What The Left Should Know: Free Speech Absolutism, If Legal, Is A Two-Way Street

by Saideepak - Feb 21, 2016 05:06 PM +05:30 IST
What The Left Should Know: Free Speech Absolutism, If Legal, Is A Two-Way StreetJNU student protest (CHANDAN KHANNA/AFP/Getty Images
Snapshot
  • The argument that anything goes under the head of free speech is as uninformed as it is convenient. Will those who espouse free speech absolutism on the Left accept a two-way street? Can the Left swallow what it dishes out to the rest?

A lot has been written on the fundamental right to free speech ever since controversy broke out surrounding the anti-India slogans reportedly raised in JNU by a few students and research scholars. While the facts relating to the incident are being muddied and issues obfuscated thanks to the unthinking buffoonery of a few lawyers, we are told over and over again that Section 124A of the Indian Penal Code, 1860 which criminalises sedition, is an archaic colonial vestige and hence must be ignored. We are also told by these purveyors of convenient free speech absolutism that freedom of speech under the Indian Constitution goes beyond the right to dissent, and extends to speech which encourages secessionism and calls for the destruction of the Indian State. We are pontificated to by these “intellectuals” that the only cure to objectionable speech is more speech.

As usual, these “intellectuals” display their ignorance of the law or perhaps selective amnesia. They need to be reminded that what they dismiss as a colonial vestige was upheld way back in 1962 by the Supreme Court as a constitutionally permissible reasonable restriction on free speech and expression within the meaning of Article 19(2). Following were the Apex Court’s observations on the interpretation and application of Section 124A after reviewing its origins in detail and analysing its effects on the fundamental right to free speech and expression under Article 19(1)(a):

“The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress. Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”

In light of the above, whether or not the sloganeering of Kanhaiya Kumar amounts to sedition, those who claim to stand for rule of law are asking the rest of us to turn a blind eye to a provision which exists in the statute book today with the imprimatur of the highest Court of the land. Importantly, going by the Supreme Court’s reasoning wherein it has struck a distinction between criticism of Government action and its human agents on the one hand, and inciting hatred towards the Indian State on the other, a call for the obliteration of the Indian State may not pass legal muster as permissible free speech in a Court of law. Therefore, the argument that anything goes under the head of free speech is as uninformed as it is convenient.

Convenient, because free speech absolutism becomes the mantra only when it is exercised by the Left and groups which have its benedictions for causes it approves of. Although constitutionally untenable, if the Left’s absolutism on free speech were to be exercised by the Right to the same degree if not more, one wonders what the reaction would be to just one hypothetical situation relating to a work of fiction.

Readers may be aware of the popular American TV series Homeland which is based on the Israeli series Hatufim. In the first episode of the fifth season of Homeland, one of the characters Peter Quinn, a CIA agent, briefs his superiors on the ground realities in Syria post the emergence of the Islamic State (ISIS). Quinn’s response when asked if the US’s strategy of putting down ISIS is working, is one of the most popular videos on YouTube. Here’s what he says:

“What strategy? Tell me what the strategy is and I’ll tell you if it’s working… (long awkward silence from Quinn’s superiors) See, that right there is the problem because they, they have a strategy. They are gathering right now at Raqqa by the tens of thousands. Hidden in the civilian population, cleaning their weapons. And they know exactly why they’re there.”

“Why is that?” asks Quinn’s superior, to which he says:

“They call it the end times. What do you think the beheadings are about? The crucifixions in Deir Hafer, the revival of slavery? Do you think they make this shit up? It’s all in the book. Their fucking book. The only book they ever read. They read it all the time. They never stop. They’re there for one reason and one reason only- to die for the Caliphate and usher in a world without infidels. That’s their strategy and it’s been that way since the Seventh Century. So do you really think that a few Special Forces teams are going to put a dent in that?”

When asked what he would do, Quinn recommends putting 2,00,000 (or 200,000) American troops on the ground indefinitely to provide security and support for an equal number of doctors and elementary school teachers. When told that’s not an option, Quinn responds that he better get back to Syria to fight the ISIS. He is asked what else would make a difference to the situation to which he says “Hit reset”. Asked to elaborate, he clarifies- “Meaning pound Raqqa into a parking lot.”

To proponents of selective free speech absolutism, my question is this- would a work of fiction in India, forget in real life, expressing the above sentiments receive their thumping endorsement as free speech? If they blithely answer in the affirmative, please do point out to them the following instances (there are more) when the Left was conspicuously silent or defended violent reactions to exercise of free speech:

1. The not-so-peaceful reaction of members of the Indian Muslim community to Salman Rushdie’s Satanic Verses

2. The riots which took place in 1986 in Bangalore when The Deccan Herald published a short story titled “Mohammed the Idiot”

3. The recent call for the beheading of Kamlesh Tiwari by members of the Muslim community in Malda and Muzaffarnagar in response to Tiwari’s allegedly derogatory comments against Prophet Muhammad

4. The riots which took place in India when Sitaram Goel and Chandmal Chopra filed a petition before the Calcutta High Court in 1985 seeking a ban on the Quran.

5. The ban on a number of books written by Sitaram Goel on Islam and Christianity

Sure, a handful of Hindus too have reacted violently to M.F.Hussain’s nude paintings of Hindu Deities. But by and large, the Hindu society has been more tolerant of the abuses hurled at its faith and its deities given the sheer frequency with which it happens and the monumental amount of vitriol that is spewed against the Hindu religion, all under the garb of liberalism and free speech. One might even say that the Hindu society has all but stopped reacting to such provocations. However, the human expectation that comes with such tolerance and acceptance is that it is reciprocated in equal measure. So will those who espouse free speech absolutism on the Left accept a two-way street? Can the Left swallow what it dishes out to the rest?

Sai is an engineer-turned-Advocate, High Court of Delhi. He is founder of the “blawg” “The Demanding Mistress” and tweets @jsaideepak.

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