Monday, July 18, 2016

Comments on the free speech Murugan judgment of the High Court of Madras- by Seema Sapra

Glanced through the Murugan judgement. First thought was what an awful lot of effort and citations and discussion it took for the Court to protect what is clearly a book of obvious literary value. Just shows the high level of threat to freedom of speech in India and the unsatisfactory jurisprudence we have in this area.

And we get the Krishna Iyerisque writing style again, why don’t our judges prefer simple straightforward English?

A sentence from the Murugan judgment: 

"Thus, whenever free speech and expression is sought to be given wings and let loose against the backdrop of one’s creativity, it must carry on its flight within the domain of constitutional morals, forever remembering that while individual opinions and forms of expression are critical to advancement and multifaceted national development, equally important is the safeguarding of the dignity and respectability of another and his cherished beliefs, for the latter must never be compromised on account of the freedom guaranteed under 19(1)(a), as the victim in such circumstances will be no less than the constitutional heartbeat of fraternity – The national brotherhood.”

What a mess this sentence is. Freedom of speech is not a bird to be occasionally let loose. And where does our constitution require that our free speech must never compromise the “respectability” of everyone else’s cherished beliefs. We might as well shut up then. Meaningless and under-examined and unnecessary sentences like this are prone to be used in subsequent cases by less articulate judges to arrive at undesirable conclusions.

This sentence so exemplifies what is wrong with our 19(1)(a) jurisprudence. Someone rightly pointed out that Murugan won not because of our Judge made law but because of judicial discretion in his case.

Was this sentence necessary? No
Does this sentence state the law on 19(1) (a) and 19(2) correctly? No
If this sentence sets out the law on freedom of speech, then speech can be restricted on the ground of “constitutional morals”, whatever they might be.
If this sentence sets out the law on freedom of speech, then the value and freedom of speech is dependent upon some notion of it being “critical to advancement and multifaceted national development”.
If this sentence sets out the law on freedom of speech, then speech can be restricted on the ground that it merely mocks the dignity of another. No more jokes, satire or parody. You cannot even call anyone undignified.
If this sentence sets out the law on freedom of speech, then speech can be restricted on the ground that it merely mocks the cherished beliefs of another, even if those beliefs are worthy of being ridiculed.
If this sentence sets out the law on freedom of speech, then you can “NEVER” “COMPROMISE” “ANYONE’S” dignity or cherished beliefs. There is no exception to this rule if the sentence lays down the law on free speech.
And what would it mean to “compromise”? Would a joke, a cartoon, exposing a belief as rooted in falsehood or in prejudice, compromise such a belief even though its holder cherishes it?
Who decides if A’s beliefs have been compromised? The compromised, the compromiser or the Court or public opinion?
If this sentence sets out the law on free speech, then anyone could come to Court and demand that someone else’s speech be curbed because it attacks, offends, victimizes or “compromises” the “national brotherhood” whatever that means.
This sentence adds a new ground for restriction of speech which is not available under 19(2), – the ground of national brotherhood.
This sentence provides an opening for anyone to approach the Court and insist that A’s speech be restricted because B’s dignity or cherished beliefs have been “compromised”.

This sentence in the Murugan judgement shows that our judges can sometimes get so caught up in decorative language that they pay little attention to what that language actually conveys.

It also shows that our Judges are still not open to seeing free speech as the right to offend, shock and awe.

Unnecessary and loosely worded sentences like this which wrongly describe the constitutional law on free speech are found in almost every free speech judgment of our Supreme Court. And they are the reason why our free speech can be so easily attacked.

We need a real free speech movement in India.

The Murugan judgment also reproduces the problematic and newly developed "fraternity" value that the recent defamation judgment of the Supreme Court relied upon to uphold the criminal law on defamation. This "fraternity" concept that our Judges are developing as "national brotherhood" is headed in directions potentially dangerous for individual liberty. There is no constitutional obligation on citizens to love or respect one another or each others ideas, beliefs, traditions etc. India is full of beliefs that stink. The fraternity idea cannot mean some kind of judicially policed brotherhood or parivar. The fraternity idea could however be developed along the lines of social contract theory where equality, liberty, and other relevant values and goods would be guaranteed for all. So the Constitution is the grundnorm or social contract around which Indian polity and society are organized based upon guaranteed fundamental rights and freedoms. Fraternity only means this - that each and every Indian citizen is equal and important in the eyes of the law and the Constitution.

The Supreme Court is clearly going wrong in articulating some kind of constitutional duty of citizens to be fraternal, to love each other, to be brotherly, etc in how they treat each other, and to further suggest that we must curtail our free speech in deference to some national brotherhood principle. There is no such constitutional duty and this is not why fraternity is mentioned in the preamble to the Constitution. 

The right idea of fraternity instead would be an idea available to citizens against the State and the Government, requiring that for the State, all citizens must be equal and be equally entitled to equality of opportunity etc. This is the right idea of fraternity – that the State must govern so that this equality principle is progressively realized. Fraternity means no citizen can be left out in the cold under our constitution and the law.

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