Freedom of Speech and Expression — Right to Be
There is one issue which keeps cropping up in news every now and then, that is the issue of someone taking offence to — how some other being is or says or believes in. For me there is nothing more ‘un-Indian’ than this. India is the ‘land of seeking’ and one cannot ‘seek’ without the divine freedom. Descartes wrote “Dubito, ergo cogito, cogito ergo sum” (I doubt, therefore I think, therefore I am). These words perfectly define India and its magnificent past. India has been a land of discourse, a land of debate, a land of thought and counter-thought.
For me freedom of speech is the essence of life. Yes! Today’s India is facing external and internal threats but to extensively curb this freedom is akin to saving a limb over life. We have enjoyed considerable amount of freedom in India, way more than our neighbours, and that has made us value this priceless freedom a little less. This is my attempt to make others think about what is closest to my heart. An attempt to make others think about something which lets us all be ‘us’ and which lets us all show to the world who we are.
“Gulon mein rang bhare baad-e-nau-bahaar chale, chale bhi aao ki gulshan ka kaarobar chale
Qafas udaas hai yaaron sabaa se kuch to kaho, kahin to bahr-e-khuda aaj zikr-e-yaar chale”
- Faiz Ahmad Faiz
While incarcerated in Montgomery Central Jail, in the subtlest manner, Faiz Ahmed Faiz wrote about the importance of speech and expression. His call for revolution through his immortal words though was for Pakistan, I feel desperate to borrow the same since the threat to India from India is very real. And no matter where we are in time, this statement will stay true. Democracy needs to be preserved to preserve the essence of India.
A land of seeking cannot sustain without one fundamental thing that is the ‘Freedom of Speech and Expression’. The threat to the most important right, the threat to freedom of speech and expression, a right on which every other right depends, is always very real. Today it could be one comedian whose right is curbed, tomorrow a cartoonist, then a poet, or various vulnerable groups like LGBTQQI community, women, tribal, religious sect, or absolutely anyone. We do not appreciate what entails “speech and expression” this engulfs everything from what we say to how we dress to what we profess, what we do, our profession, sexuality, language, culture, and everything that we employ to convey who we are. If we understand this then it is necessary to understand and to appreciate, the significance of this freedom at macro and micro level.
It was after the Second World War when the world leaders met as United Nations, “the international community vowed never again to allow atrocities like those of that conflict happen again” and therefore came up with the “road map to guarantee the rights”[1] and among all the rights, acknowledged the paramountcy of right to freedom of speech in the following words:
“Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,”[2]
What the world acknowledged as the UN; India has been practicing for millennia. Where in our world people are fighting for ‘protecting the gods’ and are not willing to allow even the slightest of criticism of their beliefs and where organizations like ISIS are working to impose their philosophy on the world; India from the Vedic times not only allowed development of counter thoughts like Buddhism and Jainism, but it also allowed self-criticism. Even Rigveda has evidence that shows “presence of a tradition of free thinking and questioning as well as adaptability to changing social conditions.”[3] The freedom is reflected by a hymn from Rigveda where a ‘Rishi’ has questioned the existence and supremacy of the supreme beings called ‘Devas’.[4]
Now even after thousands of years the importance of freedom of speech has not diminished. John Milton in his work Areopagitica wrote “give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties”[5]. He has also written that even in Athens, “where books and wits were ever busier than in any other part of Greece” and also in Rome only blasphemy and libel were punished and “except in these two points, how the world went in books, the magistrate kept no reckoning.” Though here the Greek and Roman civilization were intolerable to blasphemy, the Vedic civilization allowed intellectual pondering about the Supreme Being Himself.
Milton has further written that if it were possible to expel sin by banishing all the objects of lust and to “shut up all youth into the severest discipline that can be exercised in any hermitage”, it will still not be possible to make them chaste. Further, with sin, virtue will also be expelled as “if every action, which is good or evil in man at ripe years, were to be under pittance and prescription and compulsion, what were virtue but a name, what praise could be then due to well-doing, what gramercy to be sober, just, or continent?”[6]
Irrespective of how much we have travelled in time the importance of this divine right can never be diminished. In a speech delivered by Mr. POE in 2011 in U.S. House of Representative on the prosecution of a Dutch Lawmaker Greet Wilders who “was charged with discrimination and incitement of hatred” because “he made a movie depicting Islamic clerics who incite violence in the name of religion” said:
“He was prosecuted not for his actions, but for his words. That is a scary thought
… Freedom of speech is a God-given right to which every person and every nation is entitled. It is no coincidence that our country’s Founding Fathers deemed it so important they listed it first in the Bill of Rights. A country that refuses one’s freedom of speech is doomed to grow stagnant. How can it develop as a society when it stifles or tries to punish opinion? As Wilders himself said, ``Every public debate holds the prospect of enlightenment.’’ He certainly is correct. And that’s just the way it is.”[7]
Freedom of speech and expression has always been perceived as a threat in our country by the modern lawmakers. Even though the freedom of speech and expression is the most important right for any human being because “our lives begin to end the day we become silent about things that matter”[8] and in fact all other rights depend on this right, Roger Nash Baldwin said “silence has never won rights. They are not handed down from above; they are forced by pressures from below.”[9]
The constituent assembly which gave this great nation its constitution after becoming provisional parliament amended this right by Constitution (First Amendment) Act. A provisional parliament not elected by the people of this nation amended the right secured by the constitution in the year 1951 and since then this right has been weakened again and again; and citizens have been robbed.
After the transfer of power from the British to the Indian political class a huge change in the thinking of the people, who have fought for the people, was noticed. The greed of the constitution makers was visible from the restrictions they proposed. I cannot paint a better picture of this shift in the intention as was done by Shri Lakshmi Narayan Sahu. He said –
“Those who till recently were seeking to organise disobedience of laws are, being today, in the seat of power, apprehensive of the violation of laws by other people, and under this apprehension, are seeking to make the law so comprehensive and rigid as to prevent anyone outside the ruling group from going beyond its control. … Unless the restrictive provisions of this article are deleted, we cannot properly enjoy our National Freedom. Moreover, it had always been our loud assertion that self-government is better than good government. Now we have grown indifferent to self-government and are raising the slogan of good government. With so many rigid provisions what good government can you have and for whom?
Those who are in power at present are apprehensive that the people and political parties other than those of the ruling group would practise disobedience of laws. That is why so many restrictive provisos have been included in the Draft Constitution. It is precisely why I insist that the Fundamental Rights should be treated as fundamental and inviolable. It is not proper therefore to delimit them by so many restrictive clauses and sub-clauses.”[10]
In the modern India, fundamental rights including the right to freedom of speech and expression were borrowed from the U.S. Constitution[11] but there is difference between the right under U.S. Constitution and the Indian Constitution. The U.S Constitution does not have any restriction on the right, whereas the Indian constitution has placed ‘reasonable’ restrictions (borrowed from Nazi Germany) on freedom of speech and expression. It would be wrong to suggest that the right in the US is absolute[12] but the restrictions are not as vague as the ones mentioned in Art 19(2) of the Constitution of India. This I believe is the genesis of the offence taking culture which now seems to be so prevalent in our country.
Importance of this right is further evidenced by the meaning of the term expression. Expression can encompass almost all aspects of an individual’s life. Joseph Raz has written that the communication that is protected by this right is not just “the communication of propositional information” rather “it includes any act of symbolic expression undertaken with the intention that it be understood to be such an act by the public or part of the public”.
Since ‘expression’ is so vast, the exercise of this right by any individual is also important for his own personal well-being. “Well-being and personality or character are two most basic (and deeply inter-connected) dimensions by which people understand and judge themselves and others.”[13] Further the greater part of the well-being of a person consists “in the (1) whole-hearted and (2) successful pursuit of (3) valuable (4) activities.”[14]
Now since the impact of the exercise of the rights by an individual is felt both on the society at large as well as the individual himself it becomes important to strike a balance between the freedom and the restriction while paying special attention to the importance of this freedom for the development of the society as well as individual. No matter what argument is raised, no matter what side of the argument we are personally, it is important that the freedom that allows us to pick sides is not constrained beyond recognition.
“I disapprove of what you say, but I will defend to the death your right to say it.” — Evelyn Beatrice Hall
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[1] History of UDHR
Available at: https://www.un.org/en/sections/universal-declaration/history-document/index.html
[2] Preamble, Universal Declaration of Human Rights, 1948
[3] T.S Rukhmani, “Intellectual Freedom in Ancient India: Some Random Thoughts”, Volume 6, JRSS, Samskrtavimarsah, World Sanskrit Conference Special, 183 (2012).
[4] T.S Rukhmani, “Intellectual Freedom in Ancient India: Some Random Thoughts”, Volume 6, JRSS, Samskrtavimarsah, World Sanskrit Conference Special, 183 (2012)
[5]John Milton, Areopagitica: A Speech For The Liberty Of Unlicensed Printing To The Parliament Of England.
Available at: http://www.gutenberg.org/files/608/608-h/608-h.htm
[6]John Milton, Areopagitica: A Speech For The Liberty Of Unlicensed Printing To The Parliament Of England.
Available at: http://www.gutenberg.org/files/608/608-h/608-h.htm
[7] Congressional Record, 112th Congress, 1st Session Issue: Vol. 157, №101 — Daily Edition, House of Representative — July 08, 2011, pertaining to address by Mr. POE of Texas on Freedom of Speech
Available at: https://www.congress.gov/congressional-record/2011/07/08/house-section/article/h4786-1
[8] Attributed to Martin Luther King, Jr,
[9] Aasef Shafik, Global Peace Lovers 228 (Author House, Bloomington, 2011)
[10] Constituent Assembly debates, Vol VII Draft constitution: Art 13 on 02/12/1948
[11] Brij Kishore Sharma, Introduction to the Constitution of India 33, Prentice-Hall of India Pvt. Ltd, New Delhi, 4th Ed.)
[12] Kathleen Ann Ruane, “Freedom of Speech and Press: Exceptions to the First Amendment”, CRS Report For Congress (2014).
Available at: https://fas.org/sgp/crs/misc/95-815.pdf
[13] Joseph Raz, Ethics in the public domain — Essays in the morality of law and politics 3 (Oxford University Press Inc, New York, Revised edn, 2001)
[14] Joseph Raz, Ethics in the public domain — Essays in the morality of law and politics 3 (Oxford University Press Inc, New York, Revised edn, 2001)