Why SC is right to seek a tougher law to check abuse of free speech

medium118839940There has been some rather sharp criticism of the Supreme Court’s call for curbs on freedom of expression to ensure that it stays within the bounds of society’s acceptable norms of “morality and decency”.The court believes that the existing free speech regime is too liberal and needs tightening to prevent its abuse.“Fundamental rights are not on a platter, there are certain restrictions,” it said while allowing the controversial stand-up comic Ranveer Allahbadia to resume his podcast ‘The Ranveer Show’, subject to an undertaking that he would maintain decency.The show was banned following protests over his allegedly obscene remarks during a performance.In a sign of how seriously the court is taking the issue, it asked the government to come forward with a draft regulatory framework for public consultation.However, it hastened to clarify that any follow-up legislative or judicial intervention should not impinge on the fundamental right of free speech guaranteed under the Constitution.Although the court didn’t elaborate, the proposed curbs are most likely to be in addition to those that already exist under Article 19(4) of the Constitution, which allows the state to impose “reasonable restrictions” in the interest of public order, morality, or the sovereignty and integrity of India.There are fears that further restraints will allow the government of the day to gag critics more easily. There’s particular concern that the hazy definition of what would be construed as a breach of “traditional standards of morality and decency” could be selectively interpreted to harass political rivals and communities it doesn’t like.On the face of it, few will quarrel with this line of argument.Of course, it would be lovely if everyone were free to say or write anything without having to constantly worry about what someone somewhere will make of it. medium nocaptionhttp://youtu.be/gaTp5kdthkM?si=gAmkqITQTijT85a0But the problem with this absolutist view of freedom of speech is that it’s too Utopian to work in a deeply divided society riven by myriad sectional prejudices and competing religious, cultural, linguistic and political sensitivities.So, Muslims don’t tolerate any criticism of Islam, Jews are quick to dub any unflattering reference to Israel — let alone Judaism — as anti-semitic, Hindus can’t stand any adverse comment about their faith — not to mention gender vigilantes always ready to take offence at the slightest hint of disagreement.And this even before we come to politicians who see themselves as sacred cows — exempt from the normal laws of humour, satire or even legitimate criticism.Only last week, Tamil magazine Ananda Vikatan’s website was blocked on the orders of the ministry of information and broadcasting for carrying a cartoon about Prime Minister Narendra Modi. A court later revoked the order but on the condition that the magazine remove the offending cartoon.In such a polarised climate, to insist on an absolute right to free speech is a fantasy and suggests a glaring disconnect with the real world.Forget India, even more liberal Western societies are struggling to protect this Utopian view in the face of growing pressures from competing interest groups, including Hindu/Muslim immigrants, quick to interpret any critical comment about them — however legitimate — as racist.People are constantly having to censor themselves to avoid getting into trouble with the speech police prowling round the corner.But back to the SC’s contentious move.The criticism that it has attracted is mostly misplaced.It misses the point that for all its obvious disgust over Allahbadia’s behaviour, the court upheld his right to free speech and allowed him to resume his business, risking the wrath of the so-called “moral majority”. medium nocaptionhttp://youtu.be/AopXxYkzGgA?si=aAEXoxsU8I4j9UGQIt was a brave and balanced verdict in the circumstances — both upholding Allahbadia’s right to free speech and taking note of his distasteful joke and public anger at the same time.It is often forgotten that the judiciary, especially the SC, remains the only institution today that is trying to protect whatever remains of our shambolic free speech and human rights regime.It’s doing a difficult job — in very difficult circumstances — of trying to strike a balance between protecting free speech and preventing its abuse.It may not always get the balance right, but mostly it does.By the way, on the same day (March 3) as the Allahbadia verdict, another bench of the Supreme Court weighed in favour of free speech.It chided the Gujarat police for registering an FIR against Congress MP Imran Pratapgarhi over a social media post with a poem “Ae khoon ke pyase baat suno” (those who are bloodthirsty listen to us) which, it was alleged, hurt religious sentiments and was intended to promote enmity between different groups.The court pointed out that contrary to the police interpretation, the poem was about promoting non-violence.“It has nothing to do with religion, this has nothing to do with any anti-national activity,” it said while hearing Pratapgarhi’s appeal for quashing criminal proceedings against him.The police had shown a “lack of sensitivity” in proceeding against him, it observed.“Some sensitivity has to be shown by police. They should have read the poem before taking action… In 75 years of the existence of the Constitution, freedom of speech and expression has to be at least now understood by police,” it said. medium nocaptionhttp://youtu.be/34BXpHDMwYE?si=GNMFYg-CHaaMWD1nWhile reserving the verdict, it granted interim relief to Pratapgarhi by stopping all steps in pursuance of the FIR which was registered over an Instagram post featuring a video clip with the poem “Ae khoon ke pyase baat suno” playing in the background.Call it intellectual laziness or what you will, “absolute free speech” advocates tend to overlook the widespread subversion of speech, especially by politicians and their proxies.To tell the truth, the right to free speech has come to be mistaken for a licence to incite hatred, harass rivals and create social divisions.Just last week, a Delhi court gave a dressing down to BJP leader Kapil Mishra, now Delhi’s law and justice minister, for making statements to “promote enmity on grounds of religion” and “spew hatred” to “garner votes” in the 2020 Delhi assembly election.In one such statement, he reportedly said: “Delhi mein chhote chhote Pakistan bane hain (there are mini-Pakistans in Delhi)” and “Shaheen Baghh mein Pak ki entry (Pakistan has entered Shaheen Bagh)”.Dismissing his revision petition against summons in connection with a case he is facing under the Representation of the People Act, special judge Jitendra Singh of the Rouse Avenue Court said: “The word Pakistan is very skillfully woven by the revisionist (Mishra) in his alleged statements to spew hatred, careless to communal polarisation that may ensue in the election campaign, only to garner votes.”It’s in this context that the SC’s proposal must be seen.Whether or not one agrees with its prescription, what is clear is that the current arrangement is not working and we need a new doctrine where free speech is no longer treated as an entitlement but must be earned.The alarming debasement of free speech in recent years should be a cause for concern for anyone who values civilised public discourse.Looking the other way makes us effectively complicit in what’s going on.Lead illustration: Uday DebRead more from the author here.