FREEDOM OF SPEECH—THE MUCH FETTERED FREEDOM

This paper examines one of the Fundamental Rights−‘Freedom of Speech,’ which has become very contentious of late. It traces the history behind the drafting of our Constitution and explains the logic behind the Fundamental Rights. Finally, it critiques the current scenario wherein the freedom of speech has become increasingly fettered, leading to increasing curbs being put on it defeating the very principle that gave rise to them.

  India had been under British rule for well nigh 200 years. After a protracted struggle for independence for over four decades, independence was achieved. One of the traumatic experiences of Indians and in particular the political leadership of the time was their incarceration on flimsy grounds and the complete and utter lack of freedom of any kind including the freedom to criticize the British government. Therefore, after freedom from the British was won in an unique manner—a manner that  the world had not seen before, and has not seen since, at least till date, the political leadership of the time had though it fit to provide for their fellow countrymen the freedoms that they were denied in their lifetime by the British.

With this altruistic intention our political leaders of the time provided the momentum for the fundamental freedoms to be incorporated in our political system in the form of getting them mandated in the Constitution.

They drew upon several existing frameworks for this purpose.

The Magna Carta was the first move in the history of mankind to place fetters on the untrammeled freedom of Kings. The English people were way ahead of others in fighting for their rights. King John was forced to sign the Magna Carta which effectively placed curbs on his, hitherto, uncontrolled freedom.

The Magna Carta also gave the people many rights which had not been enjoyed by people till that point in time.

Subsequently the King had to relinquish many more rights from time to time.

The Bill of Rights was enacted in 1689 which consolidated all important rights and liberties of the English people which further restricted the authority of the King and gave a statutory backing to the rights of the people

This declaration gave the people of France certain rights which were declared to be natural, inalienable and sacred.

The US, as a then fledgling democracy, having won its freedom from the British in 1776,

incorporated the Bill of Rights right at the inception to protect its democratic nature of governance.

All of the above were the sources of inspiration to the Indian political leadership of the time in framing our Constitution and in particular the chapter on Fundamental rights.

The incorporating of the Fundamental Rights is in consonance with the modern concept of democracy for which the preservation of certain rights are a sine quo non to guarantee a free society.

“The aim of having a declaration of Fundamental Rights is that certain elementary rights such as-right to life, liberty, freedom of speech, freedom of faith and so on, should be regarded as inviolable under all conditions and that the shifting majority in legislature of the country should not have a free hand in interfering with these Fundamental Rights.”

The abusive exercises of fundamental rights are balanced by the assertion of rights of others or by application of the principle of equal liberty of all or right to equality. As a consequence of this principle, restrictions on defamation, contempt of court, unlawful assembly, conspiracy, fraudulent or forceful conversion from one religion to another are routinely upheld. The Ismail Faruqui¹ case established the principle of equal liberty of all as the bedrock of secularism.

We have many reasons to feel proud of ourselves as a nation: as an inclusive, plural, tolerant, open democracy with freedoms guaranteed under our Constitution, unlike other wealthier but deprived people of wealthy but totalitarian regimes. Recently there has been a raging debate over one of the fundamental aspects of our democracy which has been constantly under attack from overly sensitive fellow countrymen— the freedom of speech and expression. There are six fundamental freedoms guaranteed under our constitution. Of these only the freedom of speech and expression guaranteed under Article 19(1)(a)  of our constitution is the one that is turning out to be very contentious. But this debate is not of recent origin.

In one of the recently televised debates on national television a leading lawyer of the supreme  court, who is also the spokesperson of one of the leading national political parties and a member of parliament, explained this concept of freedom of speech  very eloquently  yet  with admirable brevity. What he said was legally correct. However, typically as a politician, he also indulged in verbal subterfuge by telling the truth but not the whole truth. He said, “Your freedom ends where my nose begins.” That is quite correct as far as law is concerned.

 The freedom of speech and expression guaranteed under the constitution is not an unfettered freedom. It comes with several subtle but potent riders. The state has the powers to impose reasonable restrictions on the following grounds under article 19(2):

Ø  Defamation Security of the state

Ø  Friendly relations with foreign states

Ø  Public order

Ø  Decency or morality

Ø  Contempt of court

Ø  Defamation

Ø  Incitement of an offence

Ø  Sovereignty and integrity of India

Of the above, only the two restrictions— decency or morality, and public order are the ones that have caused considerable anguish.

Coming back to the eloquent argument of our lawyer-parliamentarian; the position in law is ‘your freedom ends where my right is violated.’ Just like the event horizon of a black hole, at which point nothing can escape the gravitational pull of the black hole, not even light, the event horizon of the freedom of speech and expression is the point at which someone’s right is infracted. This is generally not understood by the lay public.

Successive governments, both at the center and the states, have regularly buckled under pressure from small but vocal, and at times  militant, groups of people claiming to represent segments of society.

 The genesis of this trouble can be traced back to the banning of Salman Rushdie’s book the Satanic Verses back in the late eighties. Two decades later came the infamous episode of Taslima Nasreen and the cancellation of her residence permit by the ostensibly secular leftist government in West Bengal. Their successor, the non-leftist party currently in power fared no better; they banned the inauguration of Taslima’s latest book in Calcutta even though the book itself was noncontroversial and has not been banned. The ultimate irony is that this book was released in her native Bangladesh from where she is on self-imposed exile!

The recent fracas and resultant farce over Salman Rushdie’s proposed visit to the internationally renowned book fair in Jaipur was but a reiteration of this hypersensitivity. These are not isolated episodes of intolerance; forgotten is the case of our only world-famous painter M.F. Hussein who died a lonely man in far away Qatar; a book on Shivaji was banned in Maharashtra because the book dared to espouse a view that was contrary to the popular view.

The problem with our religious and cultural fundamentalists is that they do not differentiate between critique and criticism. Critique is the process through which a society evolves. And by conflating critique with criticism we risk becoming an intolerant society that does not brook any challenge to its version of culture and religious practices. Mankind has progressed not merely by the efforts of the majority but more by the efforts of the minority who dared to think differently and challenged the known wisdom of the times. It is to their intrepidity as much as to their intellect that mankind owes so much. History is littered with numerous example of the brave few who paid a terrible price for daring to think differently: Galileo was forced to recant his views and was latter incarcerated by the church for positing that the sun was the center of the solar system and not the earth which was contrary to the view of the church, and much before him Socrates was forced to drink hemlock and died because he questioned the Greek intellectuals.

We must, as a civilized nation, learn to accept critique and answer it with reason and logic, not with rabble-rousing rhetoric and militant suppression of contrary views. Facing up to critique is not the same as accepting it. One always has the right to refute it with equally sound logic. Ultimately that is the only way for a society to progress. Notwithstanding all the fundamental rights in the constitution, we will never progress unless we learn to be mature and have the courage to face critique full on, otherwise we risk talibanising our society.

              The internet has brought in its wake a new set of problems that the Indian government is grappling with, and not very successfully at that.

              This involved the two girls in Mumbai who shared an innocuos post on Face book criticizing the Shiv Sena for the bandh declared on the death of Balasaheb Thackeray. The hurried arrest of the girls by the police and the filing of a case against them was done without thinking through the issue and expectedly, the matter backfired and the police not only had to release the girls but also had to drop the case, with the court coming down heavily on them for violating the fundamental rights of citizens.

               The IIPM Director had filed a case in a lower court praying for the internet sites that were critical of IIPM to be shutdown and the
court duly agreed with the plea and issued orders that the offending sites, numbering about 70-odd, be shutdown. Ironically, one of the sites that was ordered to be shutdown was the UGC which was obliged to list out the unrecognized Institutes/Universities so that prospective students can take informed decisions. The court had issued the order without even affording the other parties an opportunity to defend themselves. The government has, expectedly, filed an appeal in the higher court and most likely the order may be set aside for not adhering to the principles of natural justice.

               Rattan Tata had successfully filed a case in court for preventing the tapes being made public as these constituted private conversations and publicizing such private conversations would violate his fundamental right to privacy.

               From a scrutiny of the above cases, two issues become apparent: one, the government and the executive resort to knee-jerk reactions with regard to matters of freedom of expression and try to restrict such expression on flimsy grounds which ultimately prove to be untenable; two, the courts have intervened time and again to strike down such actions as unconstitutional and prevent the government from indulging in such actions that restrict freedom of expression. This is a heartening tend and augurs well for the preservation of freedom of expression.

This restrictive approach towards reducing freedom of speech also has an unintended effect—on advertising strategy. Copy writers and artists in advertisement and their marketing counterparts need to be very careful of this trend in society and ensure that they do not transgress these societal limits which are enforced through legal means. There are already several instances of advertising strategies that have resulted in protests and recall of products. An advertisement for shoes featuring a picture of a Hindu god backfired and all the shoes had to be withdrawn from the shelves. Similarly, a Clothing designer in Europe made the mistake of featuring an Arabic statement which invited protests from Muslims, again resulting in the clothing line being withdrawn from the shops. Even an advertisement for a skin-whitening cream got mired in controversy over a perceived racial bias.

These wrong marketing strategies backfired because of lack of awareness of such increasing societal sensitivities which ultimately affect organizations adversely. It is therefore prudent to be aware of the social trend of curbing freedom of speech and creativity.

Fundamental Rights: A Study of Their Interrelationship by Prof. P.Ishwara Bhat

¹M. Ismail Faruqui v Union of India AIR 1995 SC 605; (1994)6 SCC 360

Doctrinal Dissertation : Freedom Of Speech And Expression-A Study Of The Origin And Philosophy Of Fundamental Rights In Our Constitution   And The Evolution Of Case Laws Pertaining To The Freedom Of Speech And Expression by M.K.Lodi