Column: (Un)apologetic about Free SpeechMay 23 2019
When the curator of the Costume Institute at the Metropolitan Institute of Art set down the theme for its annual Gala, who would have thought it would trigger a debate on free speech in India. Describing this year’s theme “Notes on Camp” as an “artifice of exaggeration…style at the expense of content,” the curator believed it to be very timely for “what we are going through culturally and politically.” Uttered in the American context, it applies equally to India.
Last week a youth leader of the right-wing Central ruling party morphed the face of the Chief Minister of West Bengal with a photo of an Indian actress who attended the Gala in an unusually messy hairdo, suggestive of electrification. Arrested from her home, for “violating community guidelines” on social media and for insulting the Chief Minister and the culture of Bengal, Priyanka Sharma was sent to two weeks judicial custody.
Charged, amongst others, under the annulled Section 66A of the IT Act, her family immediately approached the Supreme Court seeking Bail. The Court directed her immediate release, but while passing its order also directed that,
“... at the time of release, [Sharma] tender an apology in writing for putting up/sharing the pictures complained of on her FaceBook Account.”
The order notes that it was made in the special facts and circumstances of the case, which could possibly be the unruly political environment we find ourselves in during the ongoing elections, and Bengal being at the center of it. But does one really need to be apologetic about free speech?
Do not such conditions coming from the Supreme Court pose a danger to personal liberties and constitutionally guaranteed freedoms which can only be restricted on very limited grounds? Does not the rule of law become vulnerable when the State adopts extra-constitutional means and violates basic rights, core to the principles of democracy? And will not such directions of Court add to the false sense of the police being wardens of public morality and consequently have a chilling effect on the expression of opinion?
The Supreme Court has time and again been confronted with issues of free speech and held that,
“[the] commitment to free speech involves protecting speech that is palatable as well as speech that we do not want to hear." A declaration attributed to Voltaire: “I despise what you say but will defend to the death your right to say it” encapsulates the essence of the protection of free speech.”
Permissible free speech includes speech which may cause annoyance, inconvenience or may even grossly offend someone. In fact, the Courts have gone as far as to say that “freedom to air one’s views is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship.”
The Court has held that “Open criticism of Government policies and operations is not a ground for restricting expression” and “those who hold important positions must have shoulders which are broad enough to accept with grace a critique of themselves.”
Resultantly, it has been held that any attempt to curb or deny free speech is unacceptable unless the same falls within the purview of the reasonable restrictions clause of our Constitution. Even then, the “restrictions must be justified on the anvil of necessity and not the quicksand of convenience or expediency.”
Based on the above analysis, while one may find no satire in the morphed photo, which was deliberately provocative and put-up by a political opponent, Courts permit the same by allowing “creative artists…to project the picture of society or political system or the person in politics in the manner he [she] perceives. They can make a pungent political satire of political leaders or system subject of course to decency, morality and public order.”
Noting the views of a jurist, the Supreme Court holds that, “Satire is a literary genre where “topical issues” are “held up to scorn by means of ridicule or irony.”
Sharma’s arrest also brings to fore how the provisions of Section 66A, which were set aside by the Supreme Court in 2015, continue to be used by law enforcement authorities. When brought to the notice of the Supreme Court earlier this year, the Court directed the Centre to make available copies of the Supreme Court judgment in the landmark Shreya Singhal case to the chief secretaries of all the state governments and union territories. It was ordered that,
“the chief secretaries will, in turn, sensitise the police departments in the country by sending copies of this judgment to the director general of police in each state.”
Clearly, this order stands violated which amounts to a direct contempt of the directions of the Supreme Court.
In conclusion, as a society, we need to inculcate greater tolerance towards dissent and not let a select few hyper-sensitive individuals take-away the pluralistic soul of our great democracy. Equally, those in the political arena need to maintain a certain decorum in their discourse remembering the fundamental rule that every right is accompanied by a corresponding duty. A duty to exercise due care and some restraint.
Courts on their part need to ensure that the rule of law isn’t compromised no matter who the affected party is. Courts should also not impose any restrictions which take away the Constitutionally guaranteed freedoms. After all, as the Supreme Court notes “Freedom is not a supplicant to power.”
Satvik Varma is a counsel based in New Delhi. A graduate of Harvard Law School, he’s also licensed to practice in New York.
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