Much has been spoken about Article 19 of the constitution along with it’s various clauses and restrictions, made palatable with word “reasonable”, that it imposes to the freedom of speech and expression. The freedom of expression came bundled with the original constitution, the restrictive clauses were added as part of the 1st amendment to the constitution a little more than one year after it was enacted. Following reasons were cited for bringing in the first amendment curbing freedom of expression (Reference: http://indiacode.nic.in/coiweb/amend/amend1.htm):

1. The citizen’s right to freedom of speech and expression was found to be so comprehensive as not to render a person culpable even if he advocates murder and violence.

2. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom.

That it takes two third majority in Parliament to pass any amendment to the constitution, and the fact that it came into force and have remained unchallenged since, proves that there is a larger consensus on state’s discretionary powers to impose restrictions on free speech as “the state” deems reasonable, it doesn’t matter that a minority thinks that the discretionary powers should rest with the individual rather than the state or similar line of thought favouring absolute free speech. I belong to that minority.

One might argue that why do I need absolute free speech when the probability of anything worthwhile or original, coming out of it is slim? My contention is that people don’t hurt other’s sensibilities not because the law restricts that, and conversely, people who normally don’t, won’t start hurting other’s sensibilities in the absence of those restrictions either. Every law is based on the premise that “Man is a rational being”, except the law restricting freedom of expression, which is based on the premise that only the state is capable of deciding what is rational. Do we need laws to define freedom? Or do we need laws to define restrictions on freedom? IMO freedom of “anything” should be the default position, putting it in words and getting everyone to sign on it is an exercise in futility. That exercise should be carried out for defining restrictions on freedom, and the onus should be on the state and those who advocate restriction to justify the restrictions being imposed.

No person in his right mind, will either advocate or support anyone advocating violence and murder, but isn’t putting restrictions on everyone’s fundamental right of free speech a very crude way of preventing such hate speech? Have we been able to prevent any of the riots from taking place, fatwas from being declared or convict those who incited these riots on the basis of restrictions on free speech? It’s just one example of the ineffectiveness of these restrictions. However what “has” been achieved is a long list of books and other artistic expressions banned by the state on demands of various pressure groups who have got all the more emboldened after the state relented to their demands of curbing freedom of expression. So if enough number of people get annoyed by an opinion, questioning a belief or a piece of expression artistic or otherwise, or if they break enough Public furniture they can get the state to ban that piece of work. Isn’t it ironical that a constitutional amendment that espouses curbing a particular type of violent behaviour ends up rewarding the same?

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Sanjay Chetia

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