Following is an excerpt from M.N. Roy Memorial lecture, 2017 delivered by Justice A P Shah, Chairman of the 20th Law Commission of India and former Chief Justice of Delhi High Court.
Free Speech and Court
The Supreme Court has repeatedly emphasised the value of free speech, noting that the freedom of speech and expression lies at the foundation of all democratic organisations, inasmuch as free political discussion facilitates public education and enables the proper functioning of the processes of government. The Court has emphasised the function of free speech as promoting autonomy and self-fulfilment, maintaining truth, and performing the function of a watchdog. It has also given express recognition to the value of free speech in a “market place of ideas”, by quoting the famous dissent of 1919 of Justice Holmes in Abrams vs. United States:
“But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” (Emphasis supplied)
The value of free speech is thus, both intrinsic and instrumental, and has consistently been linked to democratic ideals. For example, the censorship of the play “Mee Nathuram Godse Boltoy”, which was extremely critical of Mahatma Gandhi was not permitted by the Bombay High Court. In an insightful judgment in Anand Chintamani Dighe vs State Of Maharashtra, the Court highlighted the importance of respect for, and tolerance of, a “diversity of viewpoints”, as being essential to sustain a democratic society and Government. The Court further went on to state, “Popular perceptions, however strong cannot override values which the constitution embodies as guarantees of freedom in what was always intended to be a free society.” In the same vein, the Supreme Court in Director General, Doordarshan vs Anand Patwardhan held in 2006 that the State cannot prevent open discussion, regardless of how hateful such discussion was to the State’s policies.
The importance of dissent is best understood by the Supreme Court’s view in S. Rangarajan v P. Jagjeevan Ram that “In a democracy it is not necessary that everyone should sing the same song..”.
It has thus long been understood that free speech has to be countered by more speech; that the response to criticism is not to shut it down, but to engage with, and respond to, the speaker. Moral vigilantism, as Upendra Baxi rightly recognises, has no place in our Constitutional polity and democracy.
Free speech, though, is under attack. The joy over the striking down of Section 66A of the IT Act in Shreya Singal was soon replaced by despair over the Supreme Court’s decision to uphold the constitutionality of criminal defamation in Subramaniam Swamy v UOI and its “order” directing all cinema halls across India to play the national anthem before the start of a film, and requiring the audience to stand up as a “show of respect”. I shall discuss the National Anthem order in further detail later on in my speech.
Just last month, in relation to the comments made by Azam Khan regarding the Bulandsher gang rape, the Supreme Court raised the question of whether the right to free speech under Article 19(1)(a) is to be controlled singularly by the language under Article 19(2) or is it also impacted by the expansive right to life and personal liberty under Article 21 of the Constitution. The answer to this question will have a profound impact in restricting the scope of Article 19(1)(a) and undermine our Constitutionally guaranteed right.
Even the Bombay High Court, whose decisions I have referred to above, has on occasion failed to protect the right to free speech. Recently, it constituted a three member committee (comprising of two lawyers) to give a report on the scenes in the movie Jolly LLB-2 it found “objectionable”, because it was prima facie of the view that certain scenes – those involving a cowering judge and some dialogue between the lawyers – were in contempt of the judiciary and the legal profession. Mind you, this was a movie where the CBFC, i.e. the Censor Board, has given the requisite certification for its release. It was also a case where the High Court entertained the writ petition (later converted to a PIL) based only on two trailers and some photographs! As Justice Lodha had said, while dismissing a similar petition when Jolly LLB-1 released, if the Petitioners don’t want to watch the movie, no one is forcing them. The Bombay High Court’s order, the report of the three member “committee”, and the proximity of the release date, essentially forced the producers and director of the movie to “compromise” and undertake to make the requisite modifications and deletions to the objectionable scenes.
I only hope that these judgments are aberrations in an otherwise glorious history of the Indian Judiciary in protecting and promoting the Constitutionally guaranteed right to free speech and expression.
However, free speech has to be protected institutionally – not only by the Courts, but also by statutory institutions and the media. Unfortunately, we read about reports where the CBFC, our “censor board” has refused to certify a movie such as Lipstick Under My Burkha, because it was “lady oriented”, contained “sexual scenes, abusive words, audio pornography”; deleted the line “mann ki baat” from the upcoming movie Sameer because that is the name of the Prime Minister’s radio show; and demanded that the Hanuman Chalisa be muted from a scene in Phillauri, because it failed to ward off the ghost. How can you forget that in Udta Punjab, a Adult-only certified movie, the Censor Board demanded 94 cuts (based on 13 suggestions), including deleting the name “Punjab”, deleting certain abuses and deleting the words “Election”, “MP”, and party worker”. If this is not an assault on the freedom of speech and expression, then I don’t know what is.
The freedom of the press is part of the freedom of speech guaranteed under Article 19(1)(a). This is because a free press is essential to disseminate different views, and promote democratic ideals. More importantly, today, when mass-communication and digital media have become prevalent, the media assumes an even greater importance in playing the role of the opposition and checking facts. In fact, no other institution wields as much power and influence on public opinion as the media. However, in recent times, a section of the media, through its biased and one-sided reporting, has unfortunately aided in the restriction on free speech. A news channel airs false and doctored footage, while others openly flame the fans of this patriotism and anti-national debate. It is ironic that the media, which played a critical role in asserting its right to free speech during and after the emergency, and in the process helped develop our Article 19(1) jurisprudence, is now the institution that is compromising and challenging the same freedom of speech of the dissenters today.
We also have social media, where online trolls and threats of rape and murder are regularly made against people supposedly making anti-national statements. I am left to ask myself, which part of Indian culture permits or promotes the making of such statements threatening a girl with rape or murder. Who are these people on Twitter and other social media, who take comfort in their anonymity to make such aggressive threats against individuals?
Laws criminalising speech such as sedition, defamation, and blasphemy have been used against activists, dissenters, and even political cartoonists to silence and harass them. In such a situation, using these offences to deter a person from speaking, instead of engaging with the underlying concerns of their speech, is detrimental to democracy. In fact, the chilling effect and consequent stifling of free speech caused by the threat of invocation of these offences and tactics undermines the constitutional protection to free speech guaranteed by Article 19(1) of the Constitution. More worryingly, though, a debate around nationalism and patriotism prevents a real conversation about the social and economic problems that ail the country. Having discussed the meaning of nationalism and the importance of free speech in some detail, it is appropriate for me to now turn to examine issues that are raised by nationalistic fervour, whether sedition, the national anthem, the attack on universities, and cow slaughter. A common theme linking these topics is the idea of “cultural nationalism”, where cultural conformism is being foisted upon the entire nation, without consideration of people’s personal choices, values and regional differences.
Read Justice A P Shah's entire speech, Free Speech, Nationalism, Sedition.