Free speech under attack by courts, CBFC & media

They (Constitution drafters) understood that while the freedom of worship is part of democracy and is a fundamental right, the edifice of modern democracy has to be the freedom of thought and expression. Our Constitution is drafted as a positive, forward-looking and inclusive document that binds the aspirations of all Indians.

This achievement is all the more noteworthy if we consider, as Fali Nariman recently pointed out, that in the Constituent Assembly of 299, 255 members (85%) were Hindus. Despite being in a massive majority, the Constitution drafters took pains to protect the interests of the minority, the oppressed, and the dissenters.

Free speech, though, is under attack. The joy over the striking down of Section 66A of the IT Act in the Shreya Singhal case was soon replaced by despair over the Supreme Court’s decision to uphold the constitutionality of criminal defamation and its order directing all cinema halls across India to play the national anthem before the start of a film, and requiring the audience to stand up as a show of respect.

Just last month, in relation to the comments made by Azam Khan regarding the Bulandshahr gang rape, the Supreme Court raised the question whether the right to free speech under Article 19(1)(a) is to be controlled singularly by the language under Article 19(2), or is it also impacted by the expansive right to life and personal liberty under Article 21 of the Constitution. The answer to this question will have a profound impact in restricting the scope of Article 19(1)(a) and undermine our Constitutionally guaranteed right.

Even the Bombay High Court has, on occasion, failed to protect the right to free speech. Recently it constituted a three-member committee (comprising two lawyers) to give a report on the scenes in the movie Jolly LLB-2 it found objectionable because it was prima facie of the view that certain scenes—those involving a cowering judge and some dialogue between the lawyers—were in contempt of the judiciary and the legal profession.

Mind you, this was a movie where the CBFC, i.e. the Censor Board, effectively had given the requisite certification for its release. It was also a case where the High Court entertained the writ petition (later converted to a PIL) based only on two trailers and some photographs!

As Justice Lodha had said while dismissing a similar petition when Jolly LLB-1 was released, if the petitioners don’t want to watch the movie, no one is forcing them. The Bombay High Court’s order, the report of the committee and the proximity of the release date forced the producers and director of the movie to compromise and undertake to make the requisite modifications and deletions to the objectionable scenes.

I only hope these judgments are aberrations in an otherwise glorious history of the Indian Judiciary in protecting and promoting the Constitutionally guaranteed right of free speech and expression.

However, free speech has to be protected institutionally—not only by the Courts but also by the statutory institutions and the media. Unfortunately, we read about reports where the CBFC, our ‘Censor Board’, has refused to certify a movie such as Lipstick Under My Burkha because it was “lady-oriented,” contained “sexual scenes, abusive words, audio pornography;” deleted the line “Mann Ki Baat” from the upcoming film Sameer because that is also the name of the Prime Minister’s radio show; and demanded that Hanuman Chalisa be muted from a scene in Phillauri because it failed to ward off the ghost.

How can you forget that in Udta Punjab, certified as an Adult movie, the Censor Board demanded 94 cuts (based on 13 suggestions) including deleting the name ‘Punjab’, deleting certain abuses and deleting the words, “Election, MP and party worker”. If this is not an assault on the freedom of speech and expression, then I don’t know what is.

No other institution wields as much power and influence on public opinion as the media. However, in recent times, a section of the media, through its biased and one-sided reporting, has unfortunately aided in the restriction of free speech.

A news channel airs false and doctored footage, while others openly flame the fans of this patriotism and anti-national debate. It is ironic that the media, which played a critical role in asserting its right to free speech during and after the Emergency, and in the process helped develop our Article 19(1) jurisprudence, is now the institution that is compromising and challenging the same freedom of speech of the dissenters today.

We also have social media, where online trolls and threats of rape and murder are regularly made against people supposedly making anti-national statements. I am left to ask myself, which part of Indian culture permits or promotes the making of such statements threatening a girl with rape and murder. Who are these people on Twitter and other social media, who take comfort in their anonymity to make such aggressive threats against individuals.

Excerpts from the M.N. Roy Memorial Lecture on Free Speech, Nationalism And Sedition, delivered by former Chief Justice of the Delhi High Court, AP Shah