Yesterday’s Times of India carried a news report on a Supreme Court judgment on freedom of speech. A bench that included the Chief Justice of India has reiterated the fact that the Indian constitution does not guarantee the fundamental right to free speech-
It will no longer be safe to start a blog and invite others to register their raunchy, caustic and even abusive comments on an issue while seeking protection behind the disclaimer — views expressed on the blog are that of the writers.
This chilling warning emerged as a Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam refused to protect a 19-year-old Kerala boy, who had started a community on Orkut against Shiv Sena, from protection against summons received from a Maharashtra court on a criminal case filed against him.
A computer science student, Ajith pleaded that the comments made on the blog were mere exercise of their fundamental right to freedom of expression and speech and could not be treated as an offence by police.
Unimpressed, the Bench said, “We cannot quash criminal proceedings. You are a computer student and you know how many people access internet portals. Hence, if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct.”
For completeness’ sake, here are articles 19(1) and 19(2) of the Constitution of India as of sometime in 2008-
19. (1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
This was not originally the case. This article was amended because our late great socialist Prime Minister – Jawaharlal Nehru – found that fundamental rights were making it difficult for him to go about his plans. So, while proposing an amendment, this is what he wrote–
During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom. The citizen’s right to practise any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to reasonable restrictions which the laws of the State may impose “in the interests of general public”. While the words cited are comprehensive enough to cover any scheme of nationalisation which the State may undertake, it is desirable to place the matter beyond doubt by a clarificatory addition to article 19(6). Another article in regard to which unanticipated difficulties have arisen is article 31. The validity of agrarian reform measures passed by the State Legislatures in the last three years has, in spite of the provisions of clauses (4) and (6) of article 31, formed the subject-matter of dilatory litigation, as a result of which the implementation of these important measures, affecting large numbers of people, has been held up.
The main objects of this Bill are, accordingly to amend article 19 for the purposes indicated above and to insert provisions fully securing the constitutional validity of zamindari abolition laws in general and certain specified State Acts in particular. the opportunity has been taken to propose a few minor amendments to other articles in order to remove difficulties that may arise.
If you want the right to free speech, you need to be a political party like the Shiv Sena, or the Samajwadi Party, or the Maharashtra Navnirman Sena, or the head of one of the many goon squads. Then you can say and write and do whatever you want and public sentiment will see to it that an exception is made for you under law. Everyone else, however, is bound to face criminal charges if they dare to speak or write something that “hurts” some one else’s sentiments.
Over the past couple of days, I am having a debate on “Consistency and liberty” and the importance of philosophy here. I will continue to do that till it reaches a logical conclusion or someone tires out, whichever happens first. But this “freedom of speech” issue signifies the importance of philosophy. Why did Nehru think, and why do so many “popular bloggers,” lawyers, constitutional experts etc think that defamation and libel is an exception to freedom of speech? What is the basis of such a law? I don’t know if either the dead man or some of the others will have any satisfactory answers. Rothbard had it though, and so does KM; I have linked to this post many times in the past and I will continue to do it every time I think it is necessary. That’s why philosophy is important people. Without philosophy you cannot defend a single issue, or right, because you won’t know how, or why.
The government has changed in the US, but its policies remain the same. Reason reports that Bush’s “War on Terror” has just been made into an indefinite one–
“I don’t think there’s any question but that we are at war” with terrorists, [Attorney General] Holder said at his confirmation hearing last month. We did not notice when the war began, he said, and we may never know when it ends. The battlefields are not only in Afghanistan, where U.S. forces continue to fight Al Qaeda’s Taliban allies, but in countries around the world, including the United States.
Holder was not just speaking figuratively. In response to a question from Sen. Lindsey Graham (R-S.C.), he said that if someone suspected of helping to finance Al Qaeda were captured in the Philippines, far from any scene of combat, he would still be considered “part of the battlefield.”
The implication—acknowledged by Holder and by Elena Kagan, Obama’s choice for solicitor general, at her confirmation hearing this month—is that such a person could be held as an “enemy combatant” until the “cessation of hostilities,” which in this case effectively means forever. So could, say, leaders of a U.S.-based Muslim charity suspected of funneling money to a terrorist organization or a graduate student at an American university accused of helping Al Qaeda raise funds and attract followers by maintaining a website where incendiary anti-American messages were posted.
Both kinds of suspects have been successfully tried in criminal courts, with one case resulting in convictions and the other ending in acquittal. But under Holder’s theory, which was also the Bush administration’s, the government need not have bothered; it could simply have transferred these defendants to military custody, where they could be held indefinitely without trial.
Peter Boettke at “The Austrian Economists” says that we are not heading towards socialism, but 20th century’s other “ism” – the F-word – fascism. He then tells the story of a German girl who was put to death by the na-zi regime-
We are in trouble but it is a crisis of ideas that is most troubling. We are marching toward corporatist system as fast as the votes will take us. Who will say NO to this?
I know this sounds dramatic, and I don’t know the full story behind the history, but in watching all of this unfold before my eyes these past several months I was reminded of the White Rose student led resistence movement in Nazi Germany. A group of students from the University of Munich, inspired by an activist theologian and a philosophy professor, took pen to paper and challenged Hitler’s regime, exposed its crimes, and challenged the German people to wake from their fear induced stupor. Sophie Scholl was one of the leaders of this group and she along with others were executed by beheading in 1943. But her words are an indictment of complacency in the face of encroachment on human freedom and human decency. Sophie Scholl wrote the following about teh damage to the German people caused by fascism: “The real damage is done by those millions who want to ’survive.’ The honest men who just want to be left in peace. Those who don’t want their little lives disturbed by anything bigger than themselves. Those with no sides and no causes. Those who won’t take measure of their own strength, for fear of antagonizing their own weakness. Those who don’t like to make waves or enemies. Those for whom freedom, honour, truth, and principles are only literature. Those who live small, mate small, die small. It’s the reductionist approach to life: if you keep it small, you’ll keep it under control. If you don’t make any noise, the bogeyman won’t find you. But it’s all an illusion, because they die too, those people who roll up their spirits into tiny little balls so as to be safe. Safe?! From what? Life is always on the edge of death; narrow streets lead to the same place as wide avenues, and a little candle burns itself out just like a flaming torch does. I choose my own way to burn.”
A wrote about a similar case, this time in the Soviet Union, a couple of months back – “Three minutes of freedom”.
I will end with some words from Karl Popper-
It is wrong to think that belief in freedom always leads to victory; we must always be prepared for it to lead to defeat. If we choose freedom, then we must be prepared to perish along with it. Poland fought for freedom as no other country did. The Czech nation was prepared to fight for its freedom in 1938; it was not lack of courage that sealed its fate. The Hungarian Revolution of 1956 — the work of young people with nothing to lose but their chains — triumphed and then ended in failure. … Democracy and freedom do not guarantee the millennium. No, we do not choose political freedom because it promises us this or that. We choose it because it makes possible the only dignified form of human coexistence, the only form in which we can be fully responsible for ourselves. Whether we realize its possibilities depends on all kinds of things — and above all on ourselves.