An Indian ACLU & Article 19(2)

Sometimes, our comments section includes more insightful observations than the posts themselves. In order that the exchange between Sandeep Dougal and Tarunabh Khaitan in the comments section of the earlier post does not suffer the readers’ oversight, I republish them here as a separate post.

Sandeep Dougal:

Thank you for a very informative and educative post. I totally agree with it but it is the last line that bothers me, viz. “The earlier Jaswant Singh or any citizen in Gujarat challenges the ban under Section 96 Cr.P.C. the better.”

Jaswant Singh has already made it clear in some TV interview or the other that he has no intention of fighting the ban legally. When asked, he also said that he didn’t know about his publishers. I think the publishers, for various reasons, would decide not to challenge the ban.

The Congress party in Gujarat has already welcomed the ban. In general too, activists etc end up viewing specific cases through various party-political prisms and may want to be selective about the causes they wish to fight for.

I am sure there would be some individual supporters of free speech who would want to challenge the ban, but more often than not such votaries of free speech are handicapped because of various costs involved in finding a lawyer and fighting the battle legally.

Apart from this one particular case, in general also, there seems to be a crying need for clarity in the law so that reckless bans on nebulous and idiotic claims — as V. Venkatesan so correctly highlights — are not resorted to easily by various state

I do realise that this is of course a complex subject and often, even when legal redressal may be possible, publishers of books or exhibitors of films,for example, bow down to the mob pressures. For example, in the case of James Laine’s book, if memory serves me right, the publisher decided not to pursue the matter even after the favourable Bombay High court verdict, which in any case was later challenged.

Frankly, looking at how often and easily various hoodlums have made life miserable for assorted groups, I have long felt that we need an Indian equivalent of ACLU:

I don’t think PUCL/PUDR etc. have quite fulfilled the role they were set up for or are equipped to, or even wish to, play such a role.

I must admit, though, that I have not even followed ACLU other than very casually, but the little that I have — in particular its famous stand, “ACLU has no love for the Ku Klux Klan, but does for the First Amendment” — has always made me wonder why we do not have any such body of progressives in India who are willing to take a principled and uncompromising stand on free speech?

I wonder if LAOT would want to explore the possibility of a sustained campaign, looking into the constitutionality of various bans that are still in force — I can imagine it would be quite a task to even compile a comprehensive list though we could begin with some of the high profile cases — and at least to consider the possibilities of figuring out ways of fighting various ridiculous bans?

Or explore how publishers, editors etc could equip themselves to deal with law and order situations that are sought to be created, as the Statesman faced, for example, in Calcutta over the Johann Hari op-ed? I of course ask this as I have a vested interest in clarifying my own thinking over the many intertwined issues in such cases and would love to hear from all of you.

I would also very much value if someone could point me to where I could educate myself better on the essential differences between the First Amendment rights in the US and the constitutional position in India.

Tarunabh Khaitan:

I think Sundeep’s suggestion for an Indian ACLU is a very important one, and perhaps deserves a separate post in itself. No political party in India takes a principled stand on free speech, and I daresay, the same seems to be true of most progressive secular groups. The entire point of free speech is to defend speech we dont like.

On his second query, the US first amendment has no exceptions to the freedom of speech in its text – there are only very narrow judicially carved exceptions which have stretched the meaning of speech (for example, when does ‘speech’ become ‘noise’ and therefore does not deserve protection etc). In Article 19 of the Indian Constitution, there is an explicit exception clause which allows prohibition of certain expressions. The Indian ACLU’s task will be to monitor these constitutional boundaries and make sure they are not breached.

One must hasten to add, though, that restrictions on speech under Article 19(2) are only permitted, certainly not mandated. Therefore, one fails to understand why our courts entertain petitions to ban some film etc – how can the judiciary ban any speech? It has no power to do so. It can only police a ban already imposed by the executive or the legislature to make sure it complies with the Constitution. It is ridiculous, therefore, that various high courts (and I think even the SC) has issued notice to companies like Google and TV channels for offending you tube videos – an act clearly without jurisdiction. The laudable exception is Chief Justice of Shah of the Delhi High Court refusing to entertain a petition against ‘sach ka samna’.

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  • Hi Tarunabh,

    Your comments are interesting. I'm a little unsure about why you say that the judiciary by itself has no power to ban speech. It certainly should have the power to ban certain kinds of speeches such as hate speech or defamatory speeches? Also in some cases speech could violate the rights of others, so the judiciary should have the power to issue a ban. Don't you agree?

  • Wouldn't it be interesting to see what constitutional provision the judiciary uses to justify a ban on a book or movie that is not under an Article 19 challenge? Theoretically, wouldn't it be possible for the SC to do that under Article 142, say? Provided it can come up with a public interest sort of argument, of course.

  • dear madhav and kalyani, no, i really believe that he judiciary does not have jurisdiction to prohibit speech, whatever the content. article 19(2) is permissive, not mandatory.
    of course, article 142 can be used here, like in every other instance where the courts cannot point to a provision. but that is a misreading of article 142. there is no right against hate speech or offensive speech. what sort of democracy are we if we have a right not to be offended? even hate speech – i fail to see what right is violated? of course, one has a right to security if violence ensues, but no right against the speech itself surely. under what provision in part 3 will you locate such a 'right'?

  • Dear Tarunabh,
    What about defamation? Assume someone runs defamatory commercials against another on television, and the aggrieved person approaches the court for an injunction and damages, you don't believe he has a right? Granted Part 3 may not articulate such a right, but surely it can be incorporated under common tort law?

  • madhav, in cases like defamation, contempt of court etc., the court is enforcing an existing law (even here, except contempt of court, the initiative does not lie with the court). usually these laws are created by the legislature. however, as you point out, tort law is a problem area – here, the judiciary wears a law-maker hat as well as an adjudicatory hat. defamation is an existing tort that the courts can enforce. i am certainly not suggesting that the court cannot create any new tort (say on hate speech). but when they do so, they shoud:
    (a) do it explicitly as a tort.
    (b) give reasons to justify the creation of this new tort
    (c) one of the factors to consider will be countervailing freedoms that militate against the creation of the tort, free speech being one of them.
    (d) at least attempt to define the tort, and outline the conditions when it will or will not apply.

    a tort on hate speech may be justifiable, a tort on causing offence (especially to historical figures) is certainly not acceptable in a liberal democracy.

    just to highlight, in light of madhav's comment – creation of a new tort is the only way judiciary can curb speech not already covered by existing law. but in doing so, judiciary is acting as a law-maker rather than an adjudicator, and is therefore as much bound by article 19(1)(a) as a legislator.

  • Thanks Tarunabh for such a detailed reply. I think you're right; creation of a new tort would certainly be the way. I also believe the judiciary could (not even remotely suggesting it should) curb speech by understanding a right enshrined within a statute or the constitution as one that grants protection against certain kinds of speech. With specific regards to the Indian context, I'm not sure which right could accommodate this, but that require greater study.