The regulating of social media after the future Chief Justice of India Surya Kant was criticised for indicting former BJP spokesperson Nupur Sharma for her blasphemous statements of the holy Prophet of Islam is a direct outcome of vituperative speech. The apex court bench comprising Justices Surya Kant and J B Pardiwala refused to club all the FIRs registered against Nupur Sharma and told her to approach the high courts, observing she did not even respect the magistrates by directly approaching the Supreme Court.
Advocates and activists who support Nupur Sharma have committed contempt of the Supreme Court by attributing motives to Justice Surya Kant and approaching the Chief Justice of India N V Ramana to have Justice Surya Kant’s oral remarks expunged without realising that judges have absolute freedom to say what they want within their courtrooms.
The first amendment of the US Constitution is the exact opposite of the first amendment to the Indian Constitution, because it guarantees absolute free speech to all citizens and the media whereas in India, Jawaharlal Nehru added public order, incitement to an offence and friendly relations with foreign states to the then existing five restrictions of defamation, contempt of court, security of the state, sovereignty and integrity of India and decency and morality.
This further curtailed free speech, which is necessary because unbridled freedom can be abused by the likes of Nupur Sharma and Canada-based filmmaker Leena Mahamekalai who has depicted the Goddess Kali with a cigarette. Articles 19 (1) (a) which guarantees free speech and Article 25 which guarantees the right to practice, profess and propagate any religion supplement each other because you cannot propagate any religion without exercising freedom of speech and expression. Our founding fathers borrowed the idea of the right to free speech from the Irish Constitution and the rest of the fundamental rights from constitutions such as the U.S. and French Constitutions.
Justice Surya Kant’s indictment of Nupur Sharma for creating turmoil in India is justified because 12 countries belonging to the Organization of Islamic Conference (OIC) have blasted India for alleged Islamophobia. Kuwait immediately removed Indian goods from its shelves in its supermarkets, whereas a tailor, Kanhaiya Lal was beheaded at Udaipur in Rajasthan on June 28 and a chemist, Umesh Kolhe, was earlier stabbed to death at Amravati in Maharashtra for forwarding posts about Nupur Sharma.
To go back to 1950, two weeks after the Constitution came into force, two magazines, Cross Roads and the RSS-backed Organiser published inflammatory articles and were banned from being circulated in Madras and Delhi respectively. The Supreme Court struck down these bans. In 1950, the founder of the Jan Sangh, Syama Prasad Mookherjee had reportedly delivered a speech that Pakistan wanted war with India and to reunify the two partitioned countries into an “Akhand Bharat” (reunified India), war was necessary.
The then Prime Minister Jawaharlal Nehru asked Lokmanya Tilak what action could be taken to which Tilak replied that Mookherjee enjoyed freedom of speech which could not be curtailed under the existing restrictions. A Patna high court judge, Justice Sarjoo Prasad, declared in his judgment in 1950 known as the Shaila Bala Devi case that even incitement to murder was protected by Article 19 (1) (a). But the Supreme Court later reversed this ominous verdict, stating Justice Sarjoo Prasad showed a lack of understanding of the law.
These were the reasons for Nehru to introduce the irrational head of “friendly relations with foreign states” with two other heads—incitement to an offence and public order—because Pakistan had protested against Mookherjee’s speech of an “Akhand Bharat.” The irrational head of “friendly relations with foreign states” does not find place in any other Constitution of the world. When Nehru criticised Justice Vivian Bose as “lacking in intelligence” during a press conference in 1951 for a judgment which he (Nehru) found repugnant, he later wrote to the then CJI apologising for it. The CJI wrote back accepting the apology and asking if Nehru’s letter could be released to the media. Nehru acquiesced.
The point here is that freedom of speech can be abused by the likes of Nupur Sharma and film-maker Leena Manimekalai in Canada. Sharma denigrated the holy Prophet whereas Leena showed Kali smoking a cigarette. What is astounding is that an advocate of the apex court wrote to the CJI asking for Justice Surya Kant’s remarks against Nupur Sharma to be expunged because what she said was based on the hadith; ipso facto, her statements were truthful.
Religion and reason are incompatible because there is something irrational in every religion — but if any religion is denigrated, it will give rise to unrest and fragmentation of the country. Judges do not deliver judgments based upon public opinion or vox populi, meaning the voice of the people, which is quite often unreasonable and fuelled by media debates. Judges have to strictly uphold the Constitution whereas the legislature enacts laws based upon public sentiment. The judiciary is charged with striking down laws which violate the fundamental rights.
We demand freedom of speech to compensate for freedom of thought, which we seldom use while abusing free speech.
Dr Olav Albuquerque holds a PhD in media law and is a senior journalist-cum-advocate of the Bombay High Court
