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Ideas and their limits

Ranabir Ray Choudhury
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Courts have a duty to strike a balance between free speech and social harmony.
— Rajeev Bhatt
Courts have a duty to strike a balance between free speech and social harmony. — Rajeev Bhatt

An important point was raised at the recent Supreme Court hearing of a petition on remarks made made by a social psychologist (the remarks were construed to have hurt the sentiments of a section of Indian society). To a direct question put to the Bench by a counsel on whether an “idea” could be penalised under the law, the short and pithy answer was a resounding “yes”.

On the face of it, the stand of the Court is easily understandable and also acceptable. This may be opposed by some on the ground that it infringes the fundamental right of a citizen to free speech and expression, which is, of course, sacrosanct in the Constitution. But this is only one side of the picture.

There is another side as well, namely, the duties enjoined on the citizen — written or otherwise — without the effective implementation of which the rights guaranteed to citizens could become meaningless..

Mired in complications

However, certain situations may arise where the simplicity of the above maxim can be mired in complications, which the court would then have to pronounce on.

Take the case of someone who, in the form of an idea, feels strongly about the inadequacy of the existing Constitutional scheme of things and would like drastic amendments to the structure of the Constitution, which would even affect its “basic structure”.

This is not a new issue and the Supreme Court has already pronounced on it, but this certainly cannot be the end of the matter.

A nation, being a living entity in that it is continually evolving just like the people, must also have a flexible Constitutional structure which adequately reflects (and also perhaps guides) the changes. Therefore, when a citizen brings the issue to the notice of the public, either in written form or by the spoken word, what should the court’s stand on the matter be?

Balancing act

The moot point here is: Is there a constituency in the country which would like an “unfettered” right to express ideas whatever they may be? In plainspeak, are there people who would like to place the right to say whatever they would like to say on the highest pedestal, irrespective of whether what they say could have an ugly, albeit unintended, impact on others?

Since ideas are the stuff of life — and progress — their generation should be encouraged as a matter of State policy, the State, of course, having no right whatever in designating an idea right or wrong, good or bad.

But since ideas can change the world, they can also be powerful enough to hurt sections of society, and it is here that the legal guardians of the State will have to step in and provide a balance. This job of providing a “balance” will be termed as a regressive attribute of the judiciary, because it will be interpreted as interfering with the free flow of ideas.

But then, if such interference is required to maintain peace and harmony in society, to what extent can such an act be described as being regressive?

Clearly, the thinking brigade has to be more circumspect these days than earlier in proposing provocative social ideas. This may be put down to a “deterioration” in social conditions, but then this is a fact of life that one faces.

(This article was published on February 13, 2013)
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Comments:

The complex issue is, are there at least some broad principles, such
as non-violence, which should constitute reasonable restrictions on
the freedom of expression. For example, we keep protesting that
Pakistan is not taking any action against Hafiz who is inciting
violence against India. Even in India, there is a large section of
people who sincerely feel that the well-entrenched, unjust system
which promotes the interests of dynasty, rich and powerful, cannot be
changed by non-violence. Gandhiji was lucky that the British did not
take extreme step against him and they believed in what they feel was
rule of law. Would Gandhiji have been allowed to continue his
Satyagraha, if the imperial state was China and not Britain? I think,
we cannot ever be 100% sure on the issue of limits to freedom of
expression.

from:  Vinay Shah
Posted on: Feb 14, 2013 at 07:52 IST

An amendment has to be made to the Article 19(2)... The subjective words "reasonable restrictions" should be removed. There should be no restrictions, whatsoever, on, the freedom of expression of an individual. Free speech does not only impact public speech. It impacts every individual's day to day life. Such subjective clauses like "reasonable restrictions" give enormous powers for misuse by political class, police, law agencies and their like. A low lying police officer can always arrest someone citing "reasonable restrictions"...
About this article, I am surprised that the bench has said, an idea can be charged in court, but then the bench is of a third world country and hence no doubts it also reflects public opinion of third world masses.
The thing is, there are no ifs and buts to free speech. Right to offend should be made a part of right to free speech too, so we can say, it is your right to get offended and so don't complain. :))

from:  Venkat
Posted on: Feb 14, 2013 at 09:55 IST
This article is closed for comments.
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