Freedom of Speech & Expression: The Golden Fruit in the Tree of Democracy
It is two factors which makes democracy desirable even in its worst of times, something every citizen of a democratic setup proudly states. One, it has inbuilt methods to thwart any attempt at upending the foundation principle of democracy, which to Abraham Lincoln is the very definition of democracy - “rule by the people, for the people and of the people”. The second one is the determining factor though. A simple attempt at checking its presence tells you whether it is a democracy or not. It lets one distinguish pseudo-democracies like the People’s Republic of China from the relatively genuine ones like the United States of America or India. It is that golden fruit hanging in the tree of democracy, the presence of which tells you that you are indeed looking at the democracy-tree, passionately known and referred to as liberty or freedom.
If we were asked to choose between a monarchy/dictatorship which has been functioning remarkably in areas like health, education, economy, technological progress and many other; and a democracy which has been performing abysmally in these aforementioned arenas, we would most likely choose a democracy no matter how prospective and lucrative the former might seem. What drives our decision making here is the paramount value of freedom. No amount of financial progress or development would bestow one with a sense of satisfaction, pride, and happiness that the realisation of being an autonomous individual provides.
Of all the different varieties of freedom, freedom of speech and expression has been given a special treatment to its critical value over the others. Freedom of speech and expression has the potential to guard the rest of the rights and liberties. When the citizens are free to express their thoughts, to demand what is rightfully theirs, the rest of the rights and liberties automatically start to flourish. Development and progress never become a full circle without the lasting presence of freedom of expression.
Amartya Sen, in his book ‘Development as Freedom’, has taken cognisance of the same when he said that the expansion of freedom is both the primary end and the principal means of development. In India, the constitution guarantees via article 19(1)A, the right to freedom of speech and expression. Constitution makers have emphasised the relevance of this right to freedom by enshrining it as the first one. The founding fathers of the nation envisaged India as having a people-centred politics and governance, where people have the space to comment, dissent and oppose anything under the sun. But the catch here is that it is also not unrestrained. The right to freedom of expression can be restricted by the state involving reasonable restrictions in the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. Though prima facie it would seem that this deluge of restrictions gives a picture of an inconspicuous absence of free speech, the constitution prevents any arbitrary attempts to shackle by letting the independent Supreme Court of India define what is ‘reasonable’ and what is not, within the boundaries of constitutional morality.
Does all this mean that the status of freedom of speech and expression has been uniform? A sagacious study of the immediate history says otherwise. From the Padmavat movie issue to the very recent issue of Bloomsbury-Delhi riots book and the contempt of court charges on Advocate and activist Prashant Bhushan, the evidence reflects that the notion of ‘free speech and expression’ needs a thorough re-analysis. Each issue opens different fronts of contention regarding this. While Padmavat issue and the Bengaluru riot incident is about whether the freedom of speech should be subjected to restrictions if it attempts to hurt the sentiments of a section of the society, the Prashant Bhushan case is about whether the state, or judiciary to be precise, can curtail a person’s will and wish to criticise the institutions of the state. On the other hand, the call to ban movies like Kabir Singh and Arjun Reddy have been about whether the right to free speech holds precedence over the movement against patriarchy. These issues churn out different interpretations of the scope and relevance of the right to free speech and expression.
The society’s response towards each issue has been remarkably interesting and contributes towards developing a better understanding of the matter. If we are to look at the Padmavat issue or the Bloomsbury issue, what is evident is that the opposing sides have made their stand based on the speculative idea that it distorts history or presents a skewed picture of reality. In the Padmavat case, it was found that such apprehensions were unfounded while the more recent Bloomsbury incident is still in a baby stage vis-a-vis the Padmavat issue. The book on Delhi riots is yet to be published formally and only the e-copy of the book is being sold. The opposition that the book attracted can be perceived as unwarranted to some extent since the book was then yet to be published and making a normative judgement without having first-hand knowledge about it goes against the scientific and empirical ethos as well as the call for scientific inquiry that the constitution (via article 51A(g) of fundamental duties), as well as the left-liberal side, aims to nurture. It is one thing to deliberate upon restricting something after having a concrete understanding based on facts and to do so based on speculations. Selective knowledge, which can be misleading, is insufficient to call for action and will only result in silencing of genuine attempts at expression as people with malicious intent would then be able to curtail it. This principle applies to the Sudarshan TV controversy as well, because no matter how controversial it seems, instead of going by the well-established procedure of law, if the free speech is curtailed through public pressure, it will start becoming an accepted norm and the societal evils will thrive through that window. A better solution could have been to have a censor board like body to vet such programmes and then air it.
The Prashant Bhushan-contempt of court case helps one look at the institutional response aspect of free speech. The case from a constitutional perspective would seem completely justified but from a moral and normative standpoint, if the state were to thwart any attempt at criticising it, it goes against the democratic essence of the nation. Quite contrary to the SC argument that criticisms would result in people’s loss of confidence, it is most likely to be strengthened if the SC is found to be open to criticisms, inquires into the matter and is open enough to correct itself if the criticism is found genuine. Public confidence and trust in such a judiciary would strengthen and solidify beyond doubt. V.R. Krishna Iyer, pioneer of judicial activism once wrote in The Hindu - “Parliament should wake up and implement glasnost and perestroika in the judiciary. In the name of independence, we cannot have judicial absolutism and tyranny”. Free speech could guide in its path towards reforms for the same and to strengthen people's confidence in the judiciary. The sedition law should also be seen from a similar vantage point as the arbitrary use of such laws results in the erosion of trust in the system which not only turns its back towards any difference of opinion but also suppresses the same. The sedition law that is in force in India at present, brought by the British, is archaic and obsolete. The British revoked the sedition law in their land in 2010 while we still import the Indian counterpart, IPC section 124A, in cases very extravagantly. That being said, since a nation cannot survive efficiently for long without the sedition law, it should act to prevent direct incitement of violence or direct harm to the integrity and sovereignty of the nation.
The technology and the internet in the modern era, have expanded the purview of free speech-concept. Social media now has an extended base which is ever-growing and every ‘social media citizen’ is making use of the proliferation and opening up of public platforms to share their thoughts and perspectives. Something to muse over here is whether this new-found liberty, wide and relatively unchecked, needs a check? We are witnessing instances like a Kolkata guy giving rape threats to someone over comments on Pulwama attack and many other cyberbullying incidents. Would curbing them be tantamount to hindrance on free speech? Exercise of the ‘reasonable restrictions’ that the constitution permits comes into the picture - public order and morality assumes precedence here. For such exercises to be reasonable, the message that the constitution intends to convey should be clear and popular.
A key factor towards ensuring that is to set the political discourse in the right path. The current narrative of political discourse presents a dismal picture. It is marred with vested interests and has been heavily influenced by psephological factors, with the actors showing utter disregard and contempt for righteousness, moral responsibility and scientific reasoning, while conjuring lies from thin air and selectively using facts to present a distorted and skewed picture. We see the right-wing supporting incidents of arbitrary use of sedition law while voicing their concern for the Delhi riots book authors’ right to freedom of speech and expression being curtailed. We see the left wing’s vociferous support for the free speech right of the likes of Sharjeel Imam and Kafeel Khan while screaming that online media like Opindia and books like Delhi riots 2020: an untold story should be banned. Both sides have stooped to such lows to satisfy their ideological moorings that values, rights and duties have become irrelevant to them. The political discourse needs to be cleansed of selfish ideological interests and should be made issue-based. Criticism of the hypocrisies of both sides might be a good way to make them mend their ways and ensure that the idea of free speech stays intact and relevant.
In short, freedom of speech and expression has to be given paramount status and the restrictions should only be exercised during times of dire need, like for direct incitement of violence or damage to the constitution specified arenas - sovereignty, integrity and security of the state, public order, decency, morality, etc. Restrictions are justifiable in instances like that of the murder of outspoken journalist Gauri Lankesh where the writings have directly incited the perpetrators towards the commission of such a heinous crime, not when rumours about an unpublished book or movie makes you ‘feel’ that it will hurt your sentiments. Above all, society is bound by a duty to improve itself in the conviction of what is right and wrong so that no one’s speech or acts of expression incites them into doing harm or wrong. The societies should grow to a level where they are not swayed or incited by any film like Kabir Singh or Arjun Reddy, giving space to all for free speech and expression and at the same time being morally incorruptible. That is when we would be able to make the most out of the tree which provides us with the golden fruit of right to free speech and expression - the tree of democracy.
By Rajiv S Krishnan and Krishna Priya K (Guest Writers)
Rajiv likes to look at the world through his own lens and loves to analyse politics with a centric, issue based approach.
Currently pursuing Political Science in Hindu College, Krishna likes to explore writing articles on Indian politics. She believes writing fosters her creativity and critical thinking.