Book Review; Boundaries of Free Speech

OFFEND, SHOCK, OR DISTURB:Free Speech under the Indian Constitution. By Gautam Bhatia, OUP, 2016, Pages 347, Rs.750.SENTIMENT, POLITICS, CENSORSHIP: THE STATE OF HURTEDITED BY Rina Ramdev, Sandhya Devesan Nambiar, and Debaditya Bhattacharya, Sage, 2016, Pages 281, Rs.895These two books appear at a time when the Indian Republic is grappling with new and menacing threats to the freedom of expression guaranteed to its citizens by the Constitution. The threats are not just from the State, but also from many non-State actors, who, of late, have felt emboldened to silence and intimidate those who exercise their right to free expression, because of the state’s connivance.The book by Gautam Bhatia, a lawyer practising in High Court of Delhi and a visiting faculty, West Bengal National University of Juridical Sciences, is an outstanding effort to simplify to the readers, the principles and theories used or missed in our Supreme Court’s judgments on freedom of expression, from the beginning, on the basis of comparison with similar judgments from other countries.The results of the author’s efforts are fascinating. The author takes note, right at the beginning, of the yawning, almost insurmountable gap between law and practice. Take sedition, for instance. It was left undisturbed on the statute books upon the understanding that it is limited to speech that can cause harm to public order. But, as the author shows, the executive and lower judicial authorities have acted as if the Supreme Court’s judgment in Kedar Nath Singh v. State of Bihar (1962), which upheld the sedition law, but limited it to cases involving harm to public order, never existed. Examples of action taken under the sedition law, which the author gives are arrest of people for protesting against a nuclear power plant, failure to stand up during the national anthem, and for publishing a mocking cartoon of the founding fathers. “There has not even been an attempt to explain how any of these actions are remotely connected to public disorder”, the author says.Freedom of speech is curtailed not by grand Supreme Court decisions upholding (while restricting) the law of sedition, or prior restraints upon the cinema, but by a thousand tiny cuts, on a daily basis – until the heckler’s veto becomes a part of the fabric of lived reality, whatever the Supreme Court might say, he argues.A large number of speech-restricting provisions in our penal laws are classified as cognizable offences under the Code of Criminal Procedure. This means that the police are authorised to arrest suspected offenders without the requirement of a judicially sanctioned warrant. Most of these cases, Bhatia says, never come to trial, but the damage they inflict upon the actual working of the freedom of speech in India is obvious.Therefore, he suggests, if the State wishes to ban a book or a film, or block a website, it should bear the burden of coming before a court and convincing it that the restriction falls within the contours of Article 19(2). Alternatively, a regime of heavy civil damages, enforceable against the police (or the State, as the case may be) and effectively implemented, ought to be in place to provide a significant disincentive for frivolous arrests, he writes.In this book, Bhatia articulates his nuanced support to repeal of laws which restrict free speech. It is important to know, he says, how erroneous were the decisions of the Supreme Court, while upholding the sedition law, and Section 295A of IPC, which led to Penguin Books withdrawing Wendy Doniger’s book on Hinduism. A thorough understanding of the law of free speech, he says, will help to narrow the gap between the law and the practice.The book is structured in such a way so as to ensure exhaustive treatment of the subject. Starting with the background, the author moves on to an elaborate discussion of the restrictions, which are sought to be justified on the ground of public order, and sedition. Obscenity, hate speech, and censorship of film and internet are covered in three chapters.Defamation, privacy, contempt of court are covered in two chapters. Recent issues like net neutralitiy, and copyright are covered in another chapter.Bhatia discovers two broad streams of thought in Indian cases. One is the moral-paternalistic vision of free speech, that is, the State believes that it is its bounden duty to protect people from malign influences. The other is the liberal-autonomous vision which believes individuals, as thinking, deciding beings can choose for themselves how to lead their lives. To ban speech, according to the latter school, is to insult the autonomy both of the speaker, and of the listener. The latter school countenances restrictions on free speech in limited cases, such as incitement to imminent violence, or other, important constitutional values are implicated.Bhatia finds that Indian jurisprudence is evenly divided between these two approaches, and that it is open for a court...

Book Review; Boundaries of Free Speech

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