Abhinav Chandrachud is an advocate at the Bombay high court. He has written extensively on subjects like the freedom of speech, the judiciary, the constitution of India and legal history. He is the author of Supreme Whispers: Conversations with Judges of the Supreme Court of India 1980-1989 and the latest Republic of Rhetoric: Free Speech and Constitution in India (Penguin, 2017), which explores the politics, decision-making and legal culture at the Supreme Court of India. In this interview, Chandrachud speaks on free speech restrictions, sedition law, the relationship between citizens and the state, and why the state is not the only institution curbing free speech in India.
What interests you about free speech laws in India? And whom did you write this book for?
At Harvard University, I studied under Lawrence Tribe, who wrote the book American Constitutional Law, and took a course with him titled ‘The First Amendment’. I’d also taken another course on free speech at Stanford University. So I was always academically interested in the right to free speech. I’ve also written books about Article 21 and the appointment of judges and I thought this would be another interesting topic to write about. About whom I wrote for, my goal was to write in such a way that my colleagues, who are lawyers, and my in-laws, who are not lawyers, both should also be able to understand what I have said in the book.
In the book, you argue that the Indian constitution maintains the pre-independence status quo when it comes to free speech restrictions and that the changes are rhetorical rather than substantive. In this case, what could be the mechanisms for change to expand the ambit of free speech laws in India?
Let’s take sedition. In an era when England has done away with sedition – and that is where we got the law from – I wonder if we should now consider if it should remain in our statue books anymore. Even if you don’t want to remove sedition altogether, why is it still cognizable? Sedition was a non-cognizable law even during the British rule. British police officers who wanted to arrest an Indian citizen for sedition required a warrant from a magistrate. Instead, in the 1970s, the Indira Gandhi government made sedition cognizable. Second, it is non-bailable. Every time an FIR is filed against you for sedition, you have to go before a judge and it is on his/her discretion whether you will get bail or not. We can also reduce the penalty, which is life imprisonment.
Recently, incidents of lynching based on rumours forwarded on WhatsApp have gone up. We are also seeing fake news being circulated on Facebook. How liable are these platforms in the eyes of the law?
Your question on WhatsApp and lynching is very interesting. I was just thinking that if someone uses a telephone to spread rumours, would you blame the telephone company for it? At some level, these are platforms where people can air their views. After all, there was the case of someone ‘liking’ a Facebook post and getting into trouble. Surely, those must not be the standards of getting into trouble. If I am posting something on Facebook, Facebook shouldn’t be liable for what I’m doing. In the case of defamation or obscenity, there is a procedure to intimate Facebook about it and to have it removed. There are provisions in the Information Technology Act to take down materials when there is a court order. So, there are ways in which you can ensure that posts which are defamatory or obscene are taken down. So, to what extent is it Facebook’s, or any other social media platform’s, responsibility to verify the content of those using it, unless you deliberately post or spread fake news, intending to cause a riot or something similar? The primary onus must be on the consumer of that technology to check whether it is authentic or not.
What does this say about a citizen’s relationship with the state machinery, the government in power and the mechanism of judicial reach in this country? Because when it comes to free speech, the restrictions place the citizen in a very subordinate position. The might of the state machinery can take away many more rights than just free speech.
And it’s not just our relationship with the state. The greatest threat to the right to free speech in India doesn’t necessarily come from the state. Take, for example, the cases of painter M.F. Hussain, and of journalist Gauri Lankesh in some senses. If I write a liberal message on Twitter and people start attacking and threatening me, I may end up censoring myself. That reflects a failure of constitutional laws because they are only geared to protect the individual against the government. In India, the right to free speech is often threatened by people who are not the government. For example, who vandalised the sets of Sanjay Leela Bhansali’s film Padmaavat? There are other fundamental rights that can be threatened by private groups. Article 14 of the constitution says that the state can not discriminate among people. Let’s say, the owner of a certain building says he will allow people to be tenants as long as they are Hindu and only eat vegetarian food. That would mean that a minority group is excluded from having access to that housing and that restricts the right to life and dignity. In this case, the owner, a private person, is not the government and under our legislation that would be permissible.
You talked about vigilante groups and how “the fundamental right of free speech is meaningless against vigilante groups”. This seems to be a massive lacuna in the free speech laws in our country. How has this remained unaddressed till now?
These are two separate questions. Let’s say I published an article on a blog from Mumbai. That blog can be accessed in the remotest district in Bihar, Jharkand or Uttar Pradesh. So, if someone wants to harass me, they simply have to file a case against me in a very remote district in Bihar or UP. That would require me to travel from Mumbai to there, retain a lawyer there and, who knows, the magistrate there may have conservative views on free speech. So far as vigilante groups are concerned, that is a problem of constitutional law generally because the idea of the constitution is a very Western idea – where it was believed that the greatest threat to liberty came from the government. Even in our constitution, all our fundamental rights are only available against the government or against government agencies. That is not to say that we don’t have recourse against other citizens. For example, if somebody threatened to throw ink on your face for saying something, you may have recourse against that person under ordinary criminal laws. How effective they may be, how much time they may take, is another matter.
In the book, you recount how these laws were promulgated and brought onto the statue books. Nehru had many reservations against free speech while these laws were being debated because of the circumstances – partition and the threat of violence. Then Indira Gandhi expanded these restrictions, especially with regard to the press and sedition. Now, we could say that the right-wing government in power is allowing vigilante groups to abuse the free speech laws in a particular way. Why has no government, regardless of its ideological underpinning, seen it fit to expand free speech restrictions in the country?
You are absolutely right. We tend to think that a particular government is restricting free speech, but each successive government has done so. In the early years, the fear was that India shouldn’t really tear itself apart and the country shouldn’t end up Balkanised. For example, the 15th Amendment to the constitution was done to ensure that Indians could not peacefully use the elections as a platform to advocate for secession from India as the Muslim League had done in British India. The fear was that the members of the DMK were using elections to peacefully advocate for the secession of the South from India. In 2018, do we still need to have the fears that we had in the 1950s and 1960s?
The state can brand anything controversial as seditious speech and citizens cannot express their genuine anger against the state. So what recourse do citizens have against this?
You’re right. The Economist has to self-censor the Indian map when they are writing anything about India, China and Pakistan because they can get into trouble in India. One can debate whether that satisfies the distinction laid down by justice Nariman between advocacy and incitement. However, the law for sedition is very clear: it is only when you incite someone to take up arms against the state that it amounts to sedition. For example, if someone were to peacefully say that the army is transgressing its limits and committing human rights violation, that doesn’t amount to sedition. But I wonder if the policemen on the ground are really able to understand the difference between advocacy and incitement. So, there should perhaps be a little more education on the ground level about this.
Free speech is a barometer for a robust democracy. In that sense, where do we really stand on the global stage?
I would argue that perhaps we do even better than Singapore, a very developed and progressive country, but they tend to be very deferential towards the state. There are examples from Singapore where opponents of the state have been treated very harshly and people have been bankrupted for speaking against the state. We haven’t reached there yet. Our courts have developed a robust case against defamation. Unfortunately, they are not very consistently applied. The Wire is one example where a prior restraint was imposed. One question that I’m often asked is: Why do you only compare India to England and the US and not to other countries like South Africa or other Commonwealth countries? The simple answer is that we got all these laws from England. These laws no longer exist there, so why should they exist here?
Is the parliament now the only place left to debate these laws? Courts can interpret these laws, but isn’t that really very restrictive? Outside of these spaces, where else can we have a dialogue about this?
You can challenge each of these laws in court, but unfortunately, the most recent free speech judgment hasn’t taken a very liberal view when it came to criminal defamation. It said that it was against striking down the criminal defamation law. We really need to adopt the pre-2013 law in England on civil defamation. When a suit of defamation is filed against a newspaper company and when the plaintiff in that suit tries to get an interim injunction restraining a newspaper company from saying anything more which is defamatory, the pre-2013 law in England was that if the journalist simply says that I have enough material to justify what is being said in the trial, that is sufficient to ensure that no injunction is issued. So the Bombay high court has in some cases taken that view. And that really is the view which is very pro-free speech.
Somewhere, I also see that the state has failed to protect citizens’ rights to free speech and liberty within the country itself. For example, Salman Rushdie was denied a visa to India for 12 years, M.F. Hussain had to leave the country, Rohinton Mistry’s book was banned in Mumbai and, more recently, journalist Gauri Lankesh and rationalists like M.M. Kalburgi were gunned down by vigilante groups. Can the state step in and say that this is not going to happen, we are going to protect our citizens against vigilante groups?
I wouldn’t necessarily say that the state has failed. I would say that it is India’s cultural norms that dictate how free speech will be exercised. So let’s say that you paint a picture of a Hindu goddess in the nude, that’s a part of right to free speech. So long as the picture doesn’t intend to simply arouse sexual passion, it’s not considered obscene. But if people are going to attack and threaten you, you may ask for police protection, but how long can you keep asking for police protection? If individuals, our neighbours, our culture, and the people you meet every single day are going to make it difficult to exercise your right to free speech, then what can the state really do? The argument the book makes is that it is India’s cultural norms which are going to dictate the boundaries of right to free speech, and it is not going to be necessarily what the state or the constitution says.
The interview has been edited for clarity and length.
Garima Gupta is a an independent travel, food, culture and lifestyle writer who now lives in the Himalayas.