By Sachin Dhawan, Assistant Professor, Jindal Global Law School
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”—George Orwell
“Amazon must tender unconditional apology. They must withdraw all products insulting our national flag immediately.”—Sushma Swaraj (on Twitter)
The demonetisation saga has once again shown that there is little regard for the niceties of political parley in the age of Modi. The Prime Minister has been dismissive of the opposition in Parliament. Opponents outside Parliament have also been treated to a menu of slurs and insults that paints anyone standing in the way of demonetisation as anti-national and corrupt.
Sadly, this approach is consistent with earlier actions of the Modi government. When faced with criticism, the government and its supporters have often resorted to smearing opponents. Aamir Khan was on the receiving end of such treatment, journalist Swati Chaturvedi alleges in her book I Am aTroll. So were Kanhaiya Kumar and Rohith Vemula. The online retail giant Amazon is the latest casualty of such browbeating. It has been taken to task by External Affairs Minister Sushma Swaraj for allowing the sale of doormats resembling the Indian flag. The company buckled and removed the doormats from sale after Swaraj threatened to rescind the visas of its employees in India. Such heavy-handedness discourages dissent, impoverishing the marketplace of ideas.
Unfortunately, the Supreme Court has paid little heed of late to the dangers being visited upon free speech, ignoring a rich archive of domestic and foreign precedent in the process. Its decisions on defamation and the national anthem in particular reflect a dismissive attitude towards the perils of chilling free speech. Had the court lived up to its role as custodian of constitutional rights, state and non-state actors would not be emboldened to take offence so easily.
Indeed, as John Stuart Mill points out in his tract “On Liberty”, free and unhindered discourse is the antidote to an ossified status quo. The ubiquity of wrongdoing numbs us to its existence. Society needs freethinkers to defy the strictures of conventional discourse and call attention to the injustices that surround us. Their task is made difficult enough by Orwellian group-think that ostracises departures from established discourse, as evidenced by the vitriol directed against student movements which dare to question shibboleths about patriotism.
By allowing iconoclasts to speak truth to power, robust free speech laws lighten their load. Such legal support enables them to more vigorously oppose injustice. The more we protect free speech, therefore, the closer we come to identifying and overcoming injustice.
That is why the US Supreme Court significantly expanded free speech protections, beginning in the 1960s. As a result of New York Times Co. v. Sullivan, the scope of defamation law was sharply reduced. Before this decision, individuals would face liability for speaking out against injustice if the truth of their statements could not be proved. The difficulty of proving statements chilled the free expression of viewpoints. Sullivan did away with this requirement, ensuring that free speech would not be compromised unless the alleged victim of defamation could prove that “the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
The US Supreme Court deepened its free speech credentials in the famous 1989 case of Texas v. Johnson. By granting legal protection to destroy a cherished symbol like the national flag, the court consecrated the right of the individual to be free of encumbrances in expression of opinion. In this way it advanced the prospects of societal progress by enabling individuals to break free of stale orthodoxies.
A concrete outcome of this direction taken by the court is the constitutional protection afforded to American football star Colin Kaepernick’s controversial gesture of refusing to stand for the national anthem. He did this on more than one occasion last year to protest police brutality against African Americans, stating, “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of colour.” Defying societal convention, he needed the support of the law to express his displeasure at an injustice many took for granted. His constitutionally protected act sparked a movement across the country to raise awareness about the injustice of police brutality. Had the law reflected social convention, he would have been arrested. Such an outcome would likely have nipped the movement in the bud by deterring others from following his example; the prospect of arrest may even have discouraged him from undertaking this act of protest in the first place.
India’s missed opportunities
Just as in the Sullivan case, the Indian Supreme Court had a chance last year to advance free speech jurisprudence. However, unlike its US counterpart, the apex court blinked. In Subramanian Swamy v. Union of India, the Court could have struck down notorious British-era criminal defamation laws. Doing so would have provided a fillip to free speech renegades willing to defy the societal consensus that celebrates people in positions of power and prestige. However, these very individuals will now continue to struggle against the double bind of societal and governmental censorship.
More recently, in the national anthem case, the Supreme Court has doubled down on its erosion of free speech protections by compelling the playing of the Indian national anthem before the screening of films in cinemas. This reinforces the brand of nationalism being peddled by the government which equates dissent with disloyalty. It is harder for an Indian Kaepernick to refuse to stand for the playing of the anthem as a mark of protest, not only because social opinion would condemn such an action but because the law would come down heavily on him or her.
The way forward
The Supreme Court would have been better off steering clear of any policy to compel the playing of the national anthem. It should have heeded Mill’s harm principle of letting people do as they wish until they injure others. Indeed, his lucid propagation of free speech must be the Supreme Court’s lodestar. It needs to assist dissenters in their challenge to orthodoxy. In so doing, the court will facilitate the vital transformative function served by free speech.
The article was originally published in Huffington Post