Freedom To Offend
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The valedictory flag marches around the Supreme Court’s striking down Section 66A of the Information Technology Act greatly exaggerates the immediate benefit that will flow to those with a passion for free speech. While it will surely keep kids who disapprove of traffic stopping political funerals out of jail, it won’t necessarily allow us to celebrate a greater diversity of opinion without serious risk to ourselves. In sum, there may be more deception than deliverance here. Allow me to explain why I say this.
The main thing to understand about Shreya Singhal v Union of India is that it leaps across several oceans to draw inspiration as never before from the American vision of personal liberty (as opposed to the more conservative Indian evolution of it). This means that the Supreme Court is comfortable with the idea that liberty must be valued “both as a means and as an end”; also that “liberty is the secret of happiness and courage the secret of liberty”. It approves the idea that the “freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth”. It endorses the idea that “to justify suppression of free speech theremust be reasonable ground to fear that serious evilwill result if free speech is practiced.” These are not Indian ideas, not thus far anyway. Naturally, these words have created the hope for liberal deliverance.
These words have also paved the way for what appears to be a great paradigm shift to enter stage left. The Supreme Court has now proceeded to divide speech of which freedom is sought into one of three categories: discussion, advocacy and incitement. The court does not dwell long on these distinctions but it does go on to set a great new rule: the law cannot restrict speech unless it reaches the level of incitement. That’s a leap of faith every liberal democrat will welcome with delight.
But then, what does incitement mean, and incitement against what? Article 19(2) of our Constitution sets limits to our freedom of speech “in the 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." Clearly, the incitement has to squarely address one of these restrictions. Let’s look at the implications of this. A professor posting ironic cartoons about Didi, or children complaining about bandhs for funerals, do not threaten the sovereignty of India, the security of the state, friendly relations with foreign states, decency or morality, nor do their actions pertain to contempt of court, defamation or incitement to an offence. All you then have left to bang heads with is this dangerous beast called ‘public order’. That’s exactly where the arguments before the Supreme Court ended up. All that the Government of India could argue was that Section 66A of the IT Act promoted public order. The Supreme Court was seriously underwhelmed with this ingenuity because to buy into that formulation, it wanted to see another American test apply: “clear and present danger”.
So what is “clear and present danger”? At the end of the day, it comes down to this. Not the world’s most extreme protection of free speech will allow a man to falsely scream ‘fire!’ in a house full movie theatre. That is the point at which the liberal celebration after the pronouncement of the Supreme Court judgment comes to a grinding halt. In the context of Section 66A, the court reached back to the Rangarajan test [(1989) 2SCC 574]and put it thus. Freedom of speech is protected “unless the situations created by allowing the freedom are pressing andthe community interest is endangered”. What we have then is freedom of speech hanging in the balance with a clear and present danger of public disorder. Reasonable as this may sound on the face of it, it’s true and inevitable effect in a politically aggressive society such as ours is as chilling as the one the court tried to avert by holding Sec 66A unconstitutional.
We have already experienced the problem with this paradigm last month in a different context (see India’s Silenced Daughters). I called it the Audience Reaction Test. If I am granted freedom only to the point where you are not incited, I have no freedom at all because there is no predicting what will incite you. I may say there is no real evidence that Lord Rama was born in the Babari Masjid and your religious sensibilities could be hurt enough to want to burn the town down. I didn’t hear too many people in my social circle take the view that Charlie Hebdo should be allowed to incite Islamic fundamentalists because freedom of speech matters. Nor did I hear too many people argue that the radical Muslim politician Asadudin Owaisi should be allowed his hate speech rants.
The point is easy to see when it’s someone religion we are talking about. What about someone’s wife, child, career, or hobby? In our fractured polity, anyone can rent a mob and pelt stones on the street, smashing shop windows and heads because someone says an Italian head of an Indian political party is easier to accept than a Nigerian one. Indians? Racists? How dare you? How hard is it for a set of goons to set Chennai aflame because someone thinks Stalin is a sillier name for a Hindu Indian to have than let’s say a seven foot surd called Pinky? It’s a view point, okay – I may not agree – but if it has a potential to start a riot, goodbye free speech.
Seen from this perspective, free speech then isn’t about human rights and civil liberties; it’s about the budgetary limits of those who claim to be incited. If you have Rs. 500 per head per day to spare for the 200 guys it takes to set up a mob, my freedom of speech is comes at a price of Rs 500 x 200 people = Rupees One Lakh. Come to think of it, why don’t I auction my free speech on EBay and see if someone will pay more than that?
So does that mean that all of the Supreme Court’s efforts add up to nothing? Of course not! At the very least, we have gotten rid of that damn Section 66A. We are also free to offend the sensibilities of individuals so long as there is no threat to public order. To exercise this right, we need to offend people who don’t have the money to rent a mob, or don’t know how to. So while you may complain about the disruptive quality of your average wedding procession, you would do well not to complain about a political wedding because the groom’s dad’s ability to create a clear and present danger is only a phone call away. That apart, this judgment is also ‘sort of’ great for people like AIB and their roasted hosts because now, you can’t create laws that prevent adults from paying through their noses to watch sundry standup comics take truly tasteless swipes at the alleged multitudes who have unlawful carnal knowledge of Karan Johar’s rear orifice.
At one level, this changes nothing in our drawing rooms. I don’t get too many Friday night dinners when no one updates the gathering with the latest in robust Punjabi ribaldry. The real question is whether the liberal use of four letter words for instance in say print media ‘incites’ public immorality or erodes public order. Given the view the Supreme Court has taken, I would much doubt it. I would assume that as time goes by, this judgment will allow mainstream newspapers to spew four letter words and add profanity to their half-naked babe repertoire of explicit content as never before. There would be a limit to this of course: thee Supreme Court has been quick to state that getting rid of 66A doesn’t allow citizens to assume that we’ve lost our criminal laws on defamation or obscenity. That is the next frontier in personal liberty, because this free speech one is unlikely to go much further.
(The author is managing partner of the Gurgaon-based corporate law firm N South. He is the author of “Winning Legal Wars” and “Bullshit Quotient: Decoding India’s corporate, social and legal Fine Print”. He can be contacted at [email protected] or [email protected]).