Freedom of speech in India has today degenerated into the brute howl of majoritarianism, led by BJP leader Subramaniam Swamy, who asserted that God dwelt neither in churches nor mosques but only in temples, thereby indirectly giving legitimacy to utterances such as those of VHP leader Surendra Jain, who tried to defend the rape of a 72-year-old nun by saying it was Christian culture to sexually exploit nuns. “The Vatican received 5,000 complaints of sexual exploitation in five years, prompting the Pope to appeal for legalisation of gay sex,” he reportedly said after the rape.
Article 19 1 (a) gives all citizens the right to freedom of speech and expression. But unlike the USA, Article 19 (2) of our Constitution imposes eight so-called reasonable restrictions which are decency and morality, friendly relations with foreign states, security of the state, public order, the sovereignty and integrity of India, defamation, contempt of court and incitement to an offence. These are unreasonable restrictions because what is given by the right hand is more or less taken away by the left.
These restrictions are imprecise and left to the subjective interpretation of the judiciary and those voted to power. Public order, security of the state, decency and morality can be interpreted differently by Hindutva protagonists and secularists so that laws which curtail a citizen’s free speech are indiscriminately churned out. What we are left with is a moth-eaten freedom, with ever-changing boundaries. This is borne out by Reporters Without Borders, a barometer of global press freedom, which lists India at 136 out of 180 countries on its index. Nothing to rave about.
In its first landmark judgment in 1950, the Supreme Court struck down a ban on the entry of Cross Roads into the then Madras Presidency. This led the then Congress Government to introduce ‘public order’ within the sweep of Article 19 (2) by the very first amendment to the Constitution, followed by the words “sovereignty and integrity of India” in 1963 by the 16th amendment. Like all politicians, Jawaharlal Nehru curtailed both free speech and freedom of the press despite his cosmetic utterances to the contrary.
In Cross Roads, the apex court held that to be seditious, “the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency. Mere promoting ill will against the government was insufficient.”
Recently, the Bombay High Court ruled that Aseem Trivedi’s cartoons were not seditious. Sedition is not only hatred of the state, but incitement of violence against a lawfully elected government.
By that yardstick, the action of former BJP chief L K Advani, who led a rath yatra which culminated in the Babri Masjid demolition of 1992, precipitating widespread riots throughout India should have been held seditious as are the inflammatory words of Subramaniam Swamy. But both of them are left unscathed. Freedom is for the majority, get it? The minority can go hang themselves.
Apart from the curbs in Article 19 (2), the Supreme Court laid down in 1954 that the privileges of those whom we elect override the fundamental right to freedom of speech and expression of all citizens. Hence, the curbs on free speech now travelled even beyond the so-called reasonable restrictions of Article 19 (2).
And in 1989, the Bombay High Court ruled in the Madhav Gadkari case that a newspaper could not plead truth as defence to justify news about corruption in the judiciary, thereby blacking out all such news until an amendment in 2006 set things right.
The crucial test is to strike a balance between freedom of speech and freedom of press guaranteed by Article 19 (1) (a) and the innumerable laws which are churned out by the seminal womb ensconced by Article 19 (2).
What we need is a Constitutional amendment which will weave in only two restrictions on free speech while doing away with Article 19 (2) altogether.
The amended Article 19 (1) (a) could read : All citizens are guaranteed free speech and a free press with the exception of state security and obscenity which are the only heads for legislation to curtail the aforesaid freedoms.
This would be in line with the First Amendment to the US Constitution, which does not contain any so-called reasonable restrictions. Either we are free or we are not. There can be no middle path.
Our freedoms are those which we are allowed to enjoy by those whom we vote to power. If that were not the case, Article 25, which guarantees freedom of conscience and the right to freely profess, practise and propagate religion could have been interpreted as a species of free speech.
Today, that freedom is exercised vociferously by the saffron brigade by rewriting school textbooks to create a new generation who will believe that civilisation began with Hindutva and those who are not Hindus are enemies of the state.
Olav Albuquerque holds a Ph.D in Media Law from the University of Mumbai and is a practising lawyer of the Bombay High Court. He was earlier a senior journalist of several newspapers, including The Free Press Journal.
