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Free speech is not a one way street

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In last one month or so, a lot of journalists and thinkers with right wing leanings have been booked under various Sections of India Penal Code, 1860 (hereinafter “IPC”) including but not limited to accusations of spreading hatred and enmity in the society. These First Information Reports (hereinafter “FIRs”), a rule without exceptions, have been registered in non-BJP ruled states. These FIRs follow a fixed pattern. Worker of some opposite political camp gets ‘offended’ with some article or TV debate and files a complaint with the Police authorities and promptly an FIR is registered on the basis of the same.

Charges which are cognisable and non-bail able, like Section 153A and 295A of IPC, usually form part of these FIRs as these charges give discretionary power to Police to arrest the persons named in these FIRs without permission of the court as provided in Section 156 of The Code of Criminal Procedure, 1973. Person named in these FIRs is, soon, called by Police authorities to present himself/herself in the Police station to cooperate in investigation. Persons named in these FIRs get compelled to seek protection of the court from arbitrary arrest and have to get prepared to eventually face a criminal trial which might prolong for years. As some say, procedure is the punishment in India and unfortunately these people are being made to undergo these procedural punishments for expressing views which might have ‘offended’ some.

There are two infamous examples of these procedural punishments, one in Maharashtra and another in West Bengal wherein Police chose to interrogate the persons named in the above mentioned FIRs for twelve hours in row. Such rigorous interrogations are rare in relation to non-heinous offences. But all this has been happening on a large scale and all vocal proponents of free speech are celebrating these FIRs and disproportionate interrogations. To understand this complex situation we need to visit idea of free speech in detail along with an emphasis on Indian context.

What is free speech and why it’s important

If expression is genus then speech is its spices. Expression is not exclusively limited to humans only. We all have seen cows affectionately licking the head of their young calves. This is an expression of love. Humans express themselves by multiple ways and speech is one of its forms. Ability to express, by spoken or written words, ones views is indeed a privilege to a person to convey and connect with the rest of the word. From everyday life to political mobilisation, this ability of humans helps them to connect and communicate with the rest. Due to this immense important role played by ability to express oneself by speech all societies believing in dignity of humans have accorded immense respect and protection to this ability.

John Sturat Mill, 19th century English philosopher, supported free speech and propounded the famous theory of ‘market place of ideas’. Marketplace of ideas refers to the belief that the test of the truth or acceptance of ideas depends on their competition with one another and not on the opinion of a censor, whether one provided by the government or by some other authority. This theory has become the basis of various judgements of Supreme Court of the United States of America in relation to First Amendment of the constitution which protects free speech. The phrase “marketplace of ideas” first appears in a concurring opinion by Justice William O. Douglas in the Supreme Court decision United States v. Rumely in 1953: “Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the market place of ideas”. Justice Douglas further emphasised: “First Amendment expresses the confidence that the safety of society depends on the tolerance of government for hostile as well as friendly criticism, that in a community where men’s minds are free, there must be room for the unorthodox as well as the orthodox views.”

 

In India, during the colonial rule freedom fighters were jailed for simply expressing their views on the exploitative nature of foreign rule for years. Our beloved Mahatma Gandhi was jailed for expressing uncomfortable views against the ruling dispensation of the day. Mahatma Gandhi was arrested by the British police on March 10 in 1922 for writing three ‘politically sensitive’ articles in his weekly journal Young India, which was published from 1919 to 1932. Gandhi was sentenced to a six-year jail term. He was released after two years as he was suffering from appendicitis. Similarly, Bal Gangadhar Tilak, Lala Lajpat Rai and Aurobindo Ghose were incarcerated for expressing their opinions.

Post independence, a consensus emerged in free India that one’s right to express his/her views shall be accorded strong protection and accordingly the right to express oneself was given protection as Fundamental Right under Article 19 (1) (a) of Constitution of India, 1950 violation of which gave right to the aggrieved to approach the hon’ble Supreme Court of India under Article 32 of Indian Constitution. On multiple occasions, individual’s right to free speech has been protected by courts and has been accorded very high value. In a judgement passed on 19.05.2020, in relation to one of the FIRs mentioned herein above, in Writ Petition (Crl) No. 130 of 2020 the hon’ble Supreme Court of India speaking through hon’ble justice Dr DY Chandrachud has held as following in relation to free speech:

“32. Article 32 of the Constitution constitutes a recognition of the constitutional duty entrusted to this Court to protect the fundamental rights of citizens. The exercise of journalistic freedom lies at the core of speech and expression protected by Article 19(1)(a). The petitioner is a media journalist. The airing of views on television shows which he hosts is in the exercise of his fundamental right to speech and expression under Article 19(1)(a). India’s freedoms will rest safe as long as journalists can speak to power without being chilled by a threat of reprisal. The exercise of that fundamental right is not absolute and is answerable to the legal regime enacted with reference to the provisions of Article 19(2). But to allow a journalist to be subjected to multiple complaints and to the pursuit of remedies traversing multiple states and jurisdictions when faced with successive FIRs and complaints bearing the same foundation has a stifling effect on the exercise of that freedom. This will effectively destroy the freedom of the citizen to know of the affairs of governance in the nation and the right of the journalist to ensure an informed society. Our decisions hold that the right of a journalist under Article 19(1)(a) is no higher than the right of the citizen to speak and express. But we must as a society never forget that one cannot exist without the other. Free citizens cannot exist when the news media is chained to adhere to one position. Yuval Noah Harari has put it succinctly in his recent book titled “21 Lessons for the 21st Century”: “Questions you cannot answer are usually far better for you than answers you cannot question.” 

 

Tolerating unpleasant speech is vital for survival of democracy:

Allowing only pleasing and comforting speech can’t be sign of a democratic society. Even brute dictators need courtiers and propagandists to further their agenda. However, they don’t allow others and most peculiarly their opponents to do the same. Any unreasonable hindrance to free speech is dangerous for the health of democracy and survival of the rule of law. Democracy survives on heated discussions and differing narratives. Dissent is not only essence but also safety valve of the democracy. When law is used to muzzle free speech in order to silence the unpleasing views then the spirit of democracy dies and the very channel and faculty by which one brings about a change in the democratic set up is curtailed. Such gagging of media and of unpleasant thinkers through the instrument of law is utterly shameful and unwanted.

It’s highly desirable and expected in a democracy that the narrative created by one set of thinkers are challenged and countered by another set of thinkers. Reply of an article or report can always be a befitting article or report. Reply of a ‘distorted’ and ‘misleading’ TV debate can always be a ‘principled fact based’ TV debate. However, when one starts seeking help of favourable dispensations to muzzle and crush the unpleasant opposing views, as has been happening in the aforementioned cases, then one thing becomes obvious. And that is the fact that one has already lost the battle of thought. One has accepted the defeat of their pen and now they are seeking intervention of the cane of law to put fear in the heart of the people with whom they disagree.

At least, right wing intellectuals have something to celebrate in this underlying irony during their constant harassment by hostile dispensations! Such a course of action is disastrous and harms the spirit of democracy. If the opposite dispensation in other states and places starts to reciprocate ‘courtesy’ then further harm to free speech and democracy will happen. Whosoever might emerge victorious in this ‘fight’, the democracy will be the ultimate victim. We Indians need to remember that, as we always have, the pen is mightier than sword and reply to an ‘offending’ article is always an article which places the things in ‘right’ perspective and soothes the easily ‘offended sensibilities’ of the few in society. Trying to fill opponents with fear is not a good tactic, least of all in a constitutional democracy wherein free speech is a fundamental fight.

I will end my case by quoting few words of Congress leader Mr Shashi Tharoor from his piece published by NDTV on 20.04.2014 titled as ‘When Nehru was caricatured by RK Laxman’:

“I am reminded of the time when Jawaharlal Nehru was caricatured by the inimitable R.K. Laxman after the Sino-Indian war in 1962. Instead of being attacked by trolls or hired goons, R.K. Laxman was pleasantly surprised by a phone call from Mr. Nehru. The Prime Minister said to him, “Mr. Laxman, I so enjoyed your cartoon this morning. Can I have a signed enlarged copy to frame?” (https://www.ndtv.com/opinion/when-nehru-was-caricatured-by-rk-laxman-558107)

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