Free Speech’s Relation to Objective Contribution to Public Sphere or Social Discourse
Saturday 7 May 2016
by Aejaz Ahmad
Offend, Shock, or Disturb: Free Speech under the Indian Constitution by Gautam Bhatia; Oxford University Press; 2016; pages: 347 (Hardcover); Price: 750.
Gautam Bhatia’s magnum opus Offend, Shock or Disturb is the most comprehensive examination of the free speech discourse in the Indian Constitution from the doctrinal, comparative and philosophical vantage points. Notwithstanding his legal background, the author has masterfully avoided legal bias around an issue that is political and social in nature. The book is divided into twelve chapters, covering the major philosophical debates around the meaning and nature of right to free speech, the evolution of the constitutional free speech discourse in India, the controversial issues around free speech such as public order, sedition, obscenity, pornography, hate speech, film and internet censorship, defamation, privacy, contempt of court, corporate challenges on free speech and lastly the latest free speech issues such as surveillance, net neutrality, shield laws and copyright. The versatility and beauty of this work is that each chapter is given relevant philosophical, comparative and case-study treatment—all embedded in one highly readable text.
As challenges to free speech in India mount from parochial, social and religious quarters on a daily basis resulting in the charging of public sphere by the communal and conservative elements, Bhatia’s book is a timely reminder that free speech cannot be dealt with in rambling debates and discussions but in a meaningful exercise by courts to rely on egalitarian resources within the Indian Constitution per se, supplemented by rich philosophical lessons from foreign courts to keep with the changing times. To understand the underlying foundations of free speech, our dependence on theories is inevitable.
Theoretical Approaches in the Book
The author makes the Indian Constitution itself as a hub of resources that can be used to deal with the free speech problems, but also suggests to recognise and acknowledge the experiences of the free speech jurisprudence of other countries. The fall of timeless morality and the emerging challenge of moral relativism, especially in multicultural society like India, have made it increasingly difficult to solve the collective problems. Recognising this challenge, the approach adopted in the book is grounded in the Indian Constitution itself also called Constitutional Morality. The author does explore the plausibility of individual and public moralities in India to deal with free speech issues. But finds both of them wedded to serious problems. India is, after all, not an individualistic society. Can then public morality be taken up as the fulcrum? Certain not! First, society per se is dynamic and this dynamism is unreliable. Second, there is nothing called ‘the Indian morality’. Third, at no point of time of history is morality independent, it favours the morality of one over the other.
The author assumes the non-controversial nature of the precepts of equality in the Indian Constitution, which combines both colour blindness with correction of historical discrimi-nation that could well be used as a ground to test. For instance, pornography and obscenity are wrong not because of some moral problem, but because it both subordinates women and cause silencing, stripping of their agency. He calls this approach as anti-subordination. However, the problem with this approach is that it treats constitutional morality as complete and total, independent of outside influence. Living constitutionalism takes influence from the outside world and accordingly modifies the Constitution per se.
The government cannot indulge, the author argues, in paternalism because liberalism cannot claim moral purity for its own sake. If I use the existing political power to undermine the very foundation of the very institutions, then there is nothing within liberalism that deems it illegitimate. It ultimately boils down to the paradox of tolerance. Should the tolerant tolerate the intolerant? This has been recognised by the US courts. Germany has adopted ‘militant demo-cracy’ that refuses to tolerate speeches that are illiberal and undemocratic. Moreover the principle of autonomy has also been recognised as a plausible principle—that is, coercion in any form is unreasonable if it leads to loss of autonomy. Indian courts, the author argues, are still unable to incorporate these developments.
Inbuilt Problems in Free Speech Jurisprudence
The author seeks to highlight the role of theories in court judgments in India related to free speech. Judgments thus made do resolve some issues but expose several others. When courts subscribe to one theory rather than the other, other possible eloquent views are unintentionally avoided. For instance, in Khushboo versus Kanniammal Case (2010), the court pronounced that freedom of speech doesn’t just imply political dissent but also cultural dissent or it is not simply an individual issue but a social issue as well.
Such kinds or arguments are predicated on the view that free speech promotes a democratic culture to which everyone has an equal claim of participation. Bhatia shows that though this view settles one issue, it complicates the others. It puts the copyright issue within the domain of free speech. Thus, while net neutrality is normally a technological issue, the cultural democratic argument used in this case squarely puts it in the domain of free speech.
In tracing the genealogy of free speech in India, the author amazes the reader by directing the focus on a historical paradox in terms of the role reversal of the Indian nationalist leaders with respect to free speech. Ironically, the national movement favoured an unrestricted freedom of speech and expression during the freedom struggle but wanted to restrict it in post-independent India perhaps because of the urgency of ensuring unity. But the question is: what explains its persistence now? He carefully examines the wording in 19 (1,a,) to which 19(2) is subjected to. To understand how it changed from ‘undermining/overthrowing the public order with incitement of an offence to the late introduction of reasonable requirement.
General Problems in Indian Free Speech Jurisprudence
Over-breadth, Vagueness, and Chilling Effect:
In the first five chapters, the author anatomises controversial issues such as sedition, public order, anti-terror, and national security and argues that their enshrinement in the Indian Constitution is marked by over-breadth,vagueness, and chilling effect. Firstly, the over-broadness gives ample scope to the government to throttle both speech and its expression. For example, ‘reasonable restrictions’ was bound to be misused in coercive legislations such as TADA and POTA because of this over-broadness. Bhatia explores Section 295 (A) of IPC which criminalises insulting of religious beliefs when such insult is deliberate and malicious. In a case like Ram Lal Modi versus State of UP, the court said that it covered all issues where the acts have a calculated tendency to cause public disorder. Bhatia argues that the problem with such statistical probabilities is that it provides state privilege to anyone who has the capacity to break the law with impunity. Often people resort to violence on the pretext of hurt which frequently goes unheeded.
Second, statutes suffer from vagueness in that common people remain ignorant about what is allowed and what is permitted. Third, it sometimes runs the risk of arbitrary application of laws by non-elected police like in the Kartar Singh versus State of Punjab case. Fourth, the jurisprudence problematic has caused chilling effect on speeches. It pushes one into self-surveillance or self-censorship to make sure that the law is not crossed which consequently causes chilling effect even on a legitimate speech. These are some of the inward problems in the provisions and the way courts pursue them.
Passive Role of Indian Courts and the Malicious Interests of the Governments:
The author also notes that the government too has an interest in throttling certain speeches. Because of the judicial deference, the government acts as its own judge and it is the likely that the biases, interests in self-preservation and limited fore-sight it has got, the government would exaggerate or overestimate the threat. In Other case, Vijendra versus State of Punjab, the court creates the requirement of ‘prior restraint’ and pre-emptive ban. Using this excuse, a number of books, films have been banned. Due to judicial deference, this problem has been justified over time. The author notes that when the state punishes for the considered actions of another autonomous individual, it mis-attributes responsibility. The responsibility for committing an attack on the person is put on the person who incites, not the one who actually commits it!
The author highlights some other problems like the existing approaches to hate speech. If a book is banned, the burden of proving its plausibility is placed on the individual who wrote it, and not those who oppose it or the state per se. Even the courts of India shy away from actual interrogation of its plausibility. This has seriously harmed free speech and expression in India. In the absence of any reasonable standard, over time, judges have added their own opinions in an otherwise empty vessel of subjectivity. What is even more reprehensible is that it privileges religious believers and their sentiments over those of non-religious, atheists or agnostics whose ‘sentiments’ are relegated to secondary importance. In such cases, Indian courts have failed to ensure equality before the law to prevent such discrimination.
In one of the provoking analysis, the author examines the controversial nature of sedition which has been used by governments in India not just to kill political dissent, but also clear the meaning opposition to large scale projects. While the issue of sedition was mooted in the Constituent Assembly debates, there was no particular intention to continue it. Eventually, courts rested on public disorder and reasonable anticipation of it as the gist of it. As the High Court decisions on sedition had ranged from narrow to broader views, the Supreme Court ultimately decided that any law that is in the interest of all shall continue thereby failing the tests of causation and proximity. In assessing its possibility of repealing, the author suggests that unless courts depart from passive deference to an active interrogation of the reasonableness, there would no respite from such controversies in the future especially when Parliament is reluctant to repeal the law per se. Moreover, it will continue to be used in undemocratic ways.
Corporate/Economic Challenges to Free Speech in India:
If the Constitution is an overtly liberal individua-listic one as in the US or Britain, the question of its substantiveness is not expected, but if the Constitution envisages a substantive vision of democracy on strictly egalitarian principles as is the case in India, then the question of who determines the access to an infrastructure of speech is inevitable. The author raises this question by focusing on economic factors that influence the freedom of speech which ultimately has pellucid bearing on substantive democracy with equal access of all to the very infrastructure of speech. Given the concentration of the media in fewer hands, the very access is determined by those who eventually have this monopoly such as Network 18. This question still goes unanswered in India in both the Supreme Court and Parliament.
Newly Emerging Issues:
The book also explores in its last chapters the newly emerging issues such as net neutrality, surveillance, copyright laws, and shield laws that generally belong to the free speech domain, but are treated with respect to other laws perhaps because they have emerged quite recently in the legal and political realm. However, these issues are still in their embryonic forms.
In sum, from a constitutionalist parlance, Offend, Shock or Disturb is exposition of engagement between Originalist and Living schools of constitutionalism in India. The author acknowledges that as the question of what constitutes free speech remains wedded to perennial ambiguity, the test of a meaningful speech is not its intuitive understanding but what it objectively contributes to the public sphere or social discourse. Without this acknowledgement, as the author rightly warns, the recurrent issues in India such as flying a flag, doctor-patient relationship, consumer protection laws will continue to remain unrelated to free speech questions and hence the unnecessary ruckus around them.
However, the problem of what constitutes objective contribution as different from the subjective one in the post-modern age of ours has not been addressed. It can arguably be said that the challenge of subjectivism in a multi-cultural society will persist.
The reviewer studied Political Science at the Department of Political Science, University of Delhi. He is the contributing author of the book, Political Process in India. His forthcoming book, Modern South Asian Thinkers, is being published by Sage. He has contributed earlier to Economic and Political Weekly and Mainstream.