In principle, Indian law allows prior restraint on broadcasting. This prior restraint should be used sparingly and must meet a high constitutional bar. Indian law also allows regulation for hate speech, which is different from offensive speech. Hate speech often targets and degrades a community.
So, as the law is currently constituted, the issue seems to be simple: Was Sudarshan TV’s programme, Bindas Bol, as clear-cut a case of hate speech as one can see? “Certainly, the material available in the public domain suggests that the show is vile,” writes Mehta.
The Court passed an interim restraining order and will presumably settle the matter based on a careful consideration of the content. “But whichever way this case turns out, it looks like dark days are ahead for both democracy and freedom,” opines Mehta.
“The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue. The big lesson of the last two decades is that an over-reliance on legal instruments to solve fundamentally social and political problems often backfires. In the case of free speech, this is even more so,” he writes.
“First, if you look at the larger politics, the game of the Right is to trap liberals into being the censoring party. They get more mileage and victimhood, and create more scepticism about constitutional first principles by showing that when it comes to the crunch no one believes in free speech”.
“Second, there is a whole bunch of laws and regulation already on the books, from the Cable Broadcasters Act to the ability to sue, that should in principle provide enough restraints on the most egregious forms of speech. These have been ineffective because of institutional dysfunction. But if our institutions are truly dysfunctional, does it make sense to create another set of institutions to regulate,” asks Mehta.
“The tragedy of our situation is that hate speech mongers think hate speech makes them popular in the eyes of the people, and the state by repressing them, unwittingly confirms the argument. If the people don’t want to be saved from both the power of hate and the power of the state, the law will be a feeble instrument to save them,” he concludes.
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