Freedom of speech is ‘negative’ right: Chandrachud

Lawyers

Abhinav Chandrachud

and

Akhil Sibal

in their dialogue on free speech at the Times Literary Festival on Sunday agreed that this cannot be an absolute right, not just in India but in any democracy at all. Chandrachud began by pointing out that the right to free speech is a “negative right” – one that offers protection from interference by the state, without conferring anything in particular. It is permitted with reasonable restrictions, meaning “seditious” speech, obscenity and contempt of court, for instance, is not protected by right.

Chandrachud pointed to how independent India had made legal provisions to prevent sedition even more stringent than colonial India. The 1832 English law punished sedition as “misdemeanor”, with two years’ imprisonment. This law has since been abolished in the UK and US, Sibal pointed out, but the provisions of law currently in operation in India allows for sedition to be punished with life in prison. It is also a non-bailable offence.

Chandrachud said that in 1892, Gandhi pleaded guilty of sedition and called this law the “prince” of provisions that clamped down on free speech.

Few policemen are aware that the law does not provide for punishment for raising slogans against the country, unless the act also incites people to violence. So a man might get arrested and then have to vend his way through the legal system. Chandrachud pointed out that if one is charged with sedition, even acquittal by the court would ultimately mean loss, as the whole process of litigation in India is a little like suffering from diabetes – a lifelong condition that requires regular intervention.

Chandrachud said freedom of speech only had meaning if it also meant freedom to offend, within some reasonable limits. It is the clash of ideas that allows us to arrive at the truth. “If you believe that the earth is flat and I tell you that it is round, you would be offended. But that clash of ideas is what allows us to arrive at the truth,” he said, encapsulating in just a few words important developments in the history of science.

In response to questions from the audience, both speakers on stage pointed to how the Constitution provides for protection of the freedom of speech from intervention by the state.

In the case of the row over the movie Padmavati or of the novels of Tamil writer Perumal Murugan, however, non-state actors plunged into the debate without so much as an exposure to the object of art that purportedly caused offence. “The state is bound to uphold the freedom of the filmmaker and take action against those who announce a bounty on the head of artists,” Sibal said.



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