Explained: ‘Freedom’ to express oneself, but within limits

In India, the Constitution guarantees free speech but not the right to offend. A look at what has constrained and qualified that right.

Written by Seema Chishti | New Delhi | Published:January 16, 2015 1:08 am

French weekly Charlie Hebdo’s defiance in publishing a cartoon depicting the Prophet following a deadly attack in Paris by terrorists, and Tamil author P Murugan’s decision to withdraw his works following protests have reignited the debate on freedom of expression, both at home and away. In India, the Constitution guarantees free speech but not the right to offend. A look at what has constrained and qualified that right, by way of law, precedent and politics.

How free are Indians to express themselves?
Article 19(1)(a) of the Constitution makes the “right to freedom of speech and expression” a fundamental right. But it is not an absolute right; there are qualifiers.

What are those qualifiers?
The First Amendment to the Constitution, made on June 18, 1951, states that “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” will be paramount and freedom of expression will not be unconditional.

What led to the amendment?
Journalist Romesh Thapar’s left-leaning magazine Cross Roads had been banned for being critical of Nehru’s policies in Madras. Thapar challenged the ban in the Supreme Court, which lifted the ban in May 1951. After that, independent India’s first government added the caveat to the right to freedom of speech and expression.

How does the constitutional position get reflected in laws ?
The Indian Penal Code has several clauses that make it contingent upon the person “expressing” himself or herself not to hurt sentiments or cause public discord, something that is open to interpretation.

Section 153A: Deals with words, spoken or written, or representations that promote disharmony and feelings of enmity, hatred or ill-will between groups. The penalty is 3 years in jail and/or fine.

Section 292: Makes obscene publications (book, paper, pamphlet, writing, drawing, painting, representation, figure or any object) an offence. The penalty is 2 years (first conviction) or 5 years (second conviction), and/or fine.

Section 295A: Criminalises “deliberate and malicious acts, intended to outrage religious feelings, including words, signs, visible representations”; entails 3 years and/or fine.

Section 298: Penalises the “utterance of words” that might hurt the religious feelings of any person; the penalty is 1 year and/or fine.
There are other laws including the Indecent Representation of Women (Prohibition) Act of 1986, and the SC and ST (Prevention of Atrocities) Act enacted to protect specific sections from representations and speech which they find offensive or which mocks or insults them.

How does the law address new, technology-enabled forms of expressing oneself?
The IT Act of 2000 has been the subject of much debate. Its Section 66A defines the punishment for sending “offensive” messages through a computer or any other communication device such as a mobile phone or a tablet, a conviction fetching a maximum of three years in jail and a fine. What is offensive, however, is subject to interpretation. The Supreme Court has been looking at the section’s constitutional validity for nearly a year now and said last month that it lacks clarity and is open to misuse. Cases under this recently include the arrest of two girls by Thane police in 2012 over a Facebook post, the arrest of Jadavpur University professor Ambikesh Mahapatra for forwarding a caricature on Mamata Banerjee on Facebook, and the arrest of Aseem Trivedi for drawing cartoons lampooning Parliament and the Constitution to depict their ineffectiveness.

After they expressed themselves…

Salman Rushdie: The Satanic Verses was banned in 1988, and he was denied a visa for a number of  years.
James Laine: Mobs vandalised the Bhandarkar Library to protest his characterisation of Shivaji.
M F Husain: His paintings were often difficult to display because of the protests they generated.
Wendy Doniger: Her books on Hinduism were not banned but publishers were convinced to withdraw and pulp these.

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