Home / Opinion / Columns /  We should review our approach to curbs placed on free speech

The case against Sudarshan TV, which had started a programme under the title “UPSC Jihad", could be a test case for the Supreme Court’s approach to free speech. A three-judge bench headed by Justice D.Y. Chandrachud has posed questions to the channel that effectively limit free speech in the media. Just because someone calls it “hate speech", a term yet to be defined by the courts, does it automatically qualify the show for a pre-broadcast ban?

The issue seems to have got muddied by the bench’s implication that it could intervene when the offended party is a community rather than an individual. One news report quotes Justice Chandrachud thus: “If it was a balance between free speech and the dignity of an individual, we can tell him to go file a civil suit. But here, the balance is to be drawn between free speech and a community." One would have thought that it is the powerless individual who needs protection more than a community. This also appears to contradict a 2017 order of another bench, then headed by former Chief Justice of India Dipak Misra, of which Justice Chandrachud was a part. In that case, the Vysya community, which felt slandered in a book by Kancha Ilaiah Shepherd, was told by the bench that there was no case for a ban. So, even a small community got no protection from Ilaiah’s free speech rights in that case. The community involved in the Sudarshan TV case is around 200 million strong.

A ban on airing the rest of the show’s episodes, or a curtailment of the channel editor’s right to air content that s/he considers fit, would mean that free speech is subject to arbitrary censorship at the hands of the government or judiciary. If offensive speech is not to be allowed, either it must be more clearly defined so that law enforcement is effective, or it must not constitute a breach of free speech rules.

Unfortunately, India’s record on this matter offers little cause for comfort, with both the courts and the executive deciding cases based on who (or which group) is seeking a ban on a specific book, news item, movie or TV show. The merits of the arguments in many of these cases have not always been clear to observers.

India does not have blasphemy laws, but Article 19(2) is so wide-ranging in terms of the executive’s ability to curtail free speech that it effectively imposes a sacrilege constraint whenever a community seems willing to take to the streets in protest. This could imply that communities that tend not to restrain blasphemy are at a comparative disadvantage. While some caste groups have indeed staged public protests against movies or books, it is rare to see crowds creating a ruckus on the streets in response to, for example, some perceived slight to those revered by the country’s majority community. Barbs that hurt religious sentiments do get hurled around in the name of free speech, and the consequences have been terrible in far too many cases, but we still do not have a well-settled way to deal with the problem.

The point is this: We can either have the law curtailing free speech on some clearly defined parameters that apply to all offences of the same nature, no matter who the target may be, or none at all (with only incitement to violence being criminalized).

It would be good if the Supreme Court used the Sudarshan TV case to clearly define what constitutes blasphemy or hate speech. This clarity is necessary. The judiciary often makes broad statements on upholding free speech even while clamping down on it on a case-by-case basis. Subjective variation in India’s approach to free speech must end.

This may be as good a time as any to rethink Article 19(2), which restricts free speech by giving both the executive and the judiciary endless grounds for shutting up people. This article, introduced by the Nehru government almost as soon as the country had adopted its Constitution in 1950, considers the curtailment of free speech in all the following cases: “Interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence." Barring the first two reasons and the last one (the integrity of India, security of state, and incitement to violence"), none of the other constraints sound like “reasonable restrictions".

It is worth recalling that even in British India, where free speech was not exactly a calling card for our colonial masters, leaders of the stature of Mahatma Gandhi and Babasaheb Ambedkar could make sweeping statements about communities without being hauled over the coals for what they said. Both, for example, are on record as having said a few things, though in particular contexts, about some community or another that were uncomplimentary.

Crude generalizations are often made in public discourse, and this has been so for a long time. If some of the words of Gandhi and Ambedkar were to be cases that came up before a bench of the Supreme Court, it’s easy to surmise that they might have been asked to excise their statements because a community is involved.

R. Jagannathan is editorial director, ‘Swarajya’ magazine

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