Law Matters | IN Content Law

Unedited note, first draft. Free speech and women's rights have, for some time now, been on a collision course in India in no small measure, it would appear, because the manner in which the discourse relating to free speech in India has been set up by its proponents has been largely devoid of much nuance with a sledgehammer often being used to craft arguments where a chisel would have done better. Amongst the many instances, in conversations both public and private, where the friction between free speech and women's rights (or, more specifically, the right against violence) has manifested itself are those: in relation to pornography where free speech has, unfortunately, often found itself being pitted against women's rights simply because of the sheer length of time it took for any acknowledgement worth mentioning to be made in public discourse that a purported normative free speech right to access pornography can (or at least, should) only exist where that p...

Unedited first draft. If one were to look through Indian case law protecting the right of artists and authors to express themselves and to have their works protected, what would emerge is a clear judicial tendency to acknowledge the reputation of the artist or the author in question: M F Hussain, Amarnath Sehgal, and, most recently, Perumal Murugan. This is a tendency which not only expresses itself in the realm of free speech law simpliciter but also in relation to the moral rights component of copyright law which is, it could conceivably be argued, a subset of free speech law. The question which arises looking at precedent is whether a work by an unknown and unacknowledged creator would be treated in the same manner as one by an established and renowned creator: thus far, there doesn’t seem to be a great deal of so-called ‘landmark’ case law which might help to answer that question definitively one way or the other. The dearth of case law is, of course, utterly unsurprising: invok...

Unedited first draft. In a welcome decision, Sanjay Kishan Kaul, who as a judge of the Delhi High Court had once spoken up in defence of the artist M F Hussain, has once again, along with Pushpa Sathyanarayana, J, issued a decision dated July 5, 2016, which defends the right to free speech. It isn’t quite the victory for absolute free speech which it appears to have been made out to be in some quarters: the decision clearly recognizes that the right to free speech – or, with reference to the factual matrix in which the decision was issued, the right to write – is unhindered only so long as the author does not thwart what’s been called ‘Constitutional values’. In the prologue itself, the decision states: If the contents seek to challenge or go against the very Constitutional values, raise racial issues, denigrate castes, contain blasphemous dialogues, carry unacceptable sexual contents or start a war against the very existence of our country, the State would, no doubt, step in. [....