In the case of free speech jurisprudence in India, history repeats itself — first as tragedy and then as greater tragedy. The Sudarshan TV case, at one level, is very simple. 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. 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. In some ways, cases like this one are a repeat of the tragedy of 1951. It has been pointed out (most recently by Tripurdaman Singh, in Sixteen Stormy Days), that India’s First Amendment, enacted by Nehru, was a betrayal of liberal values. But the underlying structure of the problem was similar.
The government feared that if it did not have the power to regulate speech, all kinds of communal and insurrectionary venom could spread through society. The defence of a fragile republic required the state to be armed with the power to regulate speech. The spectre of hate and violence got the state to betray its own liberal commitments. And then began India’s crooked journey on free speech. Liberals never acquired the confidence in the demos to let go of these crutches of state regulation in the name of defending the republic. The Right used such protections as it had to spread its hate and its dog whistles. And whenever it was questioned, it weaponised free speech arguments to expose liberal hypocrisy, even as it itself cracked down on dissent.
This uneasy equilibrium still allowed Indian democracy to survive so long as hate was within certain bounds. The use of state power, while sometimes unjustified, was also still within bounds that could be contested. What kept the republic together was not the consistency of principle or the majesty of law, but elements of a political culture and fragmentation of power. What makes the crisis of free speech deeper now is that both ends of the problem have intensified. The spread of hate speech and its political consequences are now infinitely greater. The precedents of a Rwanda-like situation, where communication mediums are used to target communities, are not outside the realm of possibility. It is for this reason we still have so many restraints on speech.
On the other hand, the spectre of authoritarianism is also greater. And here is the dilemma. Almost every regulation of speech, no matter how well intentioned, augments the power of the state. But now, in the current context, where to all intents and purposes most independent institutions have crumbled, empowering the state is a frightening prospect as well. In the Fifties, we arguably feared hate more than the state. But now, when we fear both hate and the state, to whom do we turn?
This background needs to be kept in mind when thinking about cases like Sudarshan TV. 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. 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. We can make all the fine distinctions we want between different forms of speech. But the blunt truth is that the more the state regulates, the more it politicises the regulation of speech, and ultimately legitimate dissent will be the victim.
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. Or should we not draw the lesson that any regulation is only as good as the political culture that supports it? Third, it is true that the structures of democratic deliberation are deeply broken. But there is a deeper political economy here. Social media operates on a set of monetising incentives. But broadcast media has also been the creation of a particular kind of political economy. The granting of licences has always been a political affair; the pricing structures set by the TRAI have perverse consequences for quality and competition. Our current media landscape is neither a market nor a state. The more the underlying political economy of media is broken, the less likely it is that free speech will stand a chance.
This is an area that does require serious thinking: Not post facto content regulation, but a market structure that can help provide more checks and balances, and not let bad media drive out good. But with all due respect to the Supreme Court, this is something for Parliament to think about. The Court suo motu setting up a regulatory framework does not inspire confidence. It is not its jurisdiction to begin with.
The need for more regulation for speech, the fear that it can incite, is also always a judgment on the people. When we regulate speech too much, we are not just targeting the speech. We are in effect saying: We cannot trust the people to make the right kinds of distinctions. 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.
This article first appeared in the print edition on September 19, 2020 under the title ‘Between hate and state’. The writer is contributing editor, The Indian Express.