The Free Speech Journal

7/21/2019 The Free Speech Journal

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P06 REASONABLE RESTRICTIONS

The Crisis of Public Order

P03 THE PRINCELY LAW

Gandhi’s Disaffection

P10 ONE TIGHT SLAPP

Getting Silchar-ed

THE FREE

Speech Journal

To understand why, let’s

ask a more basic question.

PARRHESIA SCHOOL OF LEARNING PARRHESIA SCHOOL OF LEARNING

Our Courts are so

progressive on free

speech issues!

But that's just the

Court process ...

But the Court gave the

right decision in the end!

Why is it so easily invoked? How is

this protecting the freedom of

speech and expression?

Um, were we even listening

to the same lecture?!

You’re both right in a way.

What do

you mean?

Well, what about the fact that Laine was

harassed by being forced to be part of

the long proceedings?

... And that's how the Supreme Court

upheld the Bombay High Court's

decision, overturning the ban on

publishing James Laine’s Shivaji.



The Free Speech Journal 02

Let’s hear it from Mr.

John Stuart Mill, the

great philosopher and

political economist ofthe 19th century.

Oliver Wendell Holmes

Oh, yes, I have! And how do we ensure the

discovery of Truth? Only by allowing everyone

to speak their opinions freely so that a free

trade in ideas is possible ... And the best idea

emerges! Tell us more, Mr. Gandhi!

Sure, and that's why everyone should be able to

voice their concerns freely – and that includes

minorities, even the miniscule ones – should be

able to participate in public discourse. That's

what a democracy is about.

Mohandas Karamchand Gandhi

John Stuart Mill

Without free speech, how do we

criticise unfair government laws andmeasures? Free Speech, thus helps us

discern what is right … Free Speech is

necessary for the discovery of Truth!

Isn’t it Mr. Holmes? You have

handled enough cases as a judge

at the US Supreme Court?

Why is free speech

necessary at all?

Why is free speech

necessary at all?




THE PRINCELY LAWYoung India

We seek arrest because theso-called freedom is slavery.

We are challenging themight of this Governmentbecause we consider itsactivity to be wholly evil.We want to overthrow theGovernment. We want tocompel its submission tothe people's will.

THE PRINCELY LAW Under Section 124A of the Indian Penal Code,

individuals who speak or make any kind ofrepresentation that might incite disaffection

towards the Government or bring it intohatred and contempt are guilty of sedition.

Judge Broomfield

And to ensure that every citizen of

India is able to participate in a

democracy, our Constitution enactsArticle 19(1)(a).

In 1922, when we were definitely

not a democracy, I was put on

trial for voicing my concerns inthe newspaper, Young India.

Wait! I'm not

done yet …

All Citizens ShallHave the Right toFreedom of Speechand Expression.

ARTICLE 19(1)(a)

Let's just say I was feeling

disaffectionate.

What's so wrong

with beingdisaffectionate? I

feel disaffectionate

about my boyfriendall the time.

Well, I was disaffectionate

towards the Government… the British Government.

And they weren't nearly

as forgiving as yourboyfriend.

But what did

Gandhi say?

That soundsperfectly

reasonable …




That's what I said! Section 124 A

under which I am happily charged, is

perhaps the prince among the

political sections of the Indian Penal

Code, designed to suppress the

liberty of the citizen. Affection

cannot be manufactured or

regulated by law. I hold it to be a

virtue to be disaffected towards aGovernment which in its totality has

done more harm to India than any

previous system.

Gandhi's sentence was reduced to

just two years in prison on grounds

of health, but sedition sadly

continues to retain its “princely”

position, even though we're now

living in a democracy.

Even those who differ from you in

politics look upon you as a man of high

ideals and of noble and even saintly

life. So I'll give you the lightest

sentence possible for sedition …

I kind of likethis chap ...

Which was six

years in prison.




Tell me about it!

4’

4’3”

4’6”

4’9”

5’

5’3”

5’9”

4’

4’3”

4’6”

4’9”

5’

5’3”

5’9”

2010

BINAYAK SEN

CHHATTISGARH

THE

DOCTOR

GOES TOJAIL

THE

DOCTOR

GOES TOJAIL

Ah, of course

Mr. Sen.

inayak Sen, a health worker

and an activist working in the remoteareas of Chhattisgarh was arrested in May

2007 for sedition. Accused of being acourier between an imprisoned Maoist

leader he was treating and his comrades,the evidence against him was flimsy. It

included emails written by his wife to the

ISI (Indian Social Institute) as evidence ofISI’s (Pakistan’s Inter-Services

Intelligence) involvement.

B B

Sen’s arrest became the rallying point fora national campaign, and the medical

community joined, followed by Nobel

laureates, writers, activists and peoplefrom all over the country. He was denied

bail, and subsequently lost his case in thetrial Court in 2010, being sentenced to

life imprisonment. Subsequently, Sen was

let out on bail by the Supreme Court inApril 2011.

Activists celebrated, and he continued

his legal battle, appealing his sentence inthe Chhatisgarh HC.

But how is this stillpossible now that we're

a proper democracy?

Well, there arealways exceptions,

as long as they are

reasonable.

AND have a

constitutionally

protected right to freespeech and expression!




S. P. MookherjeeThakur Das BhargavaFrank Anthony

REASONABLE RESTRICTIONS

In 1946, the Constituent Assembly converged in Delhi.

REASONABLE RESTRICTIONS

There was excitement all around.

There was consensus on at least one point.

Pandit Nehru B. R. Ambedkar

Communal tensions

seem to be escalating!

We need to depart from the British system of un-enumerated rights

and have enumerated rights that will be listed in the Constitution.

Our American, Chinese

and Australian friends

send their best wishes!The British are

withdrawing!




The Draft Constitution in 1947 had proposed theprotection of an absolute freedom of speech,

expression and assembly under the predecessor ofArticle 19(1)(a), which was then Article 13.

The communal situationin the country is very

dangerous now. There

are riots in Punjab andNWFP, and unrest in

Assam and Bengal …

In such a time, I wonder if it

is the best idea to haveabsolute freedom of speech

and expression?

But class hatred is a

matter already addressedby the Indian Penal Code!

Debates in the Fundamental RightsCommittee were particularly heated ...

Have not all our freedom

fighters been arrested for

sedition? And the Constitutionstill intends to criminalise it?

These so called “fundamentalrights” have been framed from the

perspective of a police constable!

We should protect the right to freedom of speech and

expression under our Constitution, subject to “public order,morality, security of State and national security” and

prevent any speech which promotes class hatred andcommunal hatred”, as well as “seditious obscene and

libellous matter”.




By a quirk of history, the word

“reasonable” was left out in the finally

drafted provision of Article 19(1)(a).

Following two Court decisions whichstruck down government attempts to

ban publications from both ends of

the political spectrum, Nehru felt that19(1)(a) needed to be amended to

hold the country together and ensurelaw and order. A Select Committee

was formed, which decided tointroduce the terms ‘in the interests

of public order’ and ‘friendly relationswith states’ in the list of exceptions to

19(1) a. They also introduce the word

‘reasonable’ before the term‘restriction’ for 19(1)a.

But I made sureit got back in!

But we cannot have absolute freedom of speech!

Even the American Constitution is not absolute inthis regard, and I can cite at least one US Supreme

Court judgment restricting freedom of speech oneach of these grounds!

Finally ...

Having these restrictions under our

Constitution itself will prevent

endless litigation where courts willhave to intervene …

I move another amendment to

introduce the word “reasonable”before these restrictions suggested

by the Drafting Committee ... This will

put the soul back in Article 13.

Nothing [...] shall affect theoperation of any existing lawin so far as it relates to, orprevent the State frommaking any law relating to,libel, slander, defamation,contempt of Court or anymatter which offends againstdecency or morality or which

undermines the security of, ortends to overthrow, the State.

Thakur Das Bhargava

RESTRICTIONS

REASONABLE




Meanwhile, in the Parliament ...

This First Amendment to the

Constitution was put to vote and

passed in 1951.

No country can be governed by force

or by coercion!

State legislatures might use such

powers to crush political opposition!

S. P. Mookherjee

How many of you remember, or

have you forgotten about the

complete breakdown of law and

order during the partition just three

and a half years ago in the city of

Delhi, or in Punjab, or in that entire

body of western Pakistan? This

constitution was not there, but I am

not thinking of the constitution.

Where was freedom – not

constitutional freedom, but the

freedom of normal human impulses

– where were those freedoms?

Amongst other matters, the

amendments will help the

government curb cases of social

boycott of scheduled castes, by caste

Hindus in villages and further curb

practices like preventing scheduled

caste individuals from using wells.

The text finally imposed reasonable

restrictions on the right to freedom

of speech and expression in the

interests of 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.

Frank Anthony




Looking through free speech

jurisprudence in our country,note that Courts don't have a

particularly bad record when itcomes to free speech.

Ah, yes - our progressive free speech

jurisprudence has unfortunately notbeen enough to stop people from

getting SLAPPed

But what about all the

unreasonable caseswe've been hearing

about in the news?

SLAPPed?

ONETIGHTSLAPP

ONETIGHT

SLAPP

The Indian Institute of Planning and

Management is a par excellencebusiness school, headquartered in

New Delhi, with a number ofbranches across India. Founded in

1973, by the great M. K. Chaudhari,the current honorary dean of the

institution is his son, Arindam

Chaudhari, which is obviously me.

2009: Maheshwar Peri is the

publisher of the magazine

Careers360 based in New Delhi.Peri's magazine ran an article

titled “IIPM - Best only in claims?”,investigating the authenticity of

many of the claims made by the

IIPM in their advertisements.

2011: Siddharth Deb is an authorpublishing a chapter of his upcoming

book in Caravan Magazine, based inNew Delhi. Deb's piece was a profile

of Arindam Chaudhuri, which shows

how Chaudhuri built an image forhimself and how he runs his

educational institution.

You guessed it.

Silchar-ed!

2005: Rashmi Bansal is a bloggerand editor of Just AnotherMagazine (JAM) based in Mumbai.

Bansal's magazine ran an “expose”

unveiling the truth behind claimsmade by IIPM, which then

demanded I 25 crore from her, forthe presumed loss of goodwill.

Oh, and they filed

a suit against me

in Silchar, Assam!

They also filed a

suit against me

and my publisherin Silchar.




So what do these

three individuals

have in common?

They all had

cases filed in

inconvenientlyfar locations!

Well put, Arindam. Strategic Litigation

Against Public Participation or SLAPPs,

refer to cases where suits have been

filed with the intent of silencing voicesof protest and public opinion.

These cases aren't just held together

by a common plaintiff: they are also

bound by the fact that the case filed

had a very slight substantive basis.

But they caused unfathomable

damage to the reputation of IIPM and

affected innumerable future

operations of IIPM.

That's right. You could

say they were all

SLAPPed by me!Bad luck?

Yes, a somewhat inflated

charge and one that

Appellate Courts in the

country would be quick to

strike down in upholding

the principle of free speech.

Like in James

Laine’s case!

But they still

have to go

through this

ridiculous

harassment!

That's a bitextreme.

The problem is the way they are so

easily entangled in the arduous legal

process: the Process itself becomes

the punishment.




The judge, Sanjay Kishan Kaul, ruled in

Hussain's favour: “Our culture breeds

tolerance, both in thought and actions.

I have penned down this judgment

with this fervent hope that it is a

prologue to broader thinking and

greater tolerance for the creative

field. A painter at 90 deserves to be in

his home – painting his canvas!”

Bhopal

Indore

Pandharpur

Rajkot

HaridwarDelhi

In 2004, M. F. Hussain sold a

canvas painting of a nude woman whose

shape mimicked the contours of the

map of India, with names of Indian citieswritten over the body. The painting

became controversial two years later,

when it was advertised as part of an

online auction where it was referred to

as Bharat Mata. It was subjected to a

prolonged campaign of legal action and

allegations of ‘hate speech'. Complaints

were filed against Hussain in Bhopal,

Indore, Haridwar, Pandharpur and

III’ve been

SLAPPed around

a fair bit myself.

Ah! How can we

forget, Mr. Hussain!

Rajkot; as a result, he sought to have all

proceedings transferred to a single court –

the High Court of Delhi.

Amen.

THE FREE

Speech JournalSupported by

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Alternative Law Forum

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Next to Balaji Art Gallery

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Alternative Law Forum

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