SC comments in Nandy case aren't good for free speech

After all the trouble over Ashis Nandy’s controversial statements on corruption at the Jaipur Literary Festival (JLF), and the heave-ho given to Salman Rushdie in West Bengal, the last thing we needed was further evidence from the Supreme Court that we are an illiberal country. But this is what we got when Nandy obtained a stay on his arrest from the Supreme Court, but he has no reason to rejoice. Accompanying the stay was a verbal tongue-lashing from the court that bats less for free speech and provides an opening to organised groups to claim hurt and seek to gag someone they dislike. [caption id=“attachment_611115” align=“alignleft” width=“380”]  Ashis Nandy. PTI.[/caption] Granted, Nandy was less than charitable to OBCs and SC/STs when he claimed that “most of the corrupt come from the OBCs and the scheduled castes and now, increasingly, scheduled tribes, and as long as this is the case, the Indian republic will survive.” (Read the full text here_)_ He has been widely criticised for these remarks. But what he can be held guilty of is over-theorising on the basis of very little evidence , not a deliberate attempt to run down the backward classes of whom he has been a champion. But consider what the Supreme Court told him while setting aside orders for his arrest based on FIRs in many places. The reportage in The Indian Express quotes the Supreme Court bench as saying that Nandy’s remarks were “unacceptable” and he had “no licence” to make such statements. Does one require a licence to make such statements? When Nandy’s counsel Aman Lekhi asked if a mere idea could be penalised under the law, the bench headed by Chief Justice Altamas Kabir responded with a clear ‘yes’. The judge said: “Yes, an idea can certainly be punished under the law. An idea is a summation of verbal acts and it can be penalised. Are you now supporting the idea that you expressed? Your petition says your remark was distorted.” When Lekhi pointed out that Nandy had later given a context to his statement and also denied any intent to hurt anyone, the court was not mollified: “It is not just one idea; it’s the idea that is creating all sorts of problems. An idea can always hurt people. This is not the way you will express your idea… something comes in your head and you go on saying it, we are not all happy with it. Why do you make such statements? If statements are to be made, they must be made with a sense of responsibility. Howsoever abstract an idea could be, you cannot go on saying things like this.” (Italics ours) This is from the Supreme Court, mind you, not from the detractors of Salman Rushdie, that “an idea can hurt people” and so it should, preferably, not be said. So if an idea creates “all sorts of problems” it should not be said? Once again, this is not J Jayalalithaa justifying the reason for banning Viswaroopam, but the Supreme Court on Nandy’s injudicious remarks at the JLF. But there’s more. It was not a stray statement by the Supreme Court. The bench told Lekhi: “He cannot continue making statements like this. Whatever may be your intent you cannot go on making such statements. Tell your client he has no licence to make such comments. We are not going to accept it.” Has the Supreme Court already made up its mind about Nandy’s guilt, as is implied in the observation “we are not going to accept it?” And there’s even more. When Lekhi made a point questioning the need to file so many FIRs, the court, far from being sympathetic about the potential for harassment of Nandy, made this comment, according to the Express: “Why not more than one FIR can be lodged? It affects people all over. If people are offended in different parts of the country, there will be many FIRs.” Surely, the court is going over the top here? How has it come to the conclusion that “people are offended in different parts of the country…”? Tomorrow, any citizen can be harassed for an intemperate statement by being forced to face several cases all over the country. Is this what a Supreme Court judge should be saying, even as a passing remark? And some more tough words. Lekhi apparently told the Supreme Court about the atmosphere of hysteria being built over Nandy’s statement. To which, the court responded: “Who is creating hysteria? It is certainly not us… Who is the author of the statement? Who made such statements? Don’t blame others for it now.” In one stroke, the highest court of the land seems to be suggesting that Nandy has created a problem for the country by his observations. Nandy may have done himself and the nation a disservice by his ill-thought-out remarks, but the Supreme Court’s remarks could not but have warmed the hearts of every community censor who wants to ban someone. The court’s statements do not count as support for freedom of speech, even if this freedom may have been abused in some cases. Like Nandy, it could also have left some things unsaid.