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How should the right to freedom of expression work?

With increasing number of withdrawal of books, comics and other forms of print and visual media expressing novelty of ideas and opinions, I fear that the Indian mind will disturbingly shrink. Even after the security and freedom carved out for the citizens under the Constitution of India, no political and legal questions arise against those who actually deserve to face the consequences.
The ease with which the Indian state accedes makes it easier for the enigmatic groups to resort to the courts and shout that they are offended. And the courts have to admit their complaints by virtue of the principles couched under sections 153 A, 292 and 295 A of the Indian Penal Code 1872 (IPC), giving a license to anyone to complain that his or her sentiments are hurt. This is what I would like to call a clash of predicates. How should freedom of speech and expression work in our country?
No book or other media ever demolished a mosque or entered a railway station or hotel and killed people; no book blasted crowded places and looked away from communal violence. Who did all that? People – People who have never been brought to courts to be tried for their wrongs. Here, I empathize with authors like Wendy Doniger (in The Hindus: An Alternative History) and Salman Rushdie (in Satanic Verses) when they posit their views through provocative and inspiring fiction but are faced with humiliation because they would hurt sentiments of some fanatics.
Here comes the pseudomonas nature of the basic right of Freedom of Speech and Expression given to each individual in India, enshrined under Article 19 of our Constitution, or should I say it has been poorly interpreted? Irrespective and ignorant of the real intention behind their creation, censorship plays a villainous role downplaying such actors in the society.
This year, the world’s largest democracy is yet again ranked a miserable 136th out of 180 countries in the Reporters Without Borders Press Freedom Index (2015 World Press Freedom Index. Available at: https://index.rsf.org/#!/). The “reasonable” restriction under Article 19(2) is invariably present for public interest, but the courts have twisted it on so many occasions. The government silences its citizens for any number of reasons which includes “public order,” “decency” or “morality” and “friendly relations with foreign state.”
The result is that we have been deprived of several books and other forms of media, as it does not satisfy the taste of others. In today’s world, banning for maintaining public order and respecting popular emotions does not serve its purpose due to the advancement in technology where our dear friend the World Wide Web and other alternate sources help to sneak in everything possible on Earth. But India has made it a habit to give an excuse of being culturally diverse, having unique set of problems, justifying its need of restrictions.
However, these restrictions have quite often resulted in contradictory outcomes by giving a wrong message to public through misinterpretation. I want to take the liberty to say that it is the idle and tampered groups who twist the subject matter and mislead the fickle minded to serve their own purposes. Mostly their purpose is destruction of public peace and tranquillity.
John Stuart Mill in On Liberty very rightly said that, “…if all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.” The government or the courts both stand by and do nothing to protect freedom; even worse it villainously abets its suppression.
The State Governments have been authorized under Section 99A of the Code of Criminal Procedure, 1973 to seize any publication which they think promotes feelings of enmity, hatred and “deliberately and maliciously” intends to outrage the religious beliefs of the respective class and therefore forfeit such a document and punish the [culprits] under the IPC. My bone of contention again lies with the test of proving intention. Merely writing one’s own opinions and beliefs in a fictional or non-fictional account is termed to disturb “pubic order” and “morality.”
Whose freedom of speech and expression should be protected? What is the gravity and validity of applying average community standard’s test, social standard’s test? How and why do the arbitrariness of judges and state governments here in deciding whether one piece incites hatred in public is justified? Almost all the people who rise up in outrage have not even read the texts, which they protest against but merely parrot their guru’s calling.
On the flip side, all the media hype and ban ignites human tendency and publicizes the document in question even more and makes people eager and restless to check it out through other means not serving its purpose anyhow. Bans are a farce.
In the recent Shreya Singhla v. Union of India (2015) case I agree with Justice Nariman’s observation that no idea or message can be criminalized depending on its “communicative content.” Only when there is a relationship so imminent between speech, action and this stage of incitement that Article 19(2) can kick in. I can live with this, as it is consistent with our individual autonomy and responsibility.
The timely release of Romila Thapar’s “The Public Intellectuals” also deals with such pressing issues of writers being threatened with visible violence and how they actually play a role as an alternative voice to the nation. An independent rating body which will call the ultimate shots on the nature of content of these contestable materials will do more justice than courts and zealous religious bodies who have been labelling the content in contemporary literature. The writers have in large number started refusing literary awards, that day will not be far when literary works would become stagnant and opinion columns would be done away with in the name of “public interest.”

By Shruti Dixit

The writer is with OP Jindal Global Law School, Sonepat

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