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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.
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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?
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The Free Speech Journal 03
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 …
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The Free Speech Journal 04
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.
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The Free Speech Journal 05
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!
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The Free Speech Journal 06
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!
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The Free Speech Journal 07
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”.
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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
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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
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The Free Speech Journal 10
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.
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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.
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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
PUBLISHED BY
Alternative Law Forum
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Alternative Law Forum
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ILLUSTRATION
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