FREEDOM OF EXPRESSION

Right to speech, dissent, offend: a conundrum of sorts

freedom-of-speech Representational image | File

"Nobody has the right to not be offended. That right doesn't exist in any declaration I have ever read. If you are offended, it is your problem, and frankly lots of things offend lots of people." Acclaimed novelist Salman Rushdie's words, however, will have very few takers in today's India where ultra-nationalism rules prime time discourses, religion and caste are all-weather poll planks, and banning films and other artistic demonstrations is the order of the day. In a pluralistic society like India, the periphery of free speech is always opaque, and the nebulous distinction between right to dissent and right to offend is even more vague, leaving even the absolutists in an enigmatic dilemma.

The right to freedom of expression, guaranteed by Article 19(1)A of the Constitution, is subject to “reasonable” restrictions on the grounds of security of state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, incitement to an offense and sovereignty and integrity of the state. But, as most of these factors are themselves abstract and cannot be measured with a fixed set of parameters, how can the balance be imposed? This quandary makes the right to free speech a double-edged sword often leading courts to deliver either contrasting or confusing judgments from time to time.

The right to offend and hate speech are inextricable. Though there is no legal definition of hate speech, a Law Commission report released in March enlists a few criteria to identify it. The report says that the speech must be 'offensive' and project the 'extreme' form of emotion. “The term hate speech has been used invariably to mean expression which is abusive, insulting, intimidating, harassing or which incites violence, hatred or discrimination against groups identified by characteristics such as one's race, religion, language, caste or community, sexual orientation or personal convictions.” Sounds like a farrago? The fact that defining feature of sentiments is subjective leads to the rampant misuse of this clause and ultimately to the suppression of free speech.

India, Canada, England, France, Germany, the Netherlands, South Africa and Australia have their own laws or have signed international conventions banning hate speech. But in the United States, the Supreme Court has repeatedly ruled that hate speech, no matter how bigoted or offensive, is free speech. "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express the thought that we hate,” the US apex court has affirmed.

The Indian Supreme Court, in a landmark judgment last year, upheld constitutional validity of Sections 499 and 500, which criminalise defamation, and said: “The right to reputation is an individual's fundamental right.” The verdict came at a time when the Human Rights Committee of the International Covenant on Civil and Political Rights has been urging the states to abolish criminal defamation, and some of them including the United Kingdom have already brought it into effect. The SC judgment was critiqued by many who argued that the fundamental right to freedom of expression encapsulates within itself the right to offend. Senior lawyer and former Union minister Manish Tewari wrote in a national daily: “Perhaps, it is time for the legislature to consider the criminality of defamation, and decide as to whether the act of defamation is civil tort or criminal wrong.”

The Organisation of Islamic Countries (OIC) have been pushing to pass a resolution at the United Nations to call on countries to criminalise 'defamation of religion'. The sole aim of the resolution is the restriction of free speech which is critical of or offensive to Islam. However, it is yet to see a breakthrough because dealing with defaming an idea—here religion—instead of individual didn't suit to the legal systems of many of the western countries. The OIC move was in the wake of repeated appearance of cartoons and caricatures of Prophet Muhammed in a few western media publications that had angered the Muslim world, and sparked off violent attacks and riots.

In India also, religious fundamentalists have always clashed with free speech absolutists, and it escalated after the uprise of Hindu nationalists during the 1980s and 1990s. Right from M.F. Hussain to Taslima Nasreen and from Aamir Khan to Kamal Haasan, n number of so-called liberals have tasted the ire of “offended” religious fanatics. Taslima, a constant target of Muslim fringes, is a vigorous campaigner of absolute free speech. “Everyone has a right to offend and be offended,” she maintains.

Although India does not have a law to exclusively deal with blasphemy, those who 'offend' gods are tried under Sections 295A and 298 which criminalise "deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious belief". Who will decide whether it was deliberate or malicious? The decision is again left to the courts. The murders of M.M. Kalburgi, Narendra Dabholkar and Govind Pansare were hard-hitting evidences of how a section of the society is getting increasingly intolerant to dissent, leave aside offense.

In the age of ultra-nationalism and hyper-patriotism, any passing remarks on the national idols attract charges under Article 124A, also called sedition law. In the famous Kedarnath vs State of Bihar case verdict in 1962, the Supreme Court has laid down the scope of this law and made it clear that 'incitement to violence' was a pre-requisite for a sedition charge. However, even six decades after the verdict, India still witnesses blatant misuse of sedition law with as many as 47 sedition cases reported across nine Indian states in 2014 alone; many of these cases did not involve violence or incitement to violence.

Will all this hotchpotch prompt the judiciary, government and the civil society to take a holistic approach to the right to free speech? In his book, There is no such thing as hate speech, noted author Ravi Shanker Kapoor argues, "The grounds restricting the freedom of expression have to be reasonable and not sentimental, not only because it is the Constitutional position but also because reasons can be objectively debated, while sentiments can’t be."

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