How free can free speech be?

Opinion » Comment    February 28, 2016    Updated: February 28, 2016 01:09 IST

    K. Venkataramanan

Illustration: Satwik Gade

A lucid and detailed examination of the law of free speech in India, the book also makes a case for ‘constitutionalising’ all forms of speech.

A decade ago, Tamil Nadu was as agog about a looming threat to freedom of speech and a pervasive atmosphere of intolerance as the entire country is at the moment. Assorted groups of Tamil nationalists, protectors and preservers of Tamil culture were policing the opinions of public figures, especially from the film industry. Open threats, street demonstrations and waving of footwear and broomsticks indicated that supposedly offended Tamil society was out to protect its culture from prurient attacks. Actor Khushboo was one of the main targets after she made some remarks in a magazine interview on the prevalence of premarital sex. Nearly two dozen criminal cases were filed across Tamil Nadu by offended complainants charging her with obscenity. The final outcome in her favour in the Supreme Court five years later was a landmark decision on obscenity law.

Reasonable restrictions

Shortly after the controversy broke out in 2005, a public opinion forum for the free exchange of views and ideas was launched in the State, with a rider that the forum’s promoters themselves would not privilege one view over another, and there was no founding philosophy except a general commitment to freedom of expression. “There is no collective policy for the forum, and it will not even publicly defend freedom of expression, as its users need not necessarily be only those who believe in free speech,” they said. It was quite an interesting way to promote freedom of expression — by acknowledging individual autonomy to the point of not expecting its users to even believe in that very freedom.

Does the state acknowledge such autonomy among its citizens and repose faith in them to make their own choices regarding speeches, writings, works of art, films and plays? Obviously not, given the number of “reasonable restrictions” that are placed on free speech in India, many of them reflecting an official philosophy that believes that the government alone can, or at least has a duty to, decide what is ‘good’ for the people. Hence, the many restrictions on expression based on, among other grounds, public order, decency and morality. Gautam Bhatia would classify such curbs as instances of ‘legal paternalism’ or ‘legal moralism’. For, according to this author of a lucid and detailed examination of the law of free speech in India (Offend, Shock, or Disturb: Free Speech under the Indian Constitution, Oxford University Press, Rs.750), Indian freespeech jurisprudence has two broad approaches — ‘moral-paternalistic’, a view that sees people as inherently corruptible and prone to violence and who cannot be trusted with too much freedom, and ‘liberal-autonomous’, an approach that sees people as individuals capable of making decisions on their own lives and one that allows only limited restrictions on what they can speak, see or hear.

Does not our Constitution guarantee all of us freedom of speech and expression? If both freedom and its curtailment are in an everlasting delicate balance, what exactly is our free speech philosophy? If freedom is related to politics and democracy, does it come under political philosophy? Or is it moral philosophy concerning the individual and the human self? “We need a theory, or theories of free speech,” says Bhatia. The theoretical framework for his analysis of the evolution of free speech jurisprudence covers a vast expanse. Free speech is a means to the truth; a pursuit of individual self-fulfilment and an important means by which democratic self-governance is made possible, he argues. Its role in personal, social and political life inevitably brings it into conflict with the state, with diverse shades of opinions in the marketplace of ideas and the ways in which free expression impacts the established order.

The title may suggest that the author is arguing for an extreme view of free speech: as the right to do all that these three verbs encompass, but in actuality he is doing something far more nuanced. He is arguing for ‘constitutionalising’ all forms of speech; that is, making as much of the law speech-protective as possible, and what little is incapable of protection must be curbed only in a manner allowed by the Constitution. To put it differently, if some restrictions are inevitable, their basis should be sought only within the values of the Constitution, or in ‘constitutional morality’, as he puts it, and not in vague appeals to transient notions of social mores, decency and morality. For instance, a restrictive hate speech law or one that seeks to protect an oppressed community from insult need not derive its constitutionality from a mere content-based view of the ‘feeling of hurt’ caused by some words or images. Rather, it could be rooted in a notion of moral equality among citizens, and with reference to women, from the angle of prohibition of gender subordination.

Historical context

Many will be familiar with the basic formulation of free speech in India as a set of freedoms matched by a set of reasonable restrictions. However, not many may know that this was not the original framework. The early judgments on Article 19(1)(a) were too speech-protective for the rulers’ comfort, and the ‘reasonable restrictions’ were introduced through the first amendment. It is equally interesting to learn that one of the grounds for curbing free speech was ‘sedition’ in an early draft, drawing derisive comments from some members of the Constituent Assembly. Sardar Patel, who chaired the Fundamental Rights Sub-Committee, moved for the deletion of the proviso the very next day. However, the word ‘sedition’ made a mysterious comeback in the draft Constitution in 1948. Once again, it required quite a fight from members to get the proviso withdrawn. Thereby hangs a tale of how rulers, colonial or democratic, have always wanted to retain the power to prosecute for sedition.

If one wants to know the working of the law related to dominant free speech issues such as public order, morality, obscenity, film censorship, defamation, sedition, press freedom and Internet curbs, this book will not only provide valuable historical insight, but also the standard tests that courts use to determine the validity of such restrictions. Thus, you can see the shift from the original standard for obscenity of ‘a tendency to deprave or corrupt’ a person susceptible to prurient taste (Ranjit Udeshi, 1965) to more modern ‘contemporary standards that reflect the sensibilities as well as the tolerance level of the average reasonable person’ (Khushboo v. Kanniammal, 2010). “... In the long run, such communication prompts a dialogue within society wherein people can choose to either defend or question the existing social mores,” the Supreme Court said, while quashing all the complaints against Khushboo.

Bhatia suggests that applying some of the recent principles in free speech jurisprudence, there is a clear case to strike down the penal section on sedition to cases, as indeed two high courts had done before the Supreme Court upheld Section 124A in 1962. The Punjab and Haryana High Court had applied the classic test of ‘overbreadth’ (a provision so ‘overbroad’ that promoting disaffection is criminalised both when it would lead to a public order breach — a permissible restriction — and when it would not) and held that it was unconstitutional.

The ‘chilling effect’ of excessive curbs such as the threat of exorbitant awards as damages for defamation, the casual resort to a ‘decency or morality’ standard based on a section of public opinion, or succumbing to the threat of violence by a purported offended section of society — popularly called the ‘heckler’s veto’ — are issues that all citizens should familiarise themselves with. For often, what is at stake is not merely the freedom of political activists, writers and journalists alone, but that of every citizen, voter or resident.

venkataramanan.k@thehindu.co.in

Source: thehindu

Totalitarian regimes come to power because good people keep silent: Admiral Ramdas

Student Protests

The former Naval chief speaks up about the crisis triggered by police action in JNU, and the question of nationalism.

L Ramdas  · Yesterday · 07:45 pm

I have been a proud member of the uniformed fraternity for nearly 45 years, retiring as the head of the Indian Navy in 1993. The present turbulence in our top academic institutions together with continuing manifestations of mob violence, totalitarian behaviour and intolerance, impel me once again, to speak up and share my concerns through this open letter. My two recent letters to the President and Prime Minister have not elicited more than a routine bureaucratic response. I am well aware that I may be one of the few from the fraternity of retired military veterans who continue to take public positions which might not always be in support of government policy. However, I see this is both a right and a duty of a former serviceman and citizen like myself. I am well aware that serving members in uniform cannot express themselves as per the service conduct rules. However, we veterans out of uniform certainly can, and must. If people like myself are quiet today, my grandchildren will ask me, “If not you then who”, “if not now, then when”, Thatha?

I refer to the train of events that began with the tragic suicide of Rohith Vemula at Hyderabad Central University last month and continues today with the unresolved Jawaharlal Nehru University saga. The unprecedented entry of the police into the campus, the ensuing high-decibel, high-voltage “trial by media”, and subsequent student arrests under serious charges ranging from sedition, anti-nationalism and terrorism, has hit headlines across the country. This has created an avoidable polarisation of views thanks to the entire episode having been handled with a lack of sensitivity. It has been blown into a full-scale crisis where students are being demonised and conspiracy theories abound. Thousands of students, civil society groups as well as journalists have been out on the streets of Delhi taking out some of the biggest, peaceful rallies seen in recent times.

The nation-building effort

Let me briefly rewind to my personal profile to enable you to better understand where I am coming from.

I joined the fledgling Indian Navy in January 1949 – barely 16 months after we gained our Independence. It was a time of great expectations, big dreams and opportunities. The selection for entry into the armed forces of a resurgent India at the end of the sustained struggle against British colonial rule, was heady indeed for a young fifteen year old. Those 45 years in the Navy provided me with a panoramic view of events that have unfolded across the world stage. And I certainly had a ringside view of events in an India that had been traumatised by the unprecedented brutality and slaughter of Partition – the scars of which linger on in my personal, and our collective, consciousness on both sides of our borders.

Brick by brick, step by painful step, leaders and citizens together created and built a vision of a new and a free India. This vision, the product of long and tough debates within the Constituent Assembly, sought to encompass the huge and often conflicting diversities that had to be accommodated within the framework of a path-breaking Constitutional document. Incorporating the often divergent views of an impressive range of thinkers and visionaries, the Indian Constitution firmly rejected a narrow, exclusionary monoculture in favour of a revolutionary definition of nationhood that was inclusive, confident and transformative under the guiding hand of Babasaheb Ambedkar.

Armed forces and the Nation

The armed forces of this newly-independent nation were an equal part of this combined effort of nation-building in a variety of ways – trained as we were to conduct ourselves with discipline and professionalism combined with compassion and a sense of our common humanity and purpose.

The unspoken and sacred credo has been that those in the armed forces will remain apolitical. Indeed, we forgo many of the normal rights as citizens enshrined in the Constitution when we join the armed forces. The accepted practice of honouring the principle of political control over the armed forces has been followed without exception since Independence. However, the quid pro quo of this arrangement, unwritten as it is, implies that the government of the day will discharge its responsibilities towards the people [including the military] with honour and integrity.

After retirement, each of us uniformed persons reverts to being a citizen of India, with all the implications of rights, duties and responsibilities that citizenship implies. The Regulations Navy/Army/Airforce are no longer in force. Whether in or out of uniform – we veterans have valued our right to vote – the hallmark of our democratic polity. Exercising our vote does mean that each of us would also choose a particular political position or perspective. The four decades of service in a maturing yet turbulent democracy most certainly impacted my political thinking post-retirement.

Citizens must engage

After my retirement in September 1993, I moved to a village in Alibag, Maharashtra, where I practice organic farming and continue to live till today. Living in rural India has been a total re-education, and one which has given me profound insights. I have shared the ups and downs of the life of an ordinary farmer – influenced by the vagaries of weather and pollution, local politics, threats of being evicted for so-called development under the Special Economic Zone, and much more. My years in uniform and first-hand experience of two wars, together with a closer understanding of the imminent agrarian crisis which affects some 70% of our population, has directly influenced my belief that true liberation or “azadi” from poverty and hunger, will only come when and if the elites of this land demonstrate greater integrity and less greed. Recent disclosures by the Reserve Bank of India in response to an RTI question by the Indian Express revealed that between 2004 and 2015, public sector banks wrote off bad loans amounting to more than Rs 2.11 lakh crore. It has been reported that nearly half of this amount was written off between 2013 and 2015. Surprisingly, neither this information nor its impact on the economy has yet been divulged by the finance ministry. And yet we have heard strong criticism about the petty amounts granted for education of scholars from weaker sections, in JNU and other universities, as examples of taxpayers money being ill spent! We seldom question the fact that loans too come from taxpayers money.

To achieve a more just society based on sustainable development, we must build peace through better neighbourhood management. This means finding political solutions to existing problems. Then alone can we reduce our spending on armaments, regulate consumption, balance energy demands, and provide citizens with food, shelter, education, health and employment. I have led, and been part of, a sustained movement against Special Economic Zones in Raigad, Maharashtra, and continue to push initiatives for renewable energy. Concerns over safety, cost and waste disposal, have contributed to my active engagement with the movement for Nuclear Disarmament and to end nuclear power by finding carbon free and nuclear free solutions. Efforts to strengthen the peace dividend have led me to take on leadership of organisations like the Pakistan India Peoples Forum for Peace and Democracy and India Pakistan Soldiers Initiative for Peace. Both these organisations have promoted people-to-people contact and better relations with Pakistan. I am also totally opposed to capital punishment and the death penalty, as also the continued imposition of the draconian Armed Forces Special Powers Act – about which I have written and spoken publicly in several fora.

In my view, each of the above, constitute areas of engagement which we as citizens not only have a right, but a duty, to address, even if it is against the policy of the government of the day. Does any of the above make me, or anyone else, anti national? Or less patriotic? Or a desh drohi?

I believe not.

My stand on this derives from the principle that political parties and governments alike are bound by the Constitution of the land. Every citizen has the right and the freedom to think and express views without fear of reprisal. The obsolete colonial law of sedition has no place in a modern democracy.

Therefore the question arises: Why are we arraigning a Rohith Vemula, a Kanhaiya Kumar and an Umar Khalid under charges of being anti-national, seditious or indulging in terrorist activities? From available material it appears that these three young men were only acting to further the objectives outlined in our Constitution and not indulging in any anti-national activity.

Who defines nationalism?

In some ways, it is a good thing that the death of Vemula, the arrest of Kumar and the witch-hunt against Umar Khalid, have actually led to a public debate about the definition of national and anti-national, as also of the deeper and more intractable issues around caste, religion and discrimination in our society. The linked question regarding who, if anyone, has the right to decide on my nationalism or lack of it, is equally vexed and needs a longer, more mature discussion. To the best of my knowledge, this has not been done since Independence. The existing laws and practice on this are largely inherited from the colonial period and were never addressed in a contemporary framework. This is critical for a mature democracy. Jingoism, waving the national flag, and shouting slogans, are not equivalent to a certification of patriotism. Upping the ante and making allegations of seditious behaviour and terrorist ties may not pass judicial scrutiny. Many have publicly disagreed with the sloganeering and forms of protest, but none of this is new or radical. Certainly it is ludicrous to think that a few students can threaten the unity of the country, as is sought to be established by some media houses and their invisible paymasters.

If anything has been a matter of deep concern to someone like me, it is the spectacle of alleged members of the legal profession being allowed to run amok in the courtroom and to both threaten and actually assault scribes, students, teachers and Kanhaiya Kumar. All this, while the large numbers of police personnel present apparently stood by and did nothing from all accounts. This is unacceptable from a uniformed, and a so-called disciplined police force.

I have been through the wide range of written reports, and audio-visual material available in the public domain on the Jawaharlal Nehru University and Hyderabad Central University imbroglio. The real tragedy to me lies in the fact that this entire exercise of raising the alarm on foreign funded, possibly terrorist and seditious activities, has been orchestrated in order to demand the shutting down and “sanitising” such a prestigious institution. One is forced to conclude that this smacks of a “false flag exercise”. And this is serious. By all means investigate the matter – allow the university officials to handle the students with appropriate disciplinary action. But great discretion and caution must be exercised before calling in the police, and worse, to make serious charges of sedition.

The way ahead

Those who are leading the clamour for shutting down and/or “sanitisation” of JNU seem to have no idea of what this implies, and are exhibiting a frightening tendency to follow the mob blindly.

This might be a good moment to remind ourselves that in addition to being held in high esteem internationally, JNU is also among the few universities in India that recognise the courses run by military institutions like the National Defence Academy, the National Defence College, the Naval Academy and others. Ties between service institutions and university departments have been carefully forged in order that our military personnel continue to benefit from these interactions and remain at the cutting edge of the latest strategic thinking. There are several service personnel who have had the benefit of attending academic courses at JNU and indeed are among the alumni. Civil servants and police officers are also in a similar category. I have intentionally mentioned this so that my band of brothers and sisters amongst ex-service veterans will carefully weigh the consequences of any hasty actions such as returning degrees and awards.

I have outlined at some length the many reasons for why I write this note today. It is imperative that senior public figures like myself and others speak out, to raise an alarm, before it is too late. Recent history has shown us that totalitarian regimes have come to power because good people chose to keep silent. Above all else it is imperative that we must preserve our democratic spaces and the freedom, indeed the right, to question, to dissent and to debate – especially in our institutions of higher learning. JNU has been a frontrunner in producing thinkers and professionals who are not scared to speak out. Frankly, after listening carefully to the speech of the young union leader – Kanhaiya – I was left feeling reassured that if a young man in his twenties can speak with such compassion, intellect and passion about the real challenges and dangers we face in this land, all must be well in this complex and disparity-riddled country.

Far more than saluting a flag (which, of course, I continue to do with honour and respect), it is the thoughts articulated by young idealists like a Rohit Vemula, a Kanhaiya Kumar, a Shehla Rashid and yes an Umar Khalid all of whom together with the many unnamed and unsung women and men across this country, embody the true spirit of nationalism and patriotism. We must collectively ensure that we not only protect those who have not yet been pushed to take the extreme step like Rohith Vemula, but ensure that justice is promised and done to those presently in custody, or forced into hiding, for fear of their lives.

In the ultimate analysis, human security is the best guarantee for national security.

This article was first published in The Citizen.

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