My column appeared in the DNA on Republic Day rather appropriately (it usually appears on a Monday) . It deals with the issue of reasonable restrictions on free speech & the 1st amendment to the Indian Consititution that possibly needs to be repealed..
This week, India celebrates the 62nd year of being a Republic. On a cold winter’s day on the January 26, 1950, the Constitution of India came into effect. In one stroke, it decimated millennia of institutionalised discrimination, inequality, bias, bigotry and prejudice. It put the rights of the individual above age-old strictures — the right of women, people irrespective of caste, and tribal people. It guaranteed justice, equality, and freedom, irrespective of gender, caste, community, or any other grouping within its boundaries. The Constitution enshrined six fundamental rights – The right to equality, right to freedom, right against exploitation, right to freedom of religion, culture and educational rights and finally the right to constitutional remedies that allow you, the citizen, to take on the whole system — organised religion, the State, society — to ensure that your rights are not violated.
On the face of it, the fundamental rights enshrined in the Constitution would give Indians the greatest freedoms possible in the world. But, that is not the case. Our freedoms are not absolute. There are what is called reasonable restrictions on our freedoms, especially the freedom of speech and expression.
Article 19 of the Indian Constitution deals with the protection of rights regarding the freedom of speech — including the right to express, the right to peaceful assembly, the right to form associations and unions; the right to move freely throughout the Indian Union and settle anywhere within its boundaries; and to practise any trade, any occupation that one chooses. Theoretically, this means that you can write and publish The Satanic Verses in India; as a private group, you can hoist the flag at Lal Chowk in Srinagar; that you can belong to SIMI; that you can freely settle in any part of India including Jammu and Kashmir; and that you can run a beef stall in Madhya Pradesh or a liquor shop in Gujarat. But, we know that none of that is true. We have freedom but not absolute freedom. So how did Section 19 of the Constitution that guarantees you so many freedoms become so restrictive?
The answer is the First Amendment to the Indian Constitution. The first amendment in 1951 sought to curtail the freedom of expression as laid down in Article 19(1). The reason stated for this amendment was, “The citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence.’
It is ironic that the First Amendment to the American Constitution made the freedom of speech an almost absolute right, while the first amendment to the Indian Constitution took an absolute right and (reasonably) restricted it. The amendment modified absolute rights to relative rights and said that these reasonable restrictions were in the interests of the general public.
The question is what is reasonable? Is it reasonable to burn the Indian flag as an act of protest? Is it reasonable to garland a statue of a dead king with slippers? Is it reasonable to kill a cow and eat its meat? Is it reasonable to question the existence of god? Is it reasonable to ask for independence? Is it reasonable to paint pictures of the Prophet Mohammed? Is it reasonable to question the historical veracity of the Ramayana and the Mahabharata? Is it reasonable to fly the Pakistan flag as a sign of friendship? All of these are various forms of expression. The question is not whether you approve of these or not. The question is do people have the freedom to express their views without fear of arrest or reprisal.
Reasonable restrictions have been exploited by political parties, and communal leaders to deprive individuals of their freedoms using the threat of communal riots and violence to curtail expression. The State has buckled under the pressure over and over again. As a result, individual rights have been sacrificed at the altar of buying peace. The State needs to stop using ‘reasonable restrictions’ as a crutch and back individual liberties as laid down in the Constitution. It is not the role of the government to determine whether a restriction is reasonable or not. Its job is to provide security to the individual to practise their freedoms without fear. Maybe it is time that they got rid of the ‘reasonable restrictions’ vis-à-vis free speech and restore our freedoms to those guaranteed 62 years ago on the first day of the New Republic.