“Self-censorship has become the norm”, Senior Advocate Navroz Seervai on the modern-day threats to Freedom of Speech and Expression

From where lies the threat to the Constitutionally guaranteed freedom of speech and expression under Article 19 (1)(a) of the Indian Constitution?

Whereas in earlier times, even the Constitutional framers were aware that the greatest threat to such freedoms may come from the State, “Today, the answer is not so easy”, commented Senior Advocate Navroz Seervai.

Article by Meena Emmanuel | Bar And Bench

He further explained,

“Today, and for the past 5-6 years, there is, I regret to say, another more insidious threat: a threat from the metaphorical Trojan horse. It is a threat from within. And the government may have something to do with this, but the threat comes from self-censorship and self-imposed prior restraint – by the press and more so by the electronic media.”

Navroz Seervai

Seervai made the observation while speaking on the Right to Freedom of Expression during a webinar conducted on Saturday.

He broke down the issue into three thematic questions:

What does Article 19 (1)(a) of the Constitution of India recognise as being a fundamental right? From where lies the threat to Article 19(1))a) of the Constitution? Given recent disturbing trends, should India have an absolute, unrestricted right to freedom of speech and expression?

Dangerous to assume that rights are “State-given”

During his talk, Seervai referred to the philosophical doctrine championed by thinkers like Jean Jacques Rousseau and Voltaire, which recognises that there are natural rights which “inhere in a human being because s/he is human”.

He went on to opine that a similar position is reflected in the Constitution of India in its Preamble, which acknowledges that the source of the right to free speech and expression is not the Constitution itself. Seervai pointed out,

“Our Constitution does not grant or give or confer this natural or human right. It merely recognises it as fundamental in all its manifestations. I think it is extremely significant that the Preamble uses the phrase ‘to secure to all its citizens liberty of thought, expression, belief, faith and worship.’”

Equally, he added, the Preamble does not mention the State or the Government as the source of human rights. “It says ‘we the people.’”

On the other hand lies the positivist theories of “State-given rights.” A proponent of this theory, Thomas Hobbes, proposed that the individual would have to enter into a social contract to give up “some dangerous freedoms” before a powerful person/institution in charge, so as to avoid a ‘solitary, poor, nasty, brutish, and short’ life outside society.

Seervai opined that the significance and terrible danger in accepting this theory was that the State can then restrict all rights, including free speech and the right to life.

To explain, Seervai recounted an episode from the Emergency era in India when then Attorney General Niren De was called upon by the Supreme Court to answer whether a man could be deprived of his rights, including the right to life and liberty. Seervai pointed out that AG De solemnly answered yes and that, “shamefully, four out of the five judges accepted this.“

In view of the same, Seervai opined that there is a great threat to freedom in accepting this attractive theory. He added that on the ground level, “It could lead to an authoritarian government at the least in the guise of a democracy”, he said, adding, “or worse, to Hitler, Mussolini and Franco on the one side or Mao, Stalin … on the other.”

To sum up, Seervai opined that a combined reading of the Preamble and Article 19 (1)(a) of the Constitution would show that the Constitution framers had recognised that the freedom of speech and expression were basic human rights that “all human beings were born with.”

He added,

“So the next time – I would request all lawyers – you refer to this right, be careful how you describe it. It is not given by the Constitution, let alone any government in power or charismatic leader. You have always had this right, and the Constitution merely recognises it and secures it to you as a citizen.” Navroz Seervai

The Legal Paradox of Free Speech

Seervai went on to comment that the right to free speech would be reduced to a right writ in water, if it did not include the right to say things that people may not want to hear.

“Freedom of speech must not mean freedom of that which people only want to hear or like to hear. And that is the legal paradox of free speech, for it entails, as it must, my freedom to speak what you do not like…Without this, I do believe freedom of speech is meaningless.” Navroz Seervai

He pointed out this was reflected in Voltaire’s view, encapsulated in his statement that, “I wholly disapprove of what you say and will defend to the death your right to say it.”

He pointed out that Article 19(1)(a) is antithetical to intolerance. All the same, he noted that there may be valid restraints to free speech. In this regard, Seervai cited the example of a law in Germany. “The law in Germany today which prohibits holocaust denial and makes it a crime is clearly a valid restraint on the principle of tolerance given Germany’s history from 1933 to 1947.”

The modern-day threat to Free Speech: Self-Censorship

“Self-censorship has become the norm”, Seervai said while summing up the modern day threat to the freedom of speech and expression. He went on to remark that one of greatest threats in the modern era is a corrupt, pliant press.

He recounted that when the Constitution was framed, the framers entrusted the judiciary to guard against attacks to fundamental rights by the State.

“They created what they believed would be an incorruptible hierarchy of judges. And they made these judges the trustees of our Constitution, its guardians and its final arbiter between the State and its citizens.”

As evident from cases such as Romesh Thapar, the three Indian Express Newspaper cases, Brij Bhushan, Bennett Coleman and the Sakal Newspapers cases, it was in fact from the State that attacks were made against the freedom of speech.

In response, Seervai recounted that High Court and Supreme Court judges often vigorously upheld free speech rights in the past, the one aberration being the ADM Jabalpur case.

However, in the recent years, Seervai opined that a third disturbing threat is reflected in certain Court judgments. He opined that,

“… Some of the judgments and orders of the Supreme Court on article 19(1)(a) in the past 5-6 years leave much to be desired.” Navroz Seervai

He went on to take critical note of a recent episode before the Supreme Court “…where the Centre actually bared its teeth, having the temerity to ask that the Court pass an order directing that all news regarding COVID-19 be first approved by the government before it is published.”

“Mercifully the Court refused to go that far”, Seervai said. However, he added a query why the Court unnecessarily went on berate the media for fake news. “Surely the Supreme Court judges who passed this order knew that the single greatest bearer of fake news (globally) is the Government itself and not the press?” Navroz Seervai

Another judgment Seervai highlighted concerned the plea to restore internet services in Jammu and Kashmir, where he noted that while the Supreme Court wrote long, learned expositions on the freedom of speech, “no relief was granted to the petitioners, though the matter cried out for relief under 19(1)(a).”

“This is a trend, to put it mildly, which is disturbing”, Seervai said.

Should India have an absolute right to free speech?

Seervai was emphatic in his opinion that Indian citizens should also have an absolute right to free speech, save for defined, minimal restrictions.

“I am against censorship in all its forms, I detest the nanny state of which Singapore is a prime example”, he opined. He went on to elaborate further, “In a democracy, the State must trust the better judgment of its vast majority of its society, knowing that the minority may abuse (this freedom).” Navroz Seervai

He went on to note that even in the USA, there is no absolute right to free speech. There are minimal restraints, judicially crafted, such as the case with child pornography where even the Supreme Court has drawn the line.

“Outright incitement to cessation or revolt or violence leading to criminal activity” is another, he said.

Taking a cue from the US, and from Germany (where holocaust denial is barred), Seervai proposed,

“A country can either by judicial precedent (US) or legislation (Germany) exclude, in a very limited way, a subject from the otherwise absolute and unrestrained Freedom of Speech.” Navroz Seervai

On a concluding note, Seervai recalled a historical anecdote when Benjamin Franklin, a US founding father, was asked following a Constitutional Convention by a lady,

“Doctor, what have we got? A republic or a monarchy?” Seervai recounted that Franklin replied, “A Republic, if you can keep it.’”

He added,

“It is a quote with suitable variations of which it is well worth reminding the judges of the present Supreme Court.”

The lecture was jointly hosted by Dhruve Liladhar & Co., Rashminkant and Partners, Hariani & Co., Universal Legal and ALMT Legal in association with the Bombay Incorporated Law Society.