17 May 2019

#FOEIndiaSeries | 3. Legislative and Other Inputs

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Processes of Regulation


Part 1. The Foundations of the Law


3. Legislative and Other Inputs


All laws may be backed by legal principle and by overarching documents such as the Constitution of a country. However, those high-level theories and expressions of the law are not necessarily what individuals dealing with the law would encounter in their day-to-day lives. Instead, they would encounter a variety of statutory instruments, and rules drafted by ministries. They would also come across interpretations of the law endorsed by courts through their judgments, which have the force of law themselves.

In a country with a federal structure like India, statutory instruments are of two kinds: those passed by the legislatures of individual states, and those which are passed by the legislature of the country as a whole or Parliament. In the most basic terms, State statutes (or Acts, as they are called) apply within the limited territory of the State in which they are passed, while Acts of Parliament apply to the entire country possibly with some exceptions.

When it comes to Acts of Parliament, apart from all statutes not automatically applying to the entire country, there are also cases where statutes can apply not only within the country but also, potentially, to acts which take place abroad. Such statutes with extra-territorial applicability can become particularly important with reference to online content and conduct since a great deal of activity associated with content may take place beyond the territorial borders of the country even if the content is visible in India. Alternatively, conduct in respect of online content may have implications for people accessing specific websites or using specific services in India.

The enforcement of statutes with extra-territorial application can be a nightmare if those who engage in questionable conduct do so without having anything at all in the way of a presence in India themselves, but then again, enforcement is another matter altogether and nothing prevents the substantive provisions of statutes from being more optimistic than realistic. Substantive law lays down rights and obligations, privileges, and wrongs without necessarily getting into the nitty-gritty of how any of them would be protected or enforced.

In other words, as far as substantive law is concerned, some statutes with the possibility of extra-territorial application exist, and with them, in some cases, comes the possibility of addressing the commission or omission of acts which would have been illegal if they had been committed in India. Substantive law does not delve into the question of how the application of extra-territorial law would be achieved — that is a matter for procedural law and law enforcement, along with the judiciary.

Statutes are still often high-level documents, and although they may contain both substantive and procedural provisions, it may be left to Rules which are issued under them to lay out the details of how to ensure that their provisions are operable and operational. These Rules form what is known as ‘subordinate legislation’ and, just as statutes must conform to the Constitution, Rules must be in consonance with their ‘parent’ Acts. If they violate the provisions of the statutes which they are issued under, they are invalid.

Many of the laws which govern free speech India in India are, in fact, found in subordinate legislation. Many of them echo each other, and an indefensibly large fraction of them tend to be vague. To take just one example: regulations do such things as prohibit content which offends good taste and decency. And, of course, it is impossible for anyone to predict what would be considered to offend good taste and decency by the powers that be with any degree of certainty. The provisions are therefore susceptible to being interpreted in a manner which seems appropriate to the person interpreting them without necessarily being supported by objective, sharable criteria. And, because of the manner in which the law is structured, such interpretations could be entirely legal even if they were to seem repugnant to one as a result of one’s personal or political leanings.

Content which showed a woman enjoying a sexually-uninhibited lifestyle could seem like nothing more than what should be a socially-acceptable portrayal of a woman’s life to some people. To others, however, if the reactions one comes across are to believed, it is a portrayal of the Apocalypse.

It is possible to make an educated guess about how specific content might be perceived where there exist no objective criteria to rely on, but such guesses rely on being entrenched in broader Indian culture oneself and being familiar with what Indian societal responses could be. Unfortunately, and entirely unsurprisingly, this is not a fool-proof method of assessing the potential permissibility of the publication of specific content since, as individuals, all of us live in micro-cultures with our exposure to socio-political ecosystems beyond our own being limited. As a result, our guesses, educated though they might be, are prone to at least occasionally being widely off the mark especially considering how diverse the country is.

It’s not all doom and gloom though: amongst the restrictions on content — or free speech — are those which are relatively clear. For example, publishing content which infringes the copyright of another person is illegal. There are a large number of grey areas here too which one would stumble across if one were to explore precisely what constitutes infringement but, even so, it would be hard to argue that the law is not clear at least in its fundamentals. For example, copying and publishing the protected content of another person in its entirety, verbatim in the case of a book, or, possibly, frame-by-frame in the case of a film, without the permission of the copyright owner is unarguably illegal.

Where there exist grey areas (which are obviously not restricted to copyright law), it is generally left to the courts to sort out the mess and decide one way or the other if disputes arise and pre-trial out-of-court settlements cannot be reached. It isn’t at all uncommon for legal notices to be sent out quite randomly upon the publication of content which people find offensive for reasons best known to themselves, and for demands to be made for the payment of large amounts of money in damages. One hundred crore Indian Rupees is often the go-to figure. What does one say in response to claim which is, in essence: “Your programme offends good taste and decency by portraying a woman in fashionable clothes,” to take a hypothetical example.

It isn’t at all necessary that for a claim to be made, it be backed by law, or anything at all even remotely resembling a legal basis. Continuing with the same example: absolutely no law or regulation anywhere in India says that a woman cannot be legally portrayed wearing fashionable clothes. That said, the existence of people who associate fashionable attire with moral decadence, the loss of dignity, and all-round denigration is far from the realm of the impossible. It would also take little for them to make their feelings known through a letter, perhaps in the form of a LEGAL NOTICE (all Caps, of course), claiming that a fashionable portrayal is illegal and demanding some form of recompense likely along with the withdrawal of the content and, perhaps, an apology.

Communications which belong to this genre are reasonably easy to counter. The publishers of content and their lawyers invariably have good reason to believe that there is no legal basis at all for the claim, and they can quite easily send a response across to the claimant after which it is more likely than not that they will never hear from the claimant again. Some claimants, however, may be particularly enthusiastic: instead of merely sending a communication, whether in the form of a legal notice or otherwise, they may decide of initiate legal proceedings in a court of law.

There is absolutely no way whatsoever in which any publisher can contain the filing of a plaint for any reason. They may be able to argue against the matter being allowed to proceed especially if the claim is particularly outlandish, but they cannot ensure that there are no claims made in the first place, and they cannot easily simply choose to ignore claims which are made in court. And so, when legal proceedings are initiated, it is almost impossible for publishers not to wind up becoming embroiled in them.

And here’s the kicker: publishers, in this context, are not restricted to publishers who operate on a commercial scale, make hundreds of copies of works, and perhaps sell or broadcast them, and have deep pockets. On the contrary, a publisher could be anyone who communicates including an individual who publishes a post on a social media website. If there are criminal implications, the quantum of punishment may differ depending on whether or not the publisher of illegal content is operating on a commercial scale. However, the substantive provisions which determine whether or not speech itself is illegal don’t necessarily consider who the person accused of violating the law is doing. “I only said it on Facebook,” will not negate an allegation of defamation. One doesn’t have to communicate defamatory content in a newspaper or the like to have it be legally problematic, or be a large corporation before one can be held legally accountable.

As with all things legal, there are exceptions to the general rule that it doesn’t matter who is accused of violating the content and speech laws or what their motivations are. There are situations where the intentions of people matter a great deal — a person who engaged in what would otherwise be copyright infringement for an educational purpose or to report the news, for example, may not necessarily be considered to have violated the law. The 1957 Copyright Act itself, supported by case law, codifies this exception to infringement.

Statutes lay down what could be considered to be general though reasonably inflexible guidelines. It is up to courts to interpret them, and to apply them — or, if need be, to make them applicable — to the specific matters which arise. The court which hears a particular matter will generally depend on what kind of claim is made, where the offence took place, and how much money is involved. To cut a very long story short: a criminal matter will head to a criminal court, a civil dispute to a civil court, a writ petition (which is the form much Public Interest Litigation takes) will usually wind up in a High Court. Further, factors such as the nature of the wrong, the value of the property involved and the quantum of damages claimed in a civil matter determine whether a court may hear a matter or, in legal terms, if the court has the pecuniary jurisdiction to do so.

Pecuniary and subject matter jurisdiction, are not the only kinds of jurisdiction which come into play whilst deciding where legal proceedings should be initiated; courts also have territorial jurisdiction.

Each State has a wide array of courts and tribunals — the courts in each State usually have a high court at their helm, and atop the pyramid, at the helm of all courts in the country, is the Supreme Court of India. The codes of procedure determine whether a specific court has territorial jurisdiction to hear a matter, and these codes are sometimes supplemented by provisions in disparate statutory instruments. The determination is based on a number of factors such as where the alleged wrong or offence is claimed to have place, where the person initiating proceedings resides, where the persons involved carry out business, or where property is located. The result is that there are often several places where a case may legitimately be filed. It also means that persons who anticipate having legal proceedings initiated against themselves cannot always easily do such things as file caveats in courts to keep themselves abreast of possible developments. For one thing, caveats expire within a few months, and, for another, it simply isn’t practical to file caveats in every possible court in which proceedings may be initiated since it wouldn’t be unusual to come across situations where proceedings could, for all practical purposes, be initiated in a court anywhere in the country.

That’s an introduction to issues of jurisdiction which compresses several thousand words worth of legalese on civil and criminal procedure into two paragraphs without clear delineation, and it is obviously intended to do nothing beyond indicate that the authors of speech and the publishers of content can be left in an extremely vulnerable position should anyone decide to ‘go after’ them for having published specific content. While it is easy for the armchair commentary to assail them, fast and furious, suggesting that they should ‘stand up for free speech’ when they are asked to take down content by people who may have no legal claim worth mentioning to make, it is worth remembering that these claimants can, even without a legal basis, make life very difficult for both authors and publishers, and leave them having to cope with not just a great deal of stress but also, possibly, astronomical legal bills.

Once the courts become involved, it can take years for matters to reach a conclusion. The decisions of higher courts are binding on the courts which are subordinate to them, and form a body of law called case law. The courts within a State are generally obliged to follow the law as it is interpreted by the High Court to which they are subordinate, although High Courts themselves are under no obligation to agree with each other.

It is entirely possible to encounter a situation where two different High Courts come to diametrically opposite decisions relating to one point of law. If there is later a Supreme Court ruling on the same point of law, all high courts would have to follow that ruling although, till that happened, they could all follow their own interpretations of law. This creates some amount of uncertainty which is further compounded by the fact that the order of any High Court can generally be enforced throughout the country.

Case law, too, is often only indicative of what might happen in a certain matter. One of the greatest dangers while dealing with case law is to look at the factual matrix in one case, think that it is similar to the facts one is dealing with in another case, and assume that a court would come to a similar conclusion in one’s own case. There are no guarantees, however, that a court would view the two factual matrices as being similar. A court’s decision in a previously-adjudicated matter could be limited to the facts of that particular case and go no further, thus providing no assistance to someone who later sought to rely on its judgment.

In consequence of all of this, a situation arises where there is no dearth of laws which govern speech — natural, international, Constitutional, statutory, and subordinate, amongst others. But despite there being a virtual deluge of legal provisions, there is still a great deal of ambiguity about what it is that the law actually says and precisely what speech would be considered illegal. And it is in such waters that are far from calm that the right to free speech is exercised. It is no surprise at all that navigating these waters is fraught with danger at worst and uncertainty at best

(This post is by Nandita Saikia and was first published at IN Content Law.)

10 May 2019

[Note] 31D Does Not Apply to Internet Broadcasting, After All

There's been no shortage of vacillation over the years in trying to determine what the statutory licence for broadcasting now contained in Section 31D of the 1957 Copyright Act should, could, would, and does in fact apply to.

In the latest twist to the story, the Bombay High Court has said, in Tips Industries Ltd. vs. Wynk Music Ltd. (dated 23 April 2019), that the provision does not apply to Internet broadcasting in a case that deals with streaming music online. However, the streaming service in question also seems to allow end-users the facility of downloading encrypted copies of songs which they can access while their subscriptions are active, and the early parts of the judicial decision (from Para. 11 onwards) suggest that the contract between the music-rights owner and the streaming service do not use clear definitions, to put it mildly, to explain what is being done or what they intend to achieve through their agreement.

Whether the new 31D interpretation of the Bombay High Court is the last word on the subject is anyone's guess particularly since the April 2019 order itself is not the court's final decision in the matter. 

The tale so far: 





(This post is by Nandita Saikia and was first published at IN Content Law.)

#FOEIndiaSeries | 2. The Backbone of the Law

Free Speech in India

This is one of 14 articles (available via this page) through which I hope to share a sense of free speech and content law in India.

Wherever possible, I've tried to avoid mention of matters I've been involved in myself. I've also tried to ensure that the series is accessible to non-lawyers.

The terms ‘child pornography’ and 'revenge porn' have been used simply because of how common they are, both in popular discourse and occasionally at law, even though neither term is accurate. 'Child porn' refers to indecent images of children and, where real children feature, is evidence of child abuse in and of itself. 'Revenge porn' generally refers to the non-consensual release of explicit imagery of a woman by a former partner of hers. It, too, is a manifestation of abuse, and is far more an expression of power than an expression of pornography.

Of course, none of the content of these articles is professional advice and it should not be relied on for any purpose. It is tinged with personal opinion, may not be accurate, and is incomplete.  

Posts in the Series

Part I.    The Foundations of the Law

1.    The Parameters of Indian Discourse    
2.    The Backbone of the Law    
3.    Legislative and Other Input

Part II. Regulating the Substance of Speech    

4.    Creative Content and Trade    
5.    Reputation and Honour    
6.    Keeping the State Functional    
7.    Maintaining Law in a Plural State    
8.    Women’s Existence in Patriarchy
9.    Sexual Abuse and Reportage
10.    Privacy and Rights-Based Legislation    
11.    Explicit Content: Choice, Consent and Coercion    
12.    State Paternalism and Public Interest

Part III.  The Processes of the Law    

13.    Keeping Track of Others’ Content
14.    The Processes of Regulation


Part 1. The Foundations of the Law


2. The Backbone of the Law


There are several kinds of laws. Some of them are written down, others follow what could be considered to be first principles, and arguably include such branches of the law as ‘natural law’. What constitutes natural law, however, is anyone’s guess. For all practical purposes, and perhaps those are the only ones which matter to most of us, the basic procedures of the law are often considered to flow from natural law. For example, not having a person be a judge in his own case could be considered to be a facet of natural law, as could not having a person be tried twice for the same offence. However, since natural law is unwritten, it tends to be extremely easy to mould it to suit contemporary notions of what is ‘natural’, and what must have been since time immemorial.

Statutory instruments which list laws and legal requirements do not generally state that they are based on natural law although they tend to give expression to what is generally considered to be natural law. And it is possible to argue in a court of law that an act complained of or perceived to be unjust is against natural law. Such an argument would likely not win one a case in and of itself but, if the court decided that the act complained of was ‘against the principles of natural justice’, such a holding would almost certainly vitiate the presumably-claimed legitimacy of the act, and support the person complaining of its commission.

In this manner, underlying all written law tends to be the rather nebulous notion of natural law. It is unclear, it is pervasive, and it is impossible to ignore. Following it are two main kinds of law if one considers law in terms of territory: municipal law which is in force within a country, and public international law which binds those countries that agree to be bound by it. There are hybrids, and laws which do not neatly fit into this two-pronged classification. For example, there are municipal laws with so-called ‘extra-territorial application’ — this essentially means they have some form of applicability beyond the borders of the countries in which they are enacted, and may help to address crimes on the high seas or online. And then there is private international law which is a whole other kettle of fish. In the main part, it deals with disputes between private persons in different jurisdictions, determines which law should apply to them, and, once that determination is made, how the law should be applied. It rarely has any direct applicability to the exercise of free speech within a country and is not particularly relevant to a discussion of the social implications of free speech laws within a country.

As opposed to private international law, public international law is usually in the form of treaties which countries sign, and then incorporate into their own municipal laws in whatever manner their own legal processes require or enable them to. International treaties and covenants which form the basis of public international law, like natural law, tend to contribute to developing the framework within which a country’s own domestic or municipal law may operate. However, unlike natural law, public international law is either painstakingly negotiated and written down, or dependent on customs followed by a number of States in their interactions with each other. Much public international law clarifies minimum standards to which countries must adhere, and lays down basic obligations which states must meet in respect of individuals. Some of the treaties which form part of the body of this branch of law help facilitate international trade by decreasing regulatory divergence between countries, while others help to ensure that states do such things as recognise and make provision for the legal protection of human rights, of which the exercise of free speech could be considered to be a component. The terms of treaties may have to be incorporated into the laws of a country through statutes at the national level or they may be considered to be a part the country’s body of law without such specific adoption.

In India, specific adoption was earlier necessary, as was demonstrated by the enactment of such statutes as the 1960 Geneva Convention Act which, amongst other things, prohibited the unauthorised use of not only the Red Cross, and the Red Crescent but also of images or text which could be mistaken for them or construed as a reference to them. The statute was enacted in line with India’s international commitments. And, in an unrelated matter in 1980, the Supreme Court noted: "The positive commitment of the States Parties ignites legislative action at home but does not automatically make the Covenant an enforceable part of the corpus juris of India." This position was weakened in the following years, particularly with courts referring to international treaties where there were lacunae in national laws, such as with reference to sexual harassment.

By 2017, the Supreme Court unequivocally stated: "In the view of this Court, international law has to be construed as a part of domestic law in the absence of legislation to the contrary and, perhaps more significantly, the meaning of constitutional guarantees must be illuminated by the content of international conventions to which India is a party."

Thus, there have come to be supra-national forms of law which govern the content of statutes within the country: natural law, if it can be so called, and international law. They’re often not detailed, and leave a great deal of room for legislatures to create legal formulae that work best for their own people but, even so, they cannot be completely ignored since violating them could well result in unpleasant legal, financial, and social consequences including trade embargoes, and international condemnation for the State.

In addition to these overarching laws, India has is a third, well-articulated governing law which all the other laws of the country must abide by. This is, of course, the Constitution of India which came into force shortly after India gained independence from the British. It is a document which explains, in legal terms and in quite a bit of detail, what kind of state then-nascent nation envisaged for itself. Amongst other things, it specifies the duties of the state towards individuals, the directive principles of state policy, the duties of individuals towards the state, and the fundamental rights recognised by the Constitution.

Laws which are passed by legislatures in India must be in consonance with the Constitution: if they violate the Constitution, they are invalid. It is left to the courts to decide whether or not a specific law is constitutional, and the Constitution itself cannot validly be amended by the Parliament of the country beyond a point: since the 1970s, the courts have recognised that the basic structure of the Constitution cannot be tampered with. There’s some amount of confusion about precisely what constitutes ‘basic structure’ but, then again, there is so little about the law that is crystal clear.

There is one specific clause in the Constitution which grants citizens the right to free speech. It’s contained in Article 19(1)(a) of the document, which states: ‘All citizens shall have the right to freedom of speech and expression’ in its entirety. The clause is, however, almost immediately followed by another which limits its potential operation by clarifying that the existence of the right to free speech and expression would not automatically make laws in force invalid or prevent the State from enacting laws which impose reasonable restrictions on free speech. This clarification is contained in Article 19(2) of the Constitution which specifies that, in both cases, the Constitution allows free speech to be restricted on the following grounds: ‘in the interests of the sovereignty and integrity of India, 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’. Thus, the Constitution essentially states that just because there exists a right to free speech and expression, it does not mean that the right would impede the operation of laws which regulate speech on grounds which the Constitution itself finds valid.

There are a few points which are worth keeping in mind here. Firstly, the right to free speech appears in Part III of the Constitution which deals with fundamental rights. This means that the rights are, for all theoretical purposes, inalienable. There is no possibility of the State simply being able to suspend the right to free speech — although there is a great deal it can do to discourage its exercise — and, where there is a claim of state interference, there is no possibility that a free speech claim could not be brought before a court although whether a court would recognise specific speech as a legitimate exercise of constitutionally-protected free speech is another matter altogether.

Secondly, the right to free speech in the Constitution is a right granted to citizens, and not to all persons. It may be possible to claim that the right to free speech is an essential component of the right to life which is enshrined in Article 21 for the benefit of all persons, and that, therefore, by extension, all persons should be able to benefit from the right to free speech. However, even if such an argument were made, and even if it were acceptable, it is unclear how the right could extend to any persons but animate persons — human beings, specifically, since it is difficult to argue that Article 21 is intended to protect the life and liberty of inanimate persons such as companies. And so, regardless of what sort of interpretive legerdemain one may indulge in, the fact of the matter remains that any claim that the constitutional right to free speech is intended to benefit artificial persons strains credibility. After all, artificial persons are neither citizens nor persons with constitutionally-protected lives in the sense that the term is ordinarily understood.

Which brings one to the third issue of just what is protected by the Constitution. Article 19 is one of many fundamental rights, and even within the confines of Article 19(1) in which the right to free speech is recognised, there are several other rights which are granted the status of fundamental rights. One of them, for example, is the ‘right to practise any profession, or to carry on any occupation, trade or business’ in Article 19(1)(g) which, like the free speech right, can be legitimately regulated by the State in ways which are approved by the Constitution. In addition to this, amongst the Part III rights are stipulations that guarantee freedom of religion and belief. All of these rights operate simultaneously, and the Constitution itself contains no hierarchy of fundamental rights. As a result, it has become the task of the courts to read the various provisions dealing with fundamental rights together in a manner which is harmonious — no easy task.

Additionally, when instances of fundamental rights crashing into each other arise, even before a dispute makes its way to court, it becomes important for the parties involved to attempt to assess what each of their rights are so as to avoid legal liability should the matter be contested in a court. This is an exercise which is quite different from online commentary one sees clamouring for free speech: it is far more nuanced and requires one to approach the issues at hand in a tempered manner.

For example, consider the possibility that a sports match was to be played. One person may have bought rights to publicise it by broadcasting it and by otherwise sharing information about it, at considerable expense. Another may have simply decided to watch the broadcast, and to share the scores charging a fee for access to them. The second person, the score-sharer, would likely claim that he was exercising free speech by sharing scores. However, even if that claim was legitimate, it is also undeniable that the sharing of scores would undercut the business of the person who paid to acquire the right to distribute visuals of and information relating to the match. The constitutional implications of such conduct may be farfetched to consider particularly if those involved were artificial persons or companies, and not human beings who also happened to be citizens to whom Article 19 of the Constitution unarguably applied. Nonetheless, situations like this highlight that the various fundamental rights are not mutually exclusive. They do intersect with each other, and sometimes do so in an antagonistic manner. In this example, the right to free speech interacts with the right to carry out a business, ironically which business is also carried out by the expression of speech.

Every time such a conflict of fundamental rights arises, the rights which are involved have to be balanced against each other. It is not just the Constitution which may be involved though — and, in some cases, the Constitution may not even be directly impacted if the parties are not in a position to legally invoke it — but also other forms of law, written and unwritten. In fact, regardless of the mandates of written law, the adjudication of a case would invariably draw on not just the text of laws but also legal philosophy, well-established principles of natural law, and doctrines which have been recognised by courts in multiple jurisdictions over centuries.

If one were to consider a case in which the right to free speech and the right to carry out a business were involved, to continue with the example of sports scores, the factual matrix of the matter would likely be scrutinised with reference to the principle against unjust enrichment. And, due to this, is it likely that an individual sharing a score without authorisation and without compensation with his friend would be viewed quite differently from a corporate entity, or perhaps even an individual, making money by posting scores on a website. All three sharers could conceivably claim that they were exercising the right to free speech but it would hardly be fair to treat both of them at par.

It is precisely because of how complex the issues involved can become that calls to free speech without any reference to nuance do not result in helping to facilitate the emergence of equitable situations. Free speech does not exist in a vacuum — it exists in the same sphere as other rights which may compete with it and, to be meaningful and fair, calls to enhance free speech must take into consideration the facts of particular situations, else they could result in having the law forbid both the rich and the poor from sleeping under bridges and stealing bread, to borrow from Anatole France’s words.

The importance of not dealing exclusively either in absolutes or in generalities applies not only in the legal arena where rights are comparatively well defined but also in the social arena where rights, such as they are, tend to be amorphous and undefined. Take the all-too-common occurrence of a cis-het man holding forth on a subject relating to women about which he knows nothing at all. Perhaps go one step further, and picture such a man talking about an issue which in respect of which he cannot possibly have any personal experience: which menstrual product a woman should use. There is absolutely no law which prevents his from speaking. Social convention (which encourages men to form opinions and the air them relentlessly) would certainly not impede him from making his opinion known to everyone within earshot. And, in speaking, he would be exercising his right to free speech. Nonetheless, there is an element of the absurd in such a man speaking of a subject he is likely entirely ignorant of particularly if his voice is so loud as to have the effect of drowning out the voices of women who are far, far more likely to know what they’re talking about. Fairness, good sense, and the desire to have a discussion be informed would probably require the man, at the very least, to occasionally shut up despite his undoubtedly having a right to speak.

Simply having a right to free speech does not necessarily mean that one should exercise it, or that its untrammelled exercise is desirable particularly since we live in a society where voice is contested, and it is only the privileged few who are granted one. Usually, those few are men, and they belong to the upper class. They have enjoyed and employed their right to free speech for millennia now. And, to put it very mildly, they have not lent their voices to the development of an equitable world. Why would they do so of their own accord, after all, when in such a world they would be divested of much of their power? But perhaps the hope that a more equitable world can be created is precisely why it is worth listening carefully to demands that call for free speech to be seen in a nuanced manner without further privileging the voices of those who belong to a specific, already-privileged class.

Abstract legal concepts already support equity. They may have been created by men who hoped to create a fairer world for and between themselves alone but, despite perhaps not taking everyone into account at the time they were conceptualised, they are often easily made gender-neutral and generic so that the fairer world envisaged is to the benefit of all those who inhabit it: men, women, and children, not to mention other sentient beings. It is social conventions and practices which need to catch up with the law, and they have a great deal of catching up to do.

Unfortunately, in a bit of a Catch 22 situation, it is social beliefs that also inform not just the interpretation of the law but also the very structure of the law. What this means, in effect, is that the law tends to be patriarchal in its structure, and to support the status quo which tends to privilege men and their lived experiences not just with reference to speech but also in relation to other aspects of human conduct. Consider the expression of anger: a violent attack in response to extreme provocation is often justifiable at law. This is, of course, a pattern of response which men are typically conditioned to engage in through the societal celebration of toxic masculinity. As opposed to this, a female response which may involve exploding after months of facing micro-aggressions would not necessarily be justifiable at law if the immediate provocation were not extreme. Even in more egregious cases, battered women’s syndrome, which women who are abused may develop, is not universally accepted as a legitimate defence when a woman is violent.

Merely having laws and legal principles which could be used in the service of fairness is not enough unless the social context in which laws are implemented also support equity amongst genders, castes, classes, and races. Ostensible neutrality and absolute equality do not necessarily satisfy the demands of fairness. The law recognises this — the Constitutional mandate in Article 14 that the State ‘not deny to any person equality before the law or the equal protection of the laws’ within India has been interpreted by the judiciary to mean: “It is settled law that equals must be treated equally and unequal treatment to equals would be violative of Article 14 of the Constitution. But, it is equally well-established that unequals cannot be treated equally. Equal treatment to unequals would also be violative of 'equal protection clause' enshrined by Article 14 of the Constitution. Equal treatment to unequals would also be violative of 'equal protection clause' enshrined by Article 14 of the Constitution’.”

It is possible to negate arguments which advocate absolute equality without reference to the circumstances, and to advocate substantive equality that could be help facilitate a more equitable society. With regard to free speech, that could mean not favouring those who already have a disproportionately loud voice, and doing everything possible to promote the emergence of voices — or, at least, to not thwart the emergence of voices — which have traditionally been suppressed or simply ignored.

(This post is by Nandita Saikia and was first published at IN Content Law.)

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