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Wednesday, April 14, 2021

377 reasons for free speech

The liberal response to the Gujarat ban was too tepid...

Written by Prithviraj Datta |
September 12, 2009 2:58:23 am

The recent controversy over the Gujarat government’s ban on Jaswant Singh’s book is sadly illustrative. On the one hand,proponents of the ban relied on hackneyed arguments to justify it — raising fears of law and order concerns,asserting that the book undermined the image of long-dead luminaries,or that it hurt “patriotic sentiments”. Given that each of these grounds is mirrored in provisions of the Indian Penal Code,one may fault the Gujarat government for demonstrating a lack of imagination,but not a lack of strategic judgment,in defending the ban. What is more perplexing,however,is the uninspired nature of the response to the state government’s decision. For the most part,the liberal response was wholly reactive to the justifications supporting the ban. Liberals argued the ban was bad because law and order concerns were insufficient to justify restricting free speech,that the concerns of the dead should not trump the speech rights of the living,and that the term “patriotic sentiments” was not sufficiently definite to justify curtailing expression. They rarely offered their own justifications for the defence of free speech. This reactive defence of free speech is problematic,because it makes the right to speak one’s mind dependent on empirical factors, like the possibility of riots,not on normative considerations.

It is interesting to compare the poverty of the liberal response to state censorship of expression with the invigorating defence of Delhi high court’s reading the IPC’s Section 377 down. Liberal commentators employed a two-pronged analysis then: on one hand,countering the arguments of reactionaries who believed that homosexuality violated India’s social fabric,and on the other,making a strong positive case for the value of same-sex relationships. You never got the impression from that debate that the sexual freedoms of millions depended on the paucity of convincing homophobic arguments.

The failure to put forth an affirmative case for politically controversial speech is particularly surprising given that the basic ground for protecting gay rights also extends to protecting such speech. The demands of minority protection,as the Delhi high court superbly demonstrated in its judgment,undergird all our fundamental rights: “public animus and disgust towards a particular social group or vulnerable minority is not a valid ground for classification” which singled that group out for discrimination by the state. The constitutional guarantee of equal protection under law,the court held,requires at the very least that all citizens be capable of enjoying their fundamental rights and civil liberties equally,without being arbitrarily subject to the coercive apparatus of the state. Subjecting gays in particular to the rigours of a criminal law,and in effect rendering them second-class citizens,is a manifest denial of their constitutional right to equality.

The high court could not have reached this conclusion if it did not first take a position on the moral significance of sexual identity. In order to show that the sexual identity of gay men was linked to their feelings of self-worth and dignity,the court treated sexual identity as being fundamentally constitutive of who we are,and hence deserving of special treatment in light of the Constitution’s commitment to protecting human dignity. A very similar argument can be made for protecting expression which offends the sensibilities of large chunks of our population. The freedom of expression is not a constitutional guarantee which exists solely for the purpose of ensuring that citizens are kept informed about the activities of their government. Like the right to equal protection of the laws,expression deserves heightened protection because the espousal of one’s views and beliefs is regarded as being fundamental to one’s identity. Since human beings rarely exist in a social vacuum,our ability to communicate to others,and be receptive of their responses,is an important determinant of who we are. Much like one’s sexual orientation,therefore,one’s ability to disseminate one’s views should not be subject to censorship where it contradicts the views of others,and causes them offence. In such a case,the constitutional mandate of equal protection will be violated,for one’s ability to express one’s identity will be made entirely subservient to the demands and feelings of one’s community. A state which permits individual freedoms to be restricted in this manner is not a state which respects liberty. Such a state is also incapable of respecting equality.

If we truly cherish liberty and equality,then it is important that we recognise the similarities between the protection of sexual identity and of offensive speech. They are protected not because the arguments for their proscription are unsound or illogical,but because,in a liberal constitutional system,the expression of one’s identity is treated as being of the highest possible value. It is time we stopped allowing the moral police to set the agenda,and the limits,on discussions about the extent of our constitutionally guaranteed freedoms.

The writer is in the department of government at Harvard University

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