The need for a debate on free speech

It is an inalienable right. The Constitution’s role is not to grant it, but to protect citizens from any attempt by the state to infringe upon it


In India’s political and civic life in general, freedom of speech has been conditional and the definition of nationalism narrow. Illustration: Jayachandran/Mint
In India’s political and civic life in general, freedom of speech has been conditional and the definition of nationalism narrow. Illustration: Jayachandran/Mint

According to Union finance minister Arun Jaitley, speaking at the London School of Economics recently, there is a need for debate on freedom of speech in India. He is correct, but not in the manner he intended. In the fracas ignited by the events at Ramjas College, leaders in the Bharatiya Janata Party (BJP) like Jaitley, minister of state for home affairs Kiren Rijiju and defence minister Manohar Parrikar have indicated that the Central government perceives freedom of speech as a right granted by the state. This is a monumental misrepresentation. The right to free speech and expression is inalienable. The Constitution’s role, therefore, is not to grant it, but to protect citizens from any attempt by the state to infringe upon it. If there is indeed to be a debate—and on the evidence of the past few days, one is sorely needed—it must be on why the political establishment and swathes of society mistake this fact.

The violence at Ramjas College can be traced back to the events at Jawaharlal Nehru University (JNU) in February last year. Then, Kanhaiya Kumar, Umar Khalid and Anirban Bhattacharya, among others, had been charged with sedition for allegedly raising “anti-national” slogans during an event on Kashmir. Last month, Khalid was invited to an event at Ramjas College on the culture of protest—the trigger for violence perpetrated by the Akhil Bharatiya Vidyarthi Parishad (ABVP). Then, as now, the government’s role should have been confined to ensuring that no violence took place—and if it did, that the perpetrators were held to account. Then, as now, the government failed. Union home minister Rajnath Singh kept Jaitley company in making ill-considered remarks that betrayed a fundamental lack of understanding of the nature of a liberal democracy.

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At both JNU and Ramjas—and in the country’s political and civic life in general—freedom of speech has been conditional. A narrow definition of nationalism—one that makes questioning the Afzal Guru verdict or debating the Indian state’s role in Kashmir tantamount to collaborating with terrorists—imposed by the government and used as a yardstick for measuring a citizen’s allegiance to the state is immensely dangerous. As dangerous—and unfortunately controversial—is the fundamental assumption that all speech that is in fact against the state must be illegal.

If the BJP must currently take the blame for the former, the latter stems from a Constitution that falls short of protecting citizens as it should. That original sin can be laid at the feet of the founders of republican India. The original Constitution guaranteed free speech with few, if any, caveats. The Central and state governments of the day soon came to regret this, repeatedly restrained by the courts in restricting political speech and writing they deemed dangerous. Luminaries such as Jawaharlal Nehru, Vallabhbhai Patel and the most staunchly liberal of them all, B.R. Ambedkar, moved to curtail freedom of expression. Shyama Prasad Mukherjee, who led the opposition to the Bill, can be credited for the first amendment to the Constitution imposing only “reasonable restrictions” on free speech and not “restrictions” as Nehru and Patel had wanted.

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They at least had an understandable motive: India was a nascent republic riven by various internal conflicts that threatened its existence. Their inheritors have no such excuse. The BJP may be the culprit du jour, but no party is blameless. The mainstream Left was brutally violent in its imposition of ideological and political conformity in West Bengal for decades. The Congress has used the nationalist cudgel to belabour its opponents when convenient, and attempted to curb free speech on numerous occasions. See the Rajiv Gandhi government’s ban on Salman Rushdie’s Satanic Verses, or the United Progressive Alliance’s draconian Section 66A of the IT Act and attempts to gag content-hosting companies like Google and Facebook. They would do well to examine the shallowness of their convictions when they take on the BJP on this issue now.

The judiciary also has a patchy record at best. On occasion, it has championed free speech, such as by striking down Section 66A. But in rejecting challenges to the antiquated Section 499 of the Indian Penal Code (IPC) criminalizing defamation, in reading Article 21 of the Constitution to grant a fundamental right to reputation that acts as a check upon free speech, and on various other occasions, it has shown its ambivalence towards freedom of expression.

The right to free speech is the right to offend, even to antagonize. A combination of retrograde legal provisions—like the colonial-era Section 124A of the IPC, creating the legally punishable offence of sedition—and poor leadership has obscured this fact, with civil society following suit. By the resultant cockamamie standards of free speech, Ambedkar would no doubt run afoul of the law for his trenchant criticism of the Hindu faith. Rabindranath Tagore would be charged with sedition for questioning the idea of nationalism and the nation-state. Eminent American jurist and judge Benjamin N. Cardozo once said, “Freedom of expression is the matrix, the indispensable condition, of nearly every form of freedom.” There’s a good starting point for Jaitley’s debate.

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