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Tuesday, October 20, 2020

An act of judicial statesmanship

SC order on Sudarshan TV brings clarity to the issue of freedom of speech, advances law in the context of hate speech

September 22, 2020 9:11:55 pm
Sudarshan TV, UPSC jihad, Sures Chavhanke, supreme court, SC bench sudarshan TV, indian expressSuresh Chavhanke

Written by Rahul Narayan

Liberty of the Press is rightly revered as a cardinal value in all free societies. However, this liberty has never been absolute and has always been subject to restrictions. Under our Constitution, Press freedom is included in the guarantee of free speech contained in Article 19(1) of the Constitution and is subject to reasonable restrictions on grounds as contained in Article 19(2).

We accept, albeit reluctantly, that some level of restriction on free speech is inevitable in every society, including ours. What we must insist on, though, is that these restrictions must be principled, objective, non-arbitrary and ought not to depend upon the identity of person censoring or being censored. What should concern us is, one, where to draw the line in a way that speech is limited in a manner that is “reasonable” and which is closely tailored to particular objects that deserve protection; and two, how such limits on speech are enforced.

It is in this regard that the orders passed by the Supreme Court staying the telecast till further orders of the programme called Bindas Bol by Sudarshan TV must be considered as significant in terms of clarifying the law and advancing it in a principled manner.

To the extent the orders of August 28 and September 15 restricted Press freedom, they did so in the aid of other equally important constitutional values — equality and fair treatment of all. The Court thus balanced Press freedom with equality and fair treatment thereby at first refusing relief to the petitioners on August 28, but later, allowing interim relief on September 15 upon a closer examination of the telecast in question. If Press freedom is to be restricted, we can hardly do better than have such restrictions result from a principled balancing of equally important constitutional values by the custodians of the Constitution.

The Court has also advanced the law in terms of how it can deal with what the petitioners claim is “hate speech” by an interim injunction on telecast till the serious allegations can be looked at and considered. This has been described as a species of “prior restraint”, a kind of press restriction that should almost never be granted by any nation that values free speech.

Prior restraint or restraining a publisher from publishing the offending material at all has been an anathema since the late 1600s when England got rid of licensing laws and allowed a free press that did not need anyone’s permissions to publish. Since that time the traditional remedy of those who have been wronged by offensive speech has been legal action, apologies and damages after the same has been published. On occasion, the offending speech or article has been removed to the extent possible from public domain.

Hate speech offers no such convenient absolution. The harm of hate speech is the systematic undermining of the equal standing of persons, rendering them vulnerable to attacks, discrimination and worse. The injury is diffuse among large groups and may act insidiously and indirectly. How do you remedy when vilification of a group occurs at a mass scale? Who is the person who can take action for the wrong suffered by a community? What serves as recompense for the loss to human dignity caused by people treating you as a lesser human?

At least two of the greatest tragedies of the 20th century — the Holocaust and the Rwandan genocide were made possible because of the widespread prevalence of hate speech against the Jews or the Tutsis. Journalists and publishers have been convicted of war crimes and even genocide.

Faced with this conundrum where traditional remedies are of no avail, the Court has chosen a principled and reasonable procedure by staying the telecast subject to more detailed review. If it is not hate speech, the telecast will resume in a few days. Then, the only consequence would have been a delay from its original schedule. This is inconvenient just as elaborate security drills that impede driving are inconvenient — a price paid to ensure safety and security. Vindication from serious charges by the Supreme Court of India may even add more viewers to the programme. If the telecast does comprise of hate speech, the stoppage of the telecast will further constitutional values and nip in the bud the pernicious possible consequences on our social fabric.

Making a limited principled exception to the traditional doctrine of prior restraint in cases with serious allegations of hate speech is an act of judicial statesmanship that is worthy of commendation. This exception is premised on the peculiar nature and harms caused by hate speech, which peculiarity offers a natural stopping place for the exception in comparison to the general rule prohibiting prior restraint. Rest assured free-speechers, no slippery slope here.

The writer is Advocate on Record, Supreme Court

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