10 May 2019

#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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