India's Silenced Daughters

Unless we can find a reasonable way to extract ourselves out of the Audience Reaction Test and the compulsions of public order, it may be RIP, Indian Freedom of Speech

We may not have noticed but India seems to be having a Charlie Hebdo moment. Given the rioting in Rajpath in December 2012 following the horrific Nirbhaya Rape case, the Government has moved to pre-empt public outrage over Leslee Udwin's documentary "India's Daughter" by banning it. I dislike bans, be they books, movies, taxi services or even BT Brinjal. That doesn't mean I like murdered journalists, nor do I think that widespread rioting and violence is a necessary sacrifice to secure an extreme form of perfect personal liberty. Blowing still in the wind is that frustrating question again: how far do you want your freedom of speech to go? 

Our founding fathers who framed our Constitution thought they had a very clear answer when they constituted us into a democratic republic. Article 19(1)(a) therefore gave us 'freedom of speech and expression' but restricts this right "in the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence." In the years since we adopted this constitution, we have framed an awful lot of laws to restrict this right. These laws have taken their share of judicial scrutiny. 

Judicial thought on this critical aspect of modern liberalism is echoed in a succession of Supreme Court decisions. K.A. Abbas v. Union of India [AIR 1971 SC 481] arose when a lefty pioneer of neo-realistic cinema made a documentary called 'Tale of Two Cities' juxtaposing shots of buildings with the squalid slum-side lives of those who built these edifices. He threw in images of prostitutes for good measure. The Censor Board approved the movie for adult viewing only and Abbas went to court to claim a "U" certificate. Did pre-censorship violate his fundamental right to speech and expression? The court did not agree. It ruled that movie censorship had been established by law and it set out a very precise criteria of acceptability, placing limits on issues around 'seduction,' 'immoral traffic in women,' 'soliciting, prostitution or procuration (sic),' 'indelicate sexual situation' and scenes suggestive of immorality,' 'traffic and use of drugs,' 'class hatred,' 'blackmail associated with immorality', etc. That said, the court also observed that the artistic merit of what is presented ought to be in the mind of the censors as they made their decision. 

The court's view had evolved a great dealin the four decades since K.A.Abbas. WhenAjay Goswami [2007(1) SCC 143] complained to the court that the newspaper industry was distributing material harmful to children, especially photographs, the court refused to intervene, making several points. It said a free press was central to our democracy and news items should not be read in isolation. It said to ban certain photos would mean that all journalism would be for children only. The Court also observed that a "fertile imagination of anybody especially of minors should not be a matter that should be agitated in the court of law. Any hypersensitive person can subscribe to many other Newspaper of their choice". It called instead for a culture of 'responsible reading'!

The same culture of liberal plurality informed the Supreme Court three years later inS.Khushboo v Kannaimmal [(2010) 5 SCC 600] when the well-known actress faced a spate of criminal cases because she publicly stated that pre-marital sex was okay. Shorn of the technical issues thrown at the court, it basically took the view that "it is not the task of the criminal law to punish individuals merely for expressing unpopular views" and "we must lay stress on the need to tolerate unpopular views in the socio-cultural space". It also observed that those who disagreed with Khushboo could have "contested her views through the news media or any other public platform". 

I do note that much of the Supreme Court's pronouncements ride on the premise that the law is being used to throttle free speech. Naturally, the issue gets obscured when the throttling is done by the police. Were the police justified in stopping Salman Rushdie from addressing the Jaipur Littfest back in 2012 (see The Joust In Jaipur)? Should college professors go to jail for circulating cartoons about politicians (see Dour Desis & Diabolical Diatribes)? In both cases, the police acted peremptorily, and that kept the spotlight squarely on administrative discretion. That same spotlight now focuses on the banning of 'India's Daughters'. The dominant discourse though seems to have taken a substantial new turn. It seems to me that following the Charlie Hebdo massacre, the right to free speech is increasingly being debated in the context of itsimpact on the subject of the speech. Call it the Audience Reaction Test. This is a particularly difficult argument because now, there remains no objective standard by which the limits to freedom of speech can be judged. Let me explain. 

You don't need the great Japanese director Kurosawa or his movie "Roshoman" to tell you that each of us contextualises and interprets events, even life, in the light of our personal perspective. There is indeed no objective reality: all of us process data differently to come to entirely different conclusion about what is going on out there. I saw "India's Daughters" and I thought it was a fitting portrayal of the cultural challenge India has to meet if it's to evolve into a society that respects its women. My business partner and lawyer Rakesh Ojha does not agree. He saw it as a species ofpost-colonial poverty porn leering at deprivation in slums edited like a B movie and said nothing about the pace with which India radically changed its Rape Law to address the issue, to say nothing of the lightning speed with which the Judiciary moved to convict the perpetrators of this crime. He didn't spot its redeeming features, if indeed it had any. Nirbhaya's friend Avanindra Pandey who fought with the rapists to save his friend doesn't see it like either of us. He reportedly told IBN Live that "The documentary is unbalanced as the victim's viewpoint is missing. The facts are hidden and the content is fake." 

My take-away from these diametrical conflicting conclusions is simply that the Audience Reaction Test is deeply problematic because no two subjects will ever understand your free speech in quite the same way. To add to the difficulty, we live in a plural society where cultural contexts are radically varied. Not only do people understand the same speech differently, the context in which they interpret its meaning varies widely. Within the one square kilometre area that is my colony, we have house owners who are working to develop technologies that will rule our lives in 2020 and construction labour from rural Jharkhand who Haryana's famed Khap Panchayats would consider ridiculously backward. When you make a generic movie about rape, which exactly is the standard for your Audience Reaction Test? 

At the end of the day, it inevitably comes down to the police limiting the freedom of speech in order to maintain "public order", exactly as Article 19 (2) had foreseen. The court has had many occasions to rule on this power, and generally in favour of maintaining public order. They have also specifically noted that the power to restrict free speech "in the interest of public order" is much wider than if it had been a power to restrict speech only for the "maintenance of public order" [Ramjilal Modi v State of UP 1957 SCR 860]. So, whether you like it or not, the bottom line in India is public order, not freedom of speech. You have freedom of speech only so long as no one wants to get rent a mob, torch a truck or two on the highway, and decimate your freedom. This is worrying because in a country of 1.25 billion souls, if only 1 per cent are outraged over anything, you are looking at an awful number of cranial haemorrhages unfolding in full public view to the hysterical excitation of frontline reporters frothing at the mouth as they whip up the TV ratings. Just this morning, a Chennai news channel has had a crude bomb thrown at it for questioning the relevance of a Mangal Sutra to modern life. Thus, my fundamental rights are controlled not by the rule of law, but by the ability of a mindless mob - politically motivated or not - to set fire to city streets. In practice then, the compulsions of public order come down to never saying anything that could possibly offend anyone anywhere anytime. The only way to achieve that is to never say anything at all. So, unless we can find a reasonable way to extract ourselves out of the Audience Reaction Test argument and the compulsions of public order, I must reluctantly conclude:RIP, Indian Freedom of Speech. 

Ranjeev C. Dubey, Advocate

Managing Partner

N South Advocates

www.nsouthlaw.com