Offend, Shock, or Disturb: The limitations to free speech in India

  • Avantika Mehta, Hindustan Times
  • Updated: Jun 25, 2016 08:36 IST
At the crux of Gautam Bhatia’s book is the idea that one if one may not speak freely, one cannot speak the truth at all. (Illustration: Jayanto)

Gautam Bhatia’s Offend, Shock, or Disturb is notable for two things: it comprehensively compiles the jurisprudence on free speech — both Indian and international, and it is steeped in unwavering idealism that may well be the need of the hour. The premise of the book is simple: the right to freedom of expression lies in the right to equality. So, according to Bhatia — who has borrowed the idea from philosophers like Immanuel Kant — if we are all equal, what we have to say is equally important and therefore no one group should stifle the expression of another’s beliefs. This idea is, of course, older than Kant. The Athenians too placed freedom of speech together with the right to equality. The lack of the right to speak freely was the clear mark of a slave in the Athenian world. And that is the crux of the book: if one may not speak freely, one cannot really ever speak the truth.

Still, Bhatia takes his reader through the various limitations on freedom of expression in India, and also their international roots. The chapters on obscenity, defamation and sedition are engrossing. Particularly amusing is the chapter on obscenity, which is heavily underlined by Bhatia’s own liberal view on the subject. It is a view many young urban Indians will share, if one can get them to read about it. In fact, this book has been published at just the right time: there really are no Indians alive who are not, in one way or the other, affected by free speech laws. Contempt of court is stifling journalism, and if the IndiaSpend study is correct, our politicians are being elected based on their hate speeches. Which is why this reviewer was slightly surprised that Bhatia didn’t look more at net neutrality and the protection of journalistic sources. These are the need of the hour and should have been discussed more.

Offend Shock or Disturb
Gautam Bhatia
OUP India
Rs 750; PP365

There is some confusion at the heart of Bhatia’s analysis of hate-speech and public order laws. Or perhaps it is simply that his dislike for them overpowers his analysis. The book seems to presume that heckler’s veto — the idea that there must be constriction on any speech that could cause a violent reaction in the public — will only deal with cases where a person’s capacity for rational thought is limited. It effectively presumes that the crowd is not as smart as the individual. In some cases, this may be true. In others, it may not. For example, Donald Trump’s supporters may well be rationally thinking human beings and still call for a ban on Muslims voting in the US. It may be silly, but it is possible, but Bhatia discounts such thinking that is not in line with his.

The author’s analysis of free speech cases relies heavily on the idea of morality as defined by the law to mean constitutional morality. The concept is not new, but has not yet found favour with the Supreme Court. The Delhi High Court relied upon constitutional morality in the Naz Foundation case in striking down Section 377 IPC, which criminalises consensual gay sex. A few years later, the top court threw out former DHC Judge AP Shah’s passionate analysis of the idea. Perhaps every judge on every Indian bench should be given a copy of this book in the hope that they are swayed by Bhatia’s beliefs even though they remained indifferent to AP Shah’s fantastic analysis of the same in Delhi High Court’s Naz Foundation judgment.

My biggest complaint with the book is that it analyses Indian Supreme Court jurisprudence in a vacuum. This is a lovely thought, but ultimately an idealistic fantasy. Law does not operate in a vacuum; it is affected by the culture of the time, and most importantly, by the political and economic landscape of that moment. So when Bhatia discusses hate speech without bringing up parliamentary debates on the issue or a beloved politician’s contribution to enacting the law he finds so vile – yes, we are referring to Nehru’s introduction of the “reasonable restrictions” clause of our FOE -- he does a disservice to history and to his readers. Historians have noted that the clause was brought in to muzzle the Hindu Mahasabha. The amendments were later used by the Supreme Court to uphold the law of sedition, which Bhatia extensively discusses in the book without looking into the realpolitik of the situation. In the interests of impartiality, the author should have discussed the politics behind the limitations on our free speech.

The author discusses the Patna High Court judgment that quashed a government petition to restrict a violent political pamphlet. But there is no discussion of the times and the government action. The ruling government of any time, whether we like to admit it or not, has a big influence on the orders that roll out from the judiciary. It is not a coincidence that the RSS in 1950 found itself censored by a Congress government and protected by a court of law. Today, the orders may well be different. Judges are, after all, products of their environment. It is fair to examine jurisprudence from across the globe when it comes to the subject of freedom of expression. However, it is a disservice to discuss an issue so closely linked to politics without ever bringing up that aspect. It delivers a stilted picture of the law: a picture of how the author wants things to be, rather than how things are and why they are so.

This book will be invaluable to many advocates as a source of research. However, few non-lawyers will pick it up. This is a small tragedy, because Bhatia could have written a book that appealed to more people. Offend, Shock and Disturb could have done much more than educate the already educated, even though the author does do that rather well.

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