to free speech.
The bench has tied itself in knots by equivocating on the matter, with Justice Chandrachud claiming that he had to find a balance between upholding free speech and the dignity of a “community”.
We know which community we are talking about. It numbers 200 million, or thereabouts. The judge is quoted as saying, “If it was a balance between free speech and the dignity of an individual, we can tell him to go file a civil suit. But here, the balance is to be drawn between free speech and a community.”
Really? Individuals can try their luck with the courts, which anyway take years to decide anything, but the world’s second largest religious group, with a penchant for violence, is to be mollycoddled in India?
This approach actually contradicts an earlier order of another bench in which Justice Chandrachud was a member. In the case of Kancha Ilaiah Shepherd, a traditional Hindu-baiter, a bench headed by the then Chief Justice, Dipak Misra, held (in 2017) that there was no need to ban the book which targeted a small community of Vysyas, and Hindus in general.
The book, among other things, had contentious chapters titled “Post-Hindu India” and “Hindutva-mukt Bharat”, among others, but the bench had no hesitation in saying that it was not in the business of banning books, as it put free speech on the highest pedestal.
So, what has changed between 2017 and 2020, that a book that allegedly maligned a small community passed muster while a TV show that allegedly offends a powerful and much larger religious group, is being hauled over the coals?
Should the courts protect smaller communities with no significant political patronage, or large groups that are quite capable of taking to the streets and burning police stations, if required, to gag the media?
When other TV shows have aired programmes with phrases like ‘Hindu terror’ or ‘Saffron terror’ and attracted no bans – a point emphasised by Sudarshan TV itself in the current case – why is only one community being shown this kind of consideration?
It is also worth recalling that the Lutyens media, which is baying for Sudarshan TV’s blood, took an entirely different stand when the same I&B Ministry sought to ban NDTV for a day as it had violated rule 6 of the Cable Television Network Rules 1994 by broadcasting live the Gurdaspur terror incident even when operations were going on.
The hue and cry raised by Lutyens Delhi ensured that the I&B Ministry backed off (read just one article here). Now, of course, the same cabal is rooting for putting Sudarshan TV through the wringer.
The I&B Ministry is not an uninterested party in this game, for if the court upholds whatever decision it takes on Sudarshan TV’s alleged 13 violations of the rules, it will feel vindicated in using them more often in future. It seems to have helped both Sudarshan and the bench gain time to rethink, but effectively it gains more clout with its anti-free speech cable TV rules if Sudarshan is ultimately gagged by the bench.
The truth is the bench is skating on thin ice by formulating its free speech rules arbitrarily, where a community is to be protected but not individuals through pre-publication bans. Pre-publication bans are wrong in principle, for it is censorship. The only right way to claim injury is after a report is published or aired on TV. Even then, mere offensiveness cannot be used as an argument to gag anyone.
The court has been put in a piquant corner as three other parties, Opindia, the Indic Collective, and Upword, have sought to implead themselves into the Sudarshan TV proceedings, and their argument, inter alia, is that the court has no business trying to adjudicate in this matter.
The court probably thought it has only the Muslim groups’ claims to contend with, but with some Hindu-leaning groups joining the fight over broader issues, the bench has no place to hide. The days when Hindus quietly accepted minority appeasement as the norm are coming to a close.
The big question is whether communities can claim the same rights as individuals. The simple rule, as economist Arvind Virmani noted on Twitter the other day, is that individuals have rights and responsibilities for which they can be held accountable. If groups are given the same rights as individuals, they too need to be held responsible and accountable for the actions of individuals belonging to their group.
But we don’t blame the entire community for the acts of one terrorist, and hence all rights (and responsibilities) essentially flow upwards from the rights of individuals to groups and communities. A community cannot be maligned as a collective, but individuals can sue those who malign them in case they can prove their point.
In any event, when it comes to free speech, rules cannot be applied selectively to shield only one community. While some caste groups have indeed taken to the streets to protest movies or books, you did not have crowds rushing to destroy public property just because Prashant Bhushan tweeted that Shri Krishna was an “eve-teaser” (a tweet quickly deleted), or a woman with white privilege (Audrey Truschke) suggested that Shri Rama was an “MCP”.
This implies that the tolerant will always lose out, and the intolerant can get away with mayhem, even murder, as we saw in Malda’s Kalaichak in 2016, in Bengaluru this August, and in the killings of Kamlesh Tiwari in Uttar Pradesh and Ramalingam in Tamil Nadu last year.
Some can hold placards demanding “smash Brahminical patriarchy” and get nothing more than social media abuse, but try putting the priesthood of other religious groups in the same poster, and it will be considered hate speech.
It is worth recalling that before independence, Mahatma Gandhi and Dr B R Ambedkar could make sweeping statements about communities without being hauled up in court. Gandhi could talk about how “the Musalman as a rule is a bully”, and Ambedkar, in his tract on Pakistan, could say that India’s pre-partition Muslim community was guilty of adopting “the gangster's method in politics.”
Ambedkar even quoted poet Rabindranath Tagore as expressing concerns about Muslim loyalties to India. Ambedkar wrote:
Another very important factor which, according to the poet (ie, Tagore) was making it impossible for Hindu-Mohamedan (sic) unity to become an accomplished fact was that the Mohamedans could not confine their patriotism to any one country... The poet said he had very frankly asked many Mohamedans whether, in the event of any Mohamedan power invading India, they would stand side by side with their Hindu neighbours to defend their common land. He could not be satisfied with the reply he got from them. He said that he could definitely state that even such men as Mr Mahomed Ali (sic) had declared that under no circumstances was it permissible for any Mohamedan, whatever his country might be, to stand against any other Mohamedan.
Today, it is considered wrong to question a Muslim’s loyalty to the nation, which is absolutely correct, but in pre-independence India, even a Tagore was asking the same question and got no convincing reply. The point is free speech can be as much a casualty of political correctness as official censorship.
There is little doubt that both Gandhi and Ambedkar were guilty of stereotyping and generalisations. But if these cases were to come up before the bench now hearing the Sudarshan TV case, maybe they would have been asked to apologise or delete those statements since a “community” was offended.
Despite the I&B Ministry’s interventions in the Sudarshan TV case, the Justice Chandrachud bench should take up the larger question of free speech and come down in favour of more freedom not less.
But, from the trend seen so far, one can doubt whether the court will have the courage of its convictions – a courage that came easy when Kancha Ilaiah was targeting the Vysyas and Hindus.
Can we really have two standards on free speech? If the court flunks this test of uniform application of the laws restricting free speech, it will have failed to uphold it. The case against Sudarshan TV stands on weak grounds even assuming one community is offended by its contents.
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