Home / Opinion / The right to un-free speech?

To the dismayingly frequent blows to freedom of expression in India, there is now one more, in the form of four questions a Supreme Court bench has asked. Justices Dipak Misra and C. Nagappan are concerned over a statement of the controversial Uttar Pradesh minister Azam Khan, who said that a ghastly gang-rape case in Bulandshahr was “a political conspiracy."

In July this year, a Noida-based family was on its way to Shahjahanpur for a funeral when it was stopped on a highway by armed thugs who forced the family out of the car. They then dragged a woman and her minor daughter away and raped them, while the men were held at gunpoint.

Instead of sympathizing with the victims and promising that the police will arrest the culprits, Khan called the incident a conspiracy against the Samajwadi Party government in Uttar Pradesh.

The rattled family moved the Supreme Court, saying that the minister’s insensitivity had shattered their faith in the judicial process, seeking for the case to be transferred from Uttar Pradesh to Delhi.

In a judicial system without juries (which can get swayed by public opinion), it is reasonable to expect that judges won’t change their minds because of politicians’ remarks. But the judges asked: “Why should people in power make such statements?" The bench then appointed senior counsel Fali Nariman as amicus curiae, or “friend of the court", and posed four questions:

“(i) When a victim files an FIR (First Information Report) alleging rape, gang rape or murder or such other heinous offences against another person or group of persons, whether any individual holding a public office or a person in authority or in-charge of governance, should be allowed to comment on the crime stating that ‘it is an outcome of political controversy’, more so, when as an individual, he has nothing to do with the offences in question?

“(ii) Should the ‘State’, the protector of citizens and responsible for law and order situation, allow these comments as they have the effect potentially to create a distrust in the mind of the victim as regards the fair investigation and, in a way, the entire system?

“(iii) Whether the statements do come within the ambit and sweep of freedom of speech and expression or exceed the boundary that is not permissible?

“(iv) Whether such comments (which are not meant for self protection) defeat the concept of constitutional compassion and also conception of constitutional sensitivity?"

Azam Khan’s remarks are in poor taste, made with the cynical intention of protecting his administration from credible criticism about the deteriorating law and order situation in Uttar Pradesh. For him, the family at the centre of this tragedy is peripheral; if they feel hurt or fearful, that’s all collateral damage. The family is rightly aggrieved and understandably feels apprehensive about getting justice in the state.

There are laws in India to regulate public comment on matters before court and there are firmer rules dealing with comments involving rape cases. But rather than rely on those, the bench has asked curiously leading questions, which are broad in scope and yet drawn from one specific instance.

Take the question of whether someone is “allowed" to comment on a case involving a “heinous" crime. Freedom of expression is a right, not a privilege; it is not for the state to extend it as a benefit by “allowing" the people to use the right. The victims have lost faith in the court of one state, but where have they suggested that they don’t trust “the entire system"? They do trust the system, which is why they want the case to be moved to another state.

As it is, freedom of expression is not absolute in India; there are “reasonable restrictions" to the right, which narrow the scope of the right considerably. Through laws and guidelines over time, the “boundary" indicating what is “permissible" to say has been shrinking. In the present case, which specific reasonable restriction has been violated?

And finally, what is “constitutional compassion" and “constitutional sensitivity"?

Perhaps the question is moot; after all, in recent years, the court has uncovered a right to “reputation" and stated that “historically respectable personalities" need protection from insults.

A feature of Indian courts is that they have often seen beyond the letter of the law. Sometimes that has expanded the scope of freedoms—think of a judge turning a postcard into a petition to hold the executive to account. But in some cases, judges have assumed the role of village elders, setting parameters that limit freedoms.

The guiding principle of the much-amended Indian Constitution (more than 100 amendments in nearly 70 years) is its basic structure, which includes fundamental rights.

How many erosions can the right to free expression withstand before it gets transformed into something else?

By introducing notions like constitutional “compassion" and “sensitivity" not found in the Constitution itself, the bench raises the risk of overstepping its role and circumscribing freedoms further. That can be good neither for democracy, nor for justice.

Salil Tripathi is a writer based in London.

Your comments are welcome at salil@livemint.com. To read Salil Tripathi’s previous columns, go to livemint.com/saliltripathi

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