SANJAYOVACHA | Media & unreasonable use of ‘reasonable restrictions’ | Sanjaya Baru

It is quite understandable that politicians in public office would use the power at their disposal to silence their critics. However, it is entirely unacceptable that a free media in a democracy should condone, even justify, such a curtailment of the freedom of speech and expression guaranteed to all citizens by the Constitution. Yet, time and again this has happened. Every political party, without exception, is guilty of the misuse of authority in dealing with critics, especially when such criticism hits where it hurts.

The harassment of stand-up comedian Kunal Kamra is only the most recent example and one that has made national headlines. There have been many other such episodes of the arrest or harassment of the critics of politicians in power from New Delhi to Kolkata, and Lucknow to Hyderabad.

Hence, last week’s judgment by a Supreme Court bench of Justices Abhay Oka and Ujjal Bhuyan, in the case involving a complaint by the Gujarat police against a Congress member of Parliament, Imran Pratapgarhi, should be widely welcomed. Every civil rights organisation should post a copy of this judgment to every chief minister across the country as well as to the Union home minister.

The judgment was categorical. “Seventy-five years into our republic, we cannot be seen to be so shaky on our fundamentals that mere recital of a poem or for that matter any form of art or entertainment, such as stand-up comedy, can be alleged to lead to animosity or hatred amongst different communities.”

The justices went on to observe: “When an offence under Section 196 of the BNS (Bharat Nyaya Sanhita) (penalising actions/ speech promoting enmity) is aligned, the effect of the spoken or written words will have to be considered based on standards of reasonable, strong-minded, firm and courageous individuals … (not of) people who always have a sense of insecurity or of those who perceive criticism as a threat to their power or position.”

These are important observations of the country’s highest court and should be framed and put up in every police station and lower courts across the country.

People in positions of power at all levels of the pyramid of power always display “a sense of insecurity” and are constantly in fear of losing their positions of power. The malaise is deep and in recent years has been widespread.

The root of the problem, of course, lies in the wording of the relevant provisions in the Constitution that in fact protect the citizen’s freedom of speech and expression. Article 19(1)(a), that guarantees the right to freedom of speech and expression to all citizens, is circumscribed by Article 19(2) that allows the “State” to impose “reasonable restrictions” on the right to freedom of speech and expression in the following interests: (1) Sovereignty and integrity of India, (2) Security of the State, (3) Friendly relations with foreign states (4) Public order, (5) Decency or morality, (6) Contempt of court, (7) Defamation and (8) Incitement to an offence.

The problem with this is that each and every one of these provisions, under which “reasonable restrictions” may be imposed on freedom of speech and expression, is nebulous and can be freely interpreted by the State and the judiciary, with the citizen left at their mercy.

Who, for example, will decide at any point in time which is a “friendly country”? Canada was friendly yesterday, may be friendly tomorrow, but is unfriendly today.

Can I let go my vocabulary on Canada? That, however, is a marginal issue in the life of the average citizen. The real bummers are “decency and morality”. Forget stand-up comedians, listen to the language used by members of state legislatures and of Parliament on the floor of the House. Stand in the middle of a traffic jam anywhere in the country and be exposed to the full vocabulary of indecent language.

Why hold only the State and its institutions guilty of curtailing individual freedom? Why blame only politicians in power? What of the media? The record of the Indian media in standing up for individual freedom, speaking truth to power and questioning the high-handedness of the rich and powerful has been woefully inadequate. The media have played their part in the State imposing unreasonable restrictions on the freedom of speech. In so many recent cases, where individuals have been upbraided for expressing their views, in writing or through other forms of expression, the national and regional media have hunted with the hounds.

Journalists have not just lost their jobs. Some have lost their lives. Just for doing their jobs.

Given that the media itself has fallen short in defending its freedom, we owe Justices Oka and Bhuyan a huge debt of gratitude for doing this for the media and for all of us. Their judgment provides a welcome definition of what is “reasonable” and “permissible” in the exercise of State power in the restriction of individual freedoms guaranteed by the Constitution. The learned judges went a step further. “Courts, particularly the constitutional courts”, they observed, “must be at the forefront to zealously protect the fundamental rights of citizens. It is the bounden duty of the courts to ensure that the Constitution and the ideals of the Constitution are not trampled upon. The endeavour of the courts should always be to protect and promote fundamental rights, including the right of freedom of speech and expression.”

The judgment went on to state that literature, including poetry, drama, films, stage shows, including stand-up comedy, satire and art, “make the lives of human beings more meaningful”. This is a profound observation and the justices deserve a standing ovation from all writers, poets, artists and entertainers. In normal times, such sentiments may sound like one is stating the obvious. But, in the times we find ourselves in when research scholars are in jail for expressing an opinion, when journalists are killed or simply dismissed from employment under political pressure, when films are banned for offending someone or the other, when the police routinely go after critics of people in power, these words acquire a new meaning and relevance.

They remind us of Rabindranath Tagore’s famous poem, ‘Where the Mind is Without Fear’.

The writer is an author, a former newspaper editor and adviser to Prime Minister Manmohan Singh