3 May 2019

#FOEIndiaSeries | 1. The Parameters of Indian Discourse

Free Speech in India


This is one of 14 articles (available through 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


1. The Parameters of Indian Discourse


In recent years, it has become increasingly difficult to escape the clamour which has arisen in relation to free speech, which is exactly as it should be. There have been numerous instances when debates about books, films, and works of art have brought free speech into focus, and although it has occasionally been treated as a concern which primarily affects so-called elites, the fact remains that it is in part through discussions about free speech that we define what we are — and want to become — as a society.

In India, the law plays a role in determining the legitimacy of speech, as it does throughout the world. It is, however, not all that matters. The law is primarily expressed in statutes which do not contain any specificity worth mentioning, and it is subject to continual interpretation by those who apply it. In large part, such interpretation rests on social norms which also act in their own right to determine whether specific speech is permissible. In fact, it could be argued that it is only particularly egregious violations of social norms which the law takes notice of.

The Constitution of India guarantees the right of free speech and expression to citizens of the country. The right is, however, not absolute and the Constitution itself states that it may be regulated almost immediately after recognising it.  This is not unreasonable in itself especially since it is extremely difficult to find ethical means to support entirely unregulated speech.

There are a multitude of instances where speech both can and should be restricted, where it is, in fact, legitimately restricted. Targeted rape threats, terrorist threats, much hate speech, speech which incites violence, and bomb hoaxes are all examples of speech which potentially does irreparable, illegal, and unjustifiable harm, and it is difficult to argue that such speech should not be restricted. Anything which comes after the word ‘but’ in the line ‘Free speech is essential but…’ is not always beyond the pale although the extent of free speech restrictions deserve to be subject to robust criticism and debate.

Targeted speech is not the same as speech that is directed at no one in particular, although there are those who tend to confuse the two either deliberately or through ignorance, and then claim that any suppression of speech is wrong. For example, sending a message to a specific woman saying that she deserves to be raped and that you will rape her is quite different from, say, launching into a rant online against ‘women’s lib’ however misogynist it may be. There is very little argument to be made in favour or allowing targeted threats of criminal acts on the ground that suppressing them would also suppress free speech. In contrast to this, generally unpleasant speech tends to lie in a grey area. There are subjects in relation to which the law lays down clear red lines which cannot be crossed — for example, promoting enmity between communities on the basis of religion through hate speech is impermissible although the enforcement of the law may be far from uniform. In relation to other subjects, such as sexism, the law has little to say and the permissibility of speech is largely driven by societal norms which, in this case, tend to allow a great deal of speech which is deeply misogynistic.

There are also times when the law has no input to provide and allows speech to be negotiated entirely by those who are involved in communication even though the power dynamics at play between the persons in a conversation may mean that one person’s opinion is given far more importance than that of another.

Consider so-called trigger warnings. They are generally notes which are appended to the beginning of speech if it is likely to be upsetting or age-inappropriate. Although the term is drawn from the experience of those with Post-Traumatic Stress Disorder who may be ‘triggered’ by specific content possibly into having flashbacks or anxiety attacks, similar content notes have been used for decades in film and television to warn viewers if the content they are about the encounter isn’t entirely anodyne. Having such content warnings find their way into classrooms, and the headnotes of articles online has somewhat bizarrely, resulted in many people raising the concern that the warnings suppress free speech. This, despite the fact that all they seem to do is enable people to prepare themselves for what they will hear and, possibly, brace themselves to avoid developing an anxiety attack which would almost certainly prevent them from being able to engage with whatever it is that they are told. It could well be argued that it is the absence of trigger warnings and not their presence which impedes free speech and communication — trigger warnings only facilitate access to speech. The law, however, says nothing at all in relation to the use of trigger warnings or, when it comes down to it, any number of issues which do not result in what it considers to be direct and discernible harm or damage.

That said, it is undeniable that speech in India is, if not over-regulated, badly regulated. There is absolutely no shortage of instruments which govern not just everyday speech but also the products in which it may be embedded such as books, films, music, and art. These instruments, which together form the body of ‘content law’, come in the form of Acts of parliament (or statutes, as they are called), subordinate legislation (such as rules and regulations made under the aegis of a statute), industry codes (such as those which deal with advertising and news broadcasting), and such documents as advisories from the Ministry of Information and Broadcasting. They regulate not just speech which is in the form of words but also communication of any sort possibly through images, gestures, and representations which may be visible, audible, or otherwise discernible. ‘Speech’, as far as the law is concerned, need not be linguistic.

Given the wide range of instruments which deal with content in India, it is extremely easy to publish illegitimate content and to perhaps fall foul of the law, often entirely by accident. On one hand, the sheer number of free speech restrictions floating around in various documents are difficult even for content lawyers to keep track of. The most experienced will likely occasionally stumble across come across decades-old regulations which are new to them despite their entire careers being dedicated to keeping an eye on free speech laws: there are just too many restrictions, and they are not neatly collated in restatements of the law as one might hope they would be. And, on the other hand, almost every free speech restriction there is in India is vague, and rarely subject to any objective standard. This means that it is all but impossible to be absolutely certain of how a court would view specific content, and if it would determine that the content was legal if legal proceedings were to be initiated in respect of the content.

There is so much to be said in this regard: content restrictions are not limited to the realm of civil law. They traverse civil law and criminal law with occasionally forays into other branches of law such as administrative law. They are not antagonistic to tort law which is a branch of civil law that is not encapsulated in statutes. On the contrary, speech regulations find expression in centuries worth of case law across jurisdictions, and, as a result, to someone determined enough, it is possible to raise a seemingly legitimate complaint in relation to any speech or content they wish to complain of through a tort law action since, at some point in history, somewhere in the common law world, it is almost certain that someone else would have complained of something comparable. Whether a court would uphold the claim is another matter altogether particularly since foreign law has persuasive value in Indian courts at most, and does not bind them. The point here is that a claim can be made. And, very often, a claim can be made in circumstances where it isn’t at all clear that a claim should be made. But such is the law.

Despite the disadvantages of allowing claims relying on torts recognised in foreign jurisdictions, the practice also has it benefits, and helps Indian law to evolve and accept international practices where there are lacunae in domestic law. Take the tort of commercial misappropriation, for example. If a news agency were to pay a large amount of money to acquire specific information, and then broadcast it to its own audience, copyright law would not necessarily prevent another news organisation from picking up the report, extracting the facts from it, drafting their own report based on the facts, and then publishing their report. This is because copyright does not protect facts or news alone by themselves. So, unless the second news organisation copied a report and thereby infringed the copyright in it, there would likely be no copyright claim to be made although the second organisation would undoubtedly have taken advantage of the investment made by the first without necessarily paying for having done so. It is, in such cases, that it would be possible to file a claim alleging commercial misappropriation.

When it comes to free speech, it isn’t just the letter of the law of the law which is in Indian legal instruments which is important: it’s also the context in which the law is read and the manner in which speech is exercised in practice. No law is ever drafted in a manner which would be able to take every conceivable future application it could encounter into consideration. On the contrary, all laws are drafted with the intention of having them be able to deal with a spectrum of issues as and when they arise, which means that all of them deal in generalities. Unfortunately, this inescapable structural aspect of the law, when it comes to free speech means that restrictions are almost always vague and vulnerable being interpreted in a manner which is informed by the personal worldview of the person interpreting them. Such interpretations are almost always subjective, and they make it impossible to predict how a law would be interpreted and applied by another person.

In most cases, it doesn’t matter how someone interprets the law. That changes, of course, when there is an actual legal case in progress, and the interpretation at stake is the interpretation of the judge. Over the years, the judiciary has developed a number of ‘tests’ and standards which refine the interpretation of the law, and bring some degree of certainty to its application. These tests and standards can be further refined by the judiciary as and when it deems that it is necessary to do so. As a result, although the enhanced certainty they provide is not illusory, it isn’t absolute either.

In practice, the law is understood with the aid of legal theory, and often with the support of extra-legal perceptions. What was earlier considered obscene, for example, is no longer necessarily considered problematic at all. In fact, it could be considered benign — Lady Chatterley’s Lover, for example, once the subject of scandal and legal controversy, could today easily be filed into the category of the mind-blowingly boring. Our societal standards have changed: the description of a woman’s hand placed across a gleaming, white back slick with sweat after a man’s having chopped wood isn’t a description which would concern us at all. Today, we instead concern ourselves issues such as how much violence in explicit content is acceptable, and how many participants in a single act should take the filming and publication of the act beyond the acceptable.

This is a sea change not so much to the letter of the law but to how we interpret and apply the law as a society. It’s a change which lawyers and publishers have been cognisant of, and which they often struggle with in attempts to make as much content as possible available to the general public. Legal processes have evolved to try to keep pace with changing socio-legal standards, to maintain ethical boundaries, and to try to keep clients away from jail and bankruptcy. It isn’t always an easy task, and it definitely requires one to engage with more than the quick slogan about the importance of free speech easily placed on a T-shirt.

It is the interface between law and social perception that this series of articles aims to deal with without getting entrenched in legal technicalities and, hopefully, without making sweeping and unwarranted generalisations about social parameters which guide the interpretation of the laws regulating free speech and content. It is not a reliable resource to understand what the law says; it repeatedly essentialises legal provisions and is not intended to anything more than provide a ‘flavour’ of the law and its operation in a plural society. The law is never interpreted in a vacuum, and regardless of how uncomfortable the thought makes one, it will always be informed by social perceptions.

Courts have tended to demonstrate a willingness to give expression to the intersection of social morality and legal statute despite the lack of explicit reference in either statute or Constitution. Although this can be deeply troubling to practising lawyers due to a resulting lack of clarity in relation to the law, it highlights the nature of the working of the law as an interdisciplinary process conscious of life beyond the ivory tower in which statutes may be zealously guarded by academics who work behind paywalls in environs inaccessible to the general public, and by lawyers whose chambers which may be every bit as inaccessible. And, despite being troubling to some, the practice probably little more than expression of the rationale which would otherwise only silently underpin and guide the interpretation of the law.

Having the workings of the law brought into the clear light of day, even if the day is almost certain to be cloudy, it could be argued, is not bad thing. However, it is only a first step. Free speech is, of course, critical to the functioning of what we have now come to think of as a healthy society and to a working democracy, as the courts have recognised. In fact, highlighting the importance of free speech by taking the example of the press, as far back as 1978, the Supreme Court had commented:
“It is a most cherished and valued freedom in a democracy: indeed, democracy cannot survive without a free press. Democracy is based essentially on free debate and open discussion, for that is the only corrective of Governmental action in a democratic set up. If democracy means government of the people by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. Manifestly, free debate and open discussion, in the most comprehensive sense, is not possible unless there is a free and independent press. Indeed, the true measure of the health and vigour of a democracy is always to be found in its press. Look at its newspapers-do they reflect diversity of opinions and views, do they contain expression of dissent and criticism against governmental policies and actions, or do they obsequiously sing the praises of the government or lionize or deify the ruler. The newspapers are the index of the true character of the Government — whether if is democratic or authoritarian.”

In addition to talking about the law as it is — positive law, in jurisprudential terms — it is also important that we talk about the law as it should be: normative law as legal philosophers would call it. Unfortunately, for us, a great deal of our public discourse on free speech relates to normative law without the slightest reference to positive law. This means that we often come up with ideas that are entirely uninformed by what legal structures exist, and are unworkable. Alternatively, we wind up wanting to duplicate existing law in no small measure because we fail to differentiate between the substantive provisions of the law which define offences and wrongs, and enforcement failings which lead to situations where the law, although it exists on paper, has no life worth mentioning beyond the page on which it is printed.

While splitting hairs may seem like an overkill rife with engaging in unnecessary technicalities, the fact of the matter is that without knowing what we’re talking about, we cannot develop an understanding of free speech which is both desirable and implementable. And, in recent times, it has become inescapable that we both need to honour free speech and to accept having it be curbed in a limited number of circumstances. The recognition and exercise of rights is always about creating a balance between furthering one’s own interests and not unfairly treading on another’s interests, hopefully, to create a fairer society in the process. Free speech is no different. The only question is where the balance should lie and where how it should be structured.

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

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