Facebook arrests over Thackeray: Case for unshackling free speech

In a nation of a billion-plus people, with staggering levels of in-your-face mass poverty and enormous developmental challenges, it may seem a bit of a quaint chatterati luxury to fret about the abridgement of one's freedom to post dissenting messages on social media freedoms.

After all, when the most fundamental of rights — the right to life — is itself susceptible to assaults on a daily basis for millions of Indians, to give in to outrage over the limitations on free speech on the margins may seem a bit like the parable about the man who lamented that he had no wristwatch - until he saw a person with no arms.

Yet, the case relating to the arrest of Shaheen Dhada for posting a far-from-incendiary message questioning the wisdom of a bandh to mark the passing of Shiv Sena leader Bal Thackeray - and the arrest of Renu Srinivasan for merely 'liking' Shaheen's post - is about much more than outlier rights. In many ways, it goes to the core of what we are as a nation, and  is a stern test of what passes for 'democracy'.

Shaheen Dhada (R) and Renu Srinivas in Mumbai on Tuesday. PTI

The arrest of the two young women may be the most egregious instance of encroachment on free speech, particularly since it is patently clear that they did not violate any law, but they are only the latest in a long line of instances that have taken us further down the slippery slope of censorship and vindictiveness. As with all things in India, even the debate on so fundamental an issue has been driven by political considerations.

But if free speech today faces so many encroachments, it owes a lot to the weak foundation on which the  notion of free speech rests in India. It says something about the priorities of our leaders who emerged from the freedom struggle to lead India in the post-Independence era that the first amendment that they made to the Indian Constitution was to place "reasonable restrictions" on the right to free speech (full text of First Amendment here).

(In contrast, and purely by way of proffering a distant parallel, the first amendment to the US Constitution upheld the right to free speech and made it inviolable.)

That Jawaharlal Nehru, who is otherwise held in high esteem for upholding liberal principles, bears much of the blame for that original sin says something. Over time, of course, the opacity that surrounds the expression "reasonable restrictions" has been abused by players across the political spectrum to place progressively wider and more sweeping clamps on free speech. Those "reasonable restrictions" have over time mutated and evolved to hideous proportions to the point where, today, they have become wholly unreasonable.

This slide down the slippery slope of illiberalism was enabled by the lack of clarity (or, worse, conviction) even among those whom we would consider as stakeholders in the advancement of absolute free speech. For too long now, even 'liberal' voices in the mainstream media, whom you would expect to adopt an uncompromising stand against "unreasonable" restrictions on free speech, have been shaking the pom-poms for what amounts to borderling thought policing. Far too many of them have taken a duplicitous stand where their own innate political biases (and they all do have them, however much they may pretend otherwise) determine their views on when such restrictions may be imposed, and when they will come out in defence of absolute free speech.

In many ways, the recent instances of progressively more brazen attacks on free speech ought to have given an opportunity  to acquire broader intellectual clarity - and integrity - on the issue. But, sadly, it hasn't.

Yet, the latest instance - of the arrest of Shaheen Dhada and Renu Srinivasan - has the potential to become something of a test case for redefining the concept of free speech, and how faithful we are as a society to the protection and preservation of that right.

In this context, the initiative undertaken by MiDDAY newspaper is admirable. MidDAY has drawn up a People's Freedom Charter, which goes beyond mere thunderous editorialising (which comes rather easily) to actually drawing up a template for redefining the concept of free speech, with particular focus on doing away with "draconian and ambiguous laws" that, in its estimation, ought not to be part of our legal ecosystem, and which provide the basis for successive asssaults on free speech.

The details of the People's Freedom Charter are available here, but at its core it lays out a five-point determination:

Citizens have the right to absolute freedom of speech and expression. It is our right to speak our mind and express our opinion without any fear.
Citizens have the right to question authority without the fear of retribution.
Citizens shall defend the liberty for artists and their creative freedom. Art, in any form, should flourish in an atmosphere of intellectual creativity, and should stimulate debate, not violence.
Citizens shall oppose any kind of intimidation, and shall not live in fear. Both have no place in a democracy.
Citizens shall oppose a police state. We shall defend the freedoms enshrined in our Constitution, and fight the laws tailored to be interpreted arbitrarily in favour those of in charge.

This is as good a starting point as any, but it needs citizens to become stakeholders in its implementation. This isn't s easy as it may seem, since it calls for acknowledging a point of view that is diametrically opposed to one's own just as stridently as one holds on to one's own views. And that's a test that too many, including media megastars, have failed.

Simultaneously, the legal provision that has become the instrument of maximalist misuse - Section 66A of the Information Technology Act - is being challenged in a court of law, which too should help provide greater clarity on this matter. Section 66A, as has made abundantly clear, appears to be unconstitutional, and provides far too much latitude for law enforcement officials and prickly politicians to abuse, as was revealed in the two most recent instances: the Shaheen Dhada arrest and the arrest of a Puducherry businessmen who was arrested for posting a message criticising Finance Minister P Chidambaram's son.

On Tuesday, a bench of the Madras High Court ordered notice to Central authorities as well as the Puducherrry policy on a public interest petition challenging the constitutional validity of the accursed Section 66A. The petition was filed by a human rights activist -with the unlikely name of A Marx - following the arrest of  the Puducherry businessman in the case relating to Chidabaram's son. Marx claims in his petition that Section 66A violates the Constitution.

The legal challenge to Section 66A is under way, and taken along with MiDDAY's initiative to draw up an charter to reframe the contours of free speech, the battle against illiberalism may be said to have been joined. It's about time we rescued free speech from the dungeons of the Thought Police.


Updated Date: Nov 21, 2012 11:31 AM

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