BOOKS: TALK AT YOUR OWN PERIL
Be silent. Even before Salman Rushdie declared India to be in the grip of a “cultural emergency”; before the culture of bhakt vitriol became a social phenomenon; before the Supreme Court asked theLaw Commission of India to propose a penalty for hate speech; before 2016 turned out to be the year of sedition and 2017 that of defamation—free speech was under threat in India.
That fascinating, tangled backstory of our right to speak freely is what scholar, author and advocate of the Bombay High Court, Abhinav Chandrachud, unravels in Republic of Rhetoric: Free Speech and the Constitution of India. He digs deep into legal, political and historical records, uses anecdotes to show how the law played out in practice and in policy— from the British period to the present— and hammers home the point that India is still waiting for a radical legal transformation, one that would unshackle its laws—especially, the legal limits of speech—from the colonial past.
The right to freedom of speech and expression is guaranteed by Article 19(1) (a) of the Constitution. But, as Chandrachud points out, the four exceptions to free speech under the British Indian legal system—sedition (and hate speech), obscenity, contempt of court and defamation—continue virtually unchanged today. In fact, in some instances they have become even more draconian.
Unlike in the British era, today a police officer can arrest anyone accused of sedition even without a warrant; “prior restraints” are routinely applied against the film and entertainment industry by the Censor Board; restraints on the press in independent India, on and off, resemble those imposed in colonial India; scandalising the court and contempt of court regulations, designed to ensure fair trial so that judges are not prejudiced by prior publicity, continue even at a time when information is freely available on the internet (US courts permit reporting even after a defendant has been charged); although defamation is no longer a crime in the UK, in India it continues to be so; and, of course, foreigners do not enjoy freedom of speech in India.
“Insults to national honour are not tolerated here and religious sentiments can be hurt far too easily,” writes Chandrachud. Government servants have very limited rights to free speech. In fact, he points out how some high courts expect lawyers elevated to the bench to delete their Facebook accounts. And then there are the systemic problems: for instance, the right to free speech offers protection only when the state impinges on your freedom. What if a vigilante group targets you? Nothing, the law has no power.
One can put any gloss on our rights, but the truth is a scary reality that Chandrachud weaves with painstaking precision. In these dangerous times, when hate speech is centrestage and one can be put behind bars, or worse, for printing a wrong map of India, not standing for the national anthem in a theatre, liking a Facebook post, cheering for a rival cricket team, drawing cartoons of politicians or refusing to chant a slogan—it’s time to face up to the laws we have inherited, created and adopted. The only quibble: one wishes the author had explored more the cases in which the higher courts in India have over the years stood up for our right to free speech.