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Free Speech and Women's Rights in India

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 pornography is both made and disseminated with the consent of those who feature in it;
  • in relation to verbal abuse where it has been argued that, for example, verbal street harassment constitutes an exercise of free speech which should not be a legal offence despite the fact that it is targetted at a specific individual and could not possibly qualify as a general misogynistic rant which doesn't necessarily target anyone;
  • in relation to the posting of online advertisements, games, and tools such as the so-called 'dowry calculators' (For fun! it's said) and foetal sex-determination aids even though, bearing in mind that an intermediary would have limited protection through the IT Act, there are compelling arguments to be made for the illegality of such online content;
  • in relation to the blocking of advertisements made for escort services without, it would appear, any research having been done to ascertain who exactly the posters are and whether the legality of such advertisements could potentially differ depending on whether they were posted by persons providing services themselves or others possibly coercing them into providing the services; both trafficking and pimping are illegal in India.
There are areas in which the law is beginning to be clarified (albeit not really in India). On July 14, 2016, for example, the FBI released a statement on distinguishing between Free Speech and Threatening Speech. It read in relevant part: 
"Free speech, however, cannot be misconstrued to include directed threats toward another individual, group, or location. Once threatening speech is directed toward a specific person; a group of people, including law enforcement agencies or ethnic communities; or specific locations in a community, it can be viewed as a credible threat. Individuals who communicate threats may be subject to prosecution."
The fact of the matter is that free speech does not exist in a vacuum and, at some point, a balance will have to be found in India weighing free speech against the provisions of the law and with women's rights. There is no case, ethical or Constitutional, for absolute free speech. In fact, the Constitution clearly envisages circumstances in which free speech can be legitimately curtailed. Further, given both the prevalence of violence against women in India and the horrendously skewed sex ratio of the country, perhaps there is also a case to be made for not attempting to challenge legal restrictions to free speech which help protect women's rights. Free speech is critical. It is not sacrosanct though and should not take precedence over a woman's right to remain alive and to be able to live an abuse-free life.

Update: February 21, 2017
Developing Workable Solutions

It's far from clear what the legal solutions could be or what the statutory basis for some of the judicial attempts to address issues where FOE and VAW converge is. Focussing on what, in SocMed terms, is being described as a "constitutional crisis" is not, in and of itself, esp. productive. Reproducing the text of a tweetstorm on the subject here:

» quick disclaimer: running a reasonably high fever today and brains are like cotton wool so do your own editing if you read this — anyway!

Women's rights, rape, rape videos, sex determination ads, so-called dowry calculators, virginity pill sales etc : they've all been issues » » for years now sans ref to any case whatsoever. Because you have laws that are applied unpredictably. Because there are laws that cannot » » be sanely applied. Because the law is often inconsistent with technology. Because AI hasn't kept up with socio-legal needs and is blunt. » » Because what people expect they can do or should be allowed to do often has little relation to what the law actually permits. So what » » you're left with is a legal framework that simply doesn't work well. & some, mainly large corporate, actors scrambling to try to ensure » » that they're in compliance with the law. Sometimes they self-censor, sometimes manage admirably, and sometimes just fail. For the most » » part though, AFAIK, it's got less to do with intentional non-compliance, where they're non-compliant, than [with] the inability to comply. Add » » to this mix the standard so-called liberal enthusiasm for things like free speech. For the most part, it's rich upper-caste men who are » » doing all the talking. They often —not always— range from oblivious to unconcerned about issues that affect women. Take porn alone, eg. » » Look at the sheer number of publicly available Indian articles on porn and free speech, and count how many of them differentiate between » » consensual and non-consensual porn. That porn can be non-consensual is an issue. That we have no legal framework in the making to deal w » » non-consensual porn is, IMO, a problem too. Issues like this are going to come up before the courts — there's no earthly reason why not » » and without our having done anything (we haven't) to address the issues, solutions courts come up with are likely to be sui generis at » » best. Criticising them is going to be easy & RTable but without developing an alternative and workable legal framework within which to » » address the issues, the criticism is meaningless. It's also meaningless when criticism is applied unevenly. We've spent decades saying » » judicial activism is fantastic without qualifiers. In some cases, it has been. But to suddenly turn around and say it's unacceptable if » » it doesn't fit into one's own ideological framework doesn't make for a convincing argument at all. Bottomline: There are issues which » » courts are addressing. It'd likely be more helpful to develop workable frameworks within which they can be addressed than to do nothing » » but criticise judicial attempts to address the issues which is all I seem to be seeing. / end

(This post is by Nandita Saikia and was first published at Indian Copyright.)