(Let noble thoughts come to us from the universe)
Writing in 1859 J.S. Mill in “on liberty” emphasized that ‘the only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm’… In the part which merely concerns himself, his independence is of right absolute over himself, over his own body and mind, the individual is sovereign. Yet whatever mischief arises from their use, is greatest when they are employed against the comparatively defenceless; and whatever unfair advantage can be derived by any opinion from this mode of asserting it, accrues almost exclusively to received opinions.
Content and viability are essential for the assertion of Right in the wider sense. Content includes Ethical assertion which forms the critical importance of certain freedoms viz. freedom from (torture) and correspondingly about need to accept some social obligation to promote or safeguard these freedoms. Viability includes Open impartiality or open and informed scrutiny. Viability in impartial reasoning is central to the vindication of rights even if such reasoning is ambiguous or dissonant as in the case of American declaration, French Declaration, Universal Declaration of Human Rights. The focus is on fresh legislation.
The acceptance of a class of human rights will still leave room for further discussion, disputation and argument that is indeed that nature of discipline. The validity is ultimately dependent on the presumption of the claims of survivability in unobstructed discussion. It is extremely important, as Prof. Sen puts to understand this connection between human rights and public reasoning especially in relation to demands of objectivity.
The universability of human rights relates to the ideas of survivability in unobstructed discussion – open to participation by persons across national boundaries. Partisanship is avoided not so much by taking either a conjunction, or an intersection, of the views respectively held by dominant voices in different societies across the world … but through an interactive process, in particular by examining what would survive in public discussion, given a reasonably free flow of information and uncurbed opportunity to discuss differing points of view.
Human rights are thus seen by Sen as “pronouncements in social ethics, sustainable by open public reasoning”. and he emphasizes that “the understanding and viability of human rights are … intimately linked with the reach of public discussion, between persons and across borders”. For Kant the core of what makes judgment possible is our “common sense” shared by other judging subjects. It is this shared sense that allows us to exercise an “enlarged mentality” by imagining judgments from the standpoints of others. For Kant the ground for our “common sense” is the identical cognitive faculties of imagination and understanding that all human beings share.
Human Rights can be divided into two categories viz. subjective and institutional. (See generally Costas Douzinas – The end of human rights). Institutional human rights serve the self-interest of sovereign states and help constitute the legal subject as both free and subjected to law. They can produce just results but tend to serve the status quo rather than the claimants of right – such as refugees and stateless persons – whose very existence puts the status quo in question; thus, human rights are always in danger of becoming merely rights that is, transfigured by politics into a liberal conception of legalised rights. Subjective human rights, however, are the peoples utopian hope; they are a standard of right outside of institutions and they fuel the political experience of freedom, the expression of the battle to free individuals from external constraints and allow their self-realisation.
The weighty human rights paradox is that the state is set up in order to guarantee human rights and yet often the idea of ‘human rights’ is called upon to justify resistance to or request from that very state. Human rights function as a telos of sorts, a possibility of a world of justice and an idea of absolute good.
Douzinas emphasises that Utopia is impossible because it is an ideal and it is necessary because it is an ideal. Debates from Hobbes and Aristotle/Acquinas to Hart and Fuller or Rawls and Dworkin show that the conflict between origins and ends has never ceased to be a contentious one in theories of justice. Liberal theories of rights and of a law to which its subjects consent at its origin have largely replaced natural law and its telos in the modern world. Natural right was written out of law because of its critical potential.
The Universal Declaration is intended as a minimum standard which should find universal acceptance in order to prevent the expected “clash of cultures and civilizations”. One of the consequences of rights being the point of departure for constitutional law is that phenomenon like social rights (which are in fact duties or responsibilities of the states) have been drafted as individual claims in national constitutions despite their non-justiciability (e.g. Directive Principles and Fundamental Rights) Hardly two decades later, the Universal declaration gained the status of an obligatory (albeit non-justiciable) document for all the countries of the world.
Brian Berry has ably demonstrated why Rawls theory of “justice as mutual advantage”, being inadequate to consider the intergenerational question, must be expanded to include the notion of “Justice as Impartiality”. Prof. Amartya Sen acknowledges “the influence of Theory of Justice had extended by the early 1980’s, beyond the realm of political philosophy to that of welfare economics. Rawls’ conception of justice should include the internal justice of the family and the individual, assuring adequate protection of Human Rights, in his wider conception of moral development. The irony of the Rawlsian legacy is that the difference principle and the pragmatic conception of ‘overlapping consensus’ aroused maximum interest in countries where social welfare policies and human rights protection have been the most developed – whereas in developing countries like India this aspect of Rawls’ early work has been virtually ignored.
This includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used. In practice, the right to freedom of speech is not absolute and is commonly subject to limitations such as libel, slander, obscenity, sedition (including, for example inciting racial hatred), copyright violation, revelation of information that is classified.
Alas! You do not have freedom even to sing a Happy Birthday song without paying licence fee of 455 U.S.D. to Warner Music, a giant MNC which earns 2 Million U.S.D. in a year towards licence fee for owning the copyright which in fact it does not have. A California Court on 23rd September, 2015 ruled as invalid a copyright claim by Warner music, a giant corporation on “Happy Birthday to you”, charging license fee of approximately 455 U.S.D. for each rendering. U.S. District Judge George H. King of Los Angeles federal court examined the history of the song and its lyrics, traced back to the 1890s and ruled that Warner could not own the copyright it had claimed. Patty and Mildred Hill pencilled an original version with the lyrics “Good morning to you”. But Warner bought the copyright in 1988. No one has ever sought to adjudication of the validity of its copyright. The petitioner Rupa Marya successfully contested and wants to continue the crusade against the giant MNCs for such exploitation.
The right to freedom of expression is recognized as a Bill of Rights under Article 19 of the Universal Declaration of Human Rights and is recognized in international human rights law in the International Covenant on Civil and Political Rights. Article 19 of this states that “[e]veryone shall have the right to hold opinions without interference”, and “everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice”. Article 19 of Indian Constitution adds that the exercise of these rights carries “special duties and responsibilities” and may “therefore be subject to certain restrictions” when necessary “[f]or respect of the rights or reputation of others : or “[f]or the protection of national security or of public order (ordre public), or of public health or morals”.
Concepts of freedom of speech can be found in early human rights documents. England’s Bill of Rights in 1689 granted “freedom of speech in Parliament”. The Declaration of the Rights of man and of the Citizen, adopted during the French Revolution in 1789, specifically affirmed freedom of speech as an inalienable right.
The defining role played in absentia by Bhagat Singh, in the hours and days after his hanging,3 a role that history has not recognized, acknowledged or learnt from. He wrote “the day shall usher in a new era of liberty when a large number of men and women, taking courage from the idea of serving humanity… will wage a war against their oppressors, tyrants or exploiters…. to establish liberty and peace”. (Why I am an Atheist October 5-6, 1930 Bhagat Singh).
Quite incredibly, Bhagat Singh’s became the most important ideational presence at the Karachi Congress, virtually dictating its agenda and defining the draft resolution which Nehru put together and Gandhi edited which was a major “Karachi congress formulation” of 1931 which read “Every citizen of India has the right of free expression of opinion, the right of free association and combination and the right to assemble peacefully and without arms, for a purpose not opposed to law or morality.” Karachi resolutions refracted themselves into the Preamble and Part-III of the Constitution of India.
Article 19 of the Universal Declaration of Human Rights, adopted in 1948, states that:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
International, regional and national standards also recognize that freedom of speech, as the freedom of expression, includes any medium, be it orally, in written, in print, through the internet or through art forms. This means that the protection of freedom of speech as a right extends to not only the content, but also its means of expression. The English poet, John Milton offered one of the earliest defences of free speech (in early modern times). His essay on the right to divorce had been refused a licence for publication. He then published in 1644 Areopagetica, which is one among history’s most influential and impassioned philosophical defences of the principle of a right to freedom of speech and expression, without a licence.
Today, we find two main arguments used to defend free speech. There are instrumental arguments that free speech results in tangible benefits. A good example is Meiklejohn’s argument that it promotes the sort of discussion that is a precondition to the functioning of democracy. This argument appeals to consequences and is, theoretically, testable by reference to empirical evidence. More commonly today, moral arguments are preferred in defence of free speech. Some arguments tend to move from what it is to be a person to the idea that it is an infringement of autonomy or dignity to remove or restrict speech.
There are many examples today when freedom of expression has been questioned. Pornography is one test case. It may be doubted whether hard core pornography is speech at all. As Schauer argues, it is a sex aid like a vibrator. MacKinnon sees hard core pornography as an act designed to subordinate women. If there is a casual relationship between pornography and domestic violence and rape, can it still be defended? MacKinnon’s argument against is:
“Sooner or later… the consumers want to live out the pornography further in three dimensions. Sooner or later… they do. It makes them want to, when they believe they can, when they feel they can get away with it, they do.”
Liberals defend pornography. Thus, Ronald Dworkin has maintained that negative liberty is “freedom to offend” and this applies to the “tawdry as well as the heroic”. Liberals defend pornography even though they despise it. They follow a dictum attributed to Voltaire:“I despise what you write : but will defend to the death your right to write it.”
One of the most interesting challenges to free speech today is Holocaust denial. It is particularly useful to test out Mill, who we saw emphasized the truth/falsehood of statements. The Holocaust – the planned and systematic extermination of European Jews by the Nazis – is a “fact” – it is, however, one beset by controversy. There are “Holocaust deniers” (they prefer the term “revisionists”) who doubt that it happened or who see the orthodox view that 6 million perished as a gross exaggeration (an MEP elected in 2014 is on record as saying it was “merely” 340,000). Some deny there was gas chambers in Auschwitz (a common allegation is that Jews put them there after the war to assist in the creation of the state of Israel). Like those who believe the sun goes round the earth and those who believe the earth is flat and those who believe the world was created in six days, Holocaust deniers are wrong. It is not even a subject worthy of debate. The Holocaust is an incontestable fact. A number of countries have criminalized Holocaust denial. The UK has not done so.
What then of hate speech? This typically degrades people because of their race, religion or sexual orientation. It targets minorities. Hate speech is intended to “compromise the dignity of those at whom it is targeted… it aims to besmirch the basics of their reputation, by associating descriptive characteristics like ethnicity or race, or religion with conduct or attributes that should disqualify someone from being treated as a number of society in good standing”. It invariably involves acts of extreme racism delivered provocatively.
It is questionable whether protecting hate speech protects the wrong people : those with the power of communication at the expense of the vulnerable. But some liberals believe this is a price to be paid to uphold their cherished principle of free speech. Some argue that “Hate Speech” degrades people because of their race and religion targeting minorities intended to compromise the dignity of those who are targeted. It can only be countered by more speech citing Nazi march in Chicago which was held as protected under 1st amendment freedom. Some liberals believe that this is price to be paid to uphold the cherished principle of free speech.
Human Rights developed as a concept mainly within Western societies. But Beitzemphasises that justification needs to be “valid across the religious, moral and political societies in today’s pluralistic world”. (C. Beitz 2009)
I. HUMAN DIGNITY IN POST-POST MODERNITY:
James Griffins personhood-based justification for human rights emphasises “deliberating, assessing, choosing, and acting to make what we see as a good life for ourselves”. If we accept his premise that people are moral “persons”, that is they have normative agency, then we shall appreciate that his moral personhood needs to be protected. As Griffin understands freedom is made up of autonomy and liberty which are the only interests capable of grounding human rights. It is by reference to these interests that we should make sense of human dignity. (Cf. J. Tasouilas- 2012).
There are two main approaches to the question : why are human rights valid?
Much discussion of dignity goes back to Kant, but between his day and ours there was very little discussion of “dignity”, until recently. Several books have been published in the last few years, and the relationship (if any) between human rights and dignity has emerged as a subject for discussion. Tobin argues that human rights protect human dignity (2013). Klug believes that concept of dignity has replaced “the idea of god or nature as the foundation of ‘inalienable rights’”. Dworkin in Taking Rights Seriously referred to the “vague but powerful idea of human dignity”. There is “pious lip-service to slogans that have dignity. There is also uncertainty of its relevance to practical issues, for example in medical care and in bioethics.
Human dignity raises many issues. Can human dignity be understood in purely secular terms or is it “ineliminably religious”? Is it subjective or objective? Can there be shared meaning of human dignity when there is religious and ideological pluralism? Does human dignity attach to some rights more than others? Is human dignity absolute? Or can it be balanced against other values? Does human dignity apply essentially only to humans, or can it apply to animals, foetuses? A Delhi High Court judgment declared that Birds also do have fundamental Rights (18.05.2015 Hindustan Times). Can a person waive his/her dignity? Should Free Speech be not in conformity with human dignity? and many more. A whole jurisprudence syllabus could be created just on “dignity”. (Mann)
Catharine A. Mackinnon asserts that the law of equality and the law of freedom of speech are on a collision course. In the United States, the law of freedom of expression has grown as if a commitment to speech were no part of a commitment to equality and as if a commitment to equality had no implications for the law of speech. Issues at the equality-speech interface are not framed as problems of balance between two cherished constitutional goals, or as problems of meaningful access to either right in the absence of the other, but as whether the right to free speech is infringed acceptably or unacceptably, whether what is called freedom will give way to an imposed equality. Equality-promoting provisions in the United States concerning hate crimes, campus harassment, and pornography, […] for example, tend to be attacked and defended solely in terms of the damage they do, or do not do, to speech. At the same time, issues such as racial segregation in education, with its accompanying illiteracy and silence, are framed solely in equality terms, rather than also as official barriers to speech and therefore as violations of the First Amendment Freedoms.
When pornography and hate propaganda explode, as they are in what Yugoslavia was and elsewhere in Eastern Europe, they tend to be met with indifference or affirmatively embraced as freedom under US-style speech theory. As pornography and its defense as ‘speech’ take over more of the world, pervading law and consciousness, desensitizing whole populations to inhumanity, and sexualizing inequality, legal attempts to reverse rising racial, ethnic, and religious discrimination, harassment, and aggression – often ending, as in Croatia and Bosnia-Herzegovina, in genocide – may be disabled. The official history of speech in the United States is not a history of inequality – unlike in Europe, where the role of hate propaganda in the Holocaust has not been forgotten.
The evil to be avoided is government restricting ideas because it disagrees with the content of their political point of view. The terrain of struggle is the mind; the dynamic at work is intellectual persuasion; the risk is that marginal, powerless, and relatively voiceless dissenters, with ideas we will never hear, will be crushed by governmental power. This has become the ‘speech you hate’ test : the more you disagree with content, the more important it becomes to protect it. The marketplace becomes the battlefield when we are assured that truth will prevail while grappling in open encounter with falsehood, as Milton is often paraphrased.The existing law against pornography was not designed to see harm to women in the first place. It is further weakened as pornography spreads, expanding into new markets (such as video and computers) and more legitimate forums and making abuse of women more and more invisible as abuse, as that abuse becomes more and more visible as sex. So the Court becomes increasingly unable to tell what is pornography and what is not, a failing it laments not as a consequence of the saturation of society by pornography, but as a specifically judicial failure and, finally, as an area in which lines cannot be drawn. The stage is thus set for the transformation of pornography into political speech : the excluded and stigmatized ‘ideas’ we love to hate. The way this protects what pornography says and ignores what it does – or, alternatively, protects what pornography says as a means of protecting what it does – is obscured. Thus can a law develop which prohibits restricting a film because it advocates adultery, but does not even notice a film that is made from a rape.
Child pornography is not considered the speech of a sexually dissident minority, which it is, advocating ‘ideas’ about children and sex, which it does. Perhaps the fact that boys were used in the film in the test case has something to do with it. The ability to see that child pornography is harmful has everything to do with a visceral sense of the inequality in power between children and adults, yet inequality is never mentioned.
A new principle can be defined in terms of specific experiences, the particularity of history, substantively rather than abstractly. It will notice who is being hurt and never forget who they are. The state will have as great a role in providing relief from injury to equality through speech and in giving equal access to speech, as it now has in disciplining its power to intervene in that speech which manages to get expressed.
No one seeks “a uniform ethical system”, but everyone wants “necessary minimum of shared ethical values”. “When a state utterly or egregiously fails to protect the rights of the people residing within its jurisdiction the rest of humanity must have capacities to do more than sit idly by until the slaughter is finished or merely assist the victims after they are violated…….” Others committed to moral cosmopolitanism also explore its implications. What institutions will result world government? States being given only “conditional sovereignty”? Pogge offers us the fullest exploration of institutional cosmopolitanism, Falk presents the most convincing case for international humane governance.
James Nickel in making sense of Human Rights defines Human Rights as basic moral guarantees that people in all countries and cultures have simply because they are humans. Tobin says Human Rights protect Human Dignity. Human Rights are interdependent and indivisible.
As Camus suggested there does not seem to be an absolute meaning to life, for human beings, to find something useful to do and some reason to live. The post-modern future will be one in which our idea of justice will be reformed so as to reflect a world of ‘small contingent facts’ rather than an ephemeral illusion of large necessary truths (Rorty). Rorty’s post-post modernism or post-Nietzschean world will not be quite so ironic or whimsical or playful as its post-modern predecessor. The stakes in terms of human sufferings are too high and too immediate as can be seen with the rising of ‘ethnocentrism’. Rejection of absolute contingency of Neitzschean post-modernism leaves one with either Kantian universalism or some kind of murky middle ground. Ethnocentrism represents privileging of localized group moralities and political values which is dangerously anti-liberal and liable to justify any number of undesirable and un-liberal ethnocentrism forms of exclusionary politics. However, both Unger and Rawls seem to support ethnocentrism. But such danger can be avoided, as Rorty suggests, by employing strong liberal political institutions which can preserve procedural justice and thereby prevent the state from slipping into a kind of modernist liberalism of Kant.
Freedom is important; Happiness is important; Autonomy is important are all ethical assertions. Assessment of viability depends on public scrutiny – validation of ethical claims from other types-utilitarian, Rawlsian or Nozickian. People speak of moral rights while advocating their incorporation in a legal system. Self-legislative will of Kant comes as justification for such limitation. Uncurbed critical scrutiny is essential for dismissal as well as for justification.
II. JE SUIS CHARLIE, HELL YES. JE SUIS PERUMAL.ANYONE?
Today freedom of speech and expression are recognized as international and regional human rights law. When a Danish cartoonist drew a cartoon of the prophet Mohammed with a bomb to his turban there were violent reactions from Muslims worldwide. A similar fate greeted Salman Rushdie when he published his Satanic Verses. Should such publications be permitted or banned?
Following 7th January, 2015 killings at the editorial offices of the satirical magazine, Charlie Hebdo, it’s clear even that one small freedom is at peril. Like all other democracies, India’s government and people will have to negotiate this challenge with care. Ever since 1989, when India banned The Satanic Verses, threats of violence from a wide range of religious groups have led governments to ban more books than any other major democracy. This has poisoned our cultural and intellectual life — and there’s no sign of the political maturity needed to address the problem. “It’s hard to be loved by jerks,” Charlie had the Prophet saying on the February 2006 cover cartoon. It’s hard to be hated by them, too. But the killings in Paris make it necessary for us all to consider how this challenge can be best met — while denying the violent veto power over liberal civilisation, while protecting the right to free speech that necessarily includes the right to offend.
Good satire, the argument goes, must take on the powerful, not regular people. This assumes that believers, who constitute most of humanity, are the weak. It is a daft assumption. Humanity has demonstrated many times that nothing on earth is more powerful and terrifying than the fellowship of believers. In fact, the powerful, including violent dictators, are merely effigies breathed into life by the collective imagination of the masses. A measure of a person’s power is how many people he derives it from. Charlie Hebdo did ridicule the most powerful people of Europe and their private parts, too. It overreached when it attempted to take on something that was far deadlier than mere politicians. Charlie Hebdo has been attacked before, threatened often. Charlie Hebdo was brave because it knew fear. (Manu Joseph)
While outwardly, India subscribes to the same liberal values as most Western democracies, the reality is a little more complex. Modern Western liberal democracy is founded on the notion that individual liberty is an absolute value. Hence the dedication to the preservation of freedom of speech, the uproar over any wrongful confinement, the reluctance to countenance any form of preventive detention, and the protests over the use of torture. The problem with this approach, however, is that not only does it turn electoral politics into a vote-bank exercise — you appeal to groups rather than individuals — but that it may also foster a sense of unfairness. Many of the debates we have seen over the last two or three decades stem from dissatisfaction with this approach : Why should Dalits get reservation? Should Muslims be allowed to retain their own Personal Law? Why should we implement the Mandal recommendations? and so on. So the final lesson for us from the Charlie Hebdo affair is this : Even if Indian liberalism is a balancing act between groups, there are times when we must speak up for individual freedom. Otherwise it is the fanatics within the groups who will always set the agenda. (Vir Sanghvi)
For 25 years Murugan has written poetry, short stories and novels and single-handedly compiled a dictionary of the Kongu dialect. But it was his 2010 novel, Madhurobhagan (One Part Woman), set 100 years ago about a childless couple who attend a religious festival in the author’s hometown of Tiruchengode where women have consensual sex with men other than their husbands in the hope of conceiving, that has earned the ire of the RSS and organisations like the Hindu Munnani. The stark announcement on his Facebook on January 13 was not unexpected:“Perumal Murugan the writer is dead.” In an earlier interview to The Hindu, the writer said:“I wonder if I can think independently [again]. This was perhaps the intention of the opposing forces.” Suchitra Vijayan in her article on “The death of the Author Perumal Murugan” laments that a society that allows for its storytellers to be silenced is one in need of ethical and political introspection. The travesty of the Perumal Murugan is not just a matter of freedom of expression. It is the imposition of a narrative tyranny and the state’s abdication of its responsibility to protect our rights.
However recently the Madras High Court delivered a decision that was remarkable for its eloquence on the right to freedom of expression, on the centrality of this right to our democracy and on the state’s duty to protect it in this case. This decision sends a strong message at a time when freedom of expression is under threat from self-appointed morality enforcers affiliated with conservative groups.
Mr. Murugan’s novel, published in English translation in 2014 as “One Part Woman,” tells the story of a woman who plans to take part in a local religious ritual in which childless women have sex with strangers in order to conceive. Justice Kaul dismissed the idea that Mr. Murugan’s book be censored:“All writings, unpalatable for one section of the society, cannot be labelled as obscene, vulgar, depraving, prurient and immoral.” The Judge underscored that, “One of the most cherished rights under our Constitution is to speak one’s mind and write what one thinks.” Finally, he chided the book’s detractors with simple advice:“If you do not like a book, throw it away” and concluded “Let the author be resurrected to what he is best at. Write.” A buoyed Mr. Murugan vowed, “I will get up.”
In May, Human Rights Watch issued a scathing report on the many threats to free speech in India, including vaguely worded laws that criminalize speech on grounds of sedition or defamation, the use of the police to arrest people for free-speech offences – rather than to protect citizens’ right to freedom of expression – and an alarming official tolerance for mob violence in pursuit of censorship. (See Editorial in International New York Times, Monday, July 11, 2016)
The General drift in Society (Orwell) in our age is that the troubled intellectual in India today is being asked to choose between Freedom of Expression that can lead to intellectual murder or a silence that can end in intellectual suicide (Gopal Krishna Gandhi).
There is no censorship tool as sharp as the threat of violence, and this threat is now a well-established principle especially with regard to works that apparently offend religion. Movie halls that show a film depicting a character playing the role of God Shiva are vandalised. A bounty is announced on an artist who paints Hindu Gods and Goddesses in the nude. Rationalist Sanal Edamaruku remains in exile in Finland after he upset Catholic groups for exposing a supposed miracle. Islamic groups succeed in cancelling a planned visit of Salman Rushdie to a literature festival. (Namita Bhandare)
We lag noticeably behind. One such area is the freedom of expression. Many chief ministers and a few prime ministers have actively taken the side of fanatics who wish to have books or works of art banned. A Prime Minister was instrumental in banning Salman Rushdie’s The Satanic Verses. The Left Front in West Bengal banned the works of Taslima Nasreen and then refused to let her even live in the state. A Chief Minister had formal or informal bans placed on books, films and exhibitions of paintings. The recent silencing of the Tamil writer, Perumal Murugan, is illustrative here. No major political party in Tamil Nadu was willing to stand by Murugan’s right to free expression. The local administration played an even more pernicious role – rather than protect Murugan, it coerced him into issuing an “unconditional apology” to the mob that sought to hound him. Threats to free expression eat away at the moral and institutional foundations of Indian democracy. To be sure, our writers, artists and film-makers enjoy greater freedom than their counterparts in semi-totalitarian countries like China or Russia. Yet, they are distinctly unfree when compared to their counterparts in thoroughbred democracies like Sweden or Canada. (Ramachandra Guha)
This is the logic of violence against freedom of expression. Think of a narrative history, not unrelated to the Paris attacks, of the original Rangeela Rasool case in India. This awful pamphlet on Muhammad, ostensibly written in response to a derogatory representation of Sita, arguably changed the course of Indian history more than any other event. It led to massive public mobilisations, the publisher of the pamphlet was assassinated and we had a far-reaching transformation in our laws with the introduction of Section 295A of the penal code. It also, in turn, unleashed a politics of competitive intolerance and double standards. All groups, except partisans for liberal democracy, achieved their objectives, by linking the taking of offence and violence in one chain. Implicit in the thought is the idea that your religion ceases to matter enough, at least in public, that you don’t get provoked. Modernity is rife with all kinds of experiments — from the genocidal to the farcical — that promise such an escape. The real challenge for liberal democracies is not fighting the bad guys to the end of the earth; it is understanding why some fall under such murderous spells in the first place. (Pratap Bhanu Mehta)
Anyone who can reach Wikipedia enters a digital haven of freedom of expression. Curbs on free speech are growing tighter. Without the contest of ideas the world is timid and ignorant. Free speech is under attack by Governments, non-State actors and by some people and groups asserting that they have right not to be offended. Repression by governments has increased in several countries like Russia, China, Middle East particularly after the overthrow of despots during the Arab spring.
In some cases non-State actors are enforcing censorship of assassination as was done to Reporters in Mexico who investigated crime or corruption were tortured and murdered. Secular bloggers in Bangladesh are hacked to death in the street. The offence of violating the groups such as ethnic and religious groups and even people holding political beliefs being subjective, the power to police it is both vast and arbitrary. It is unfortunate that the University of California suggests that it is racist “micro-aggression” to say that “America is a land of opportunity”. Hate speech is another inroad into the freedom of expression. China locks up campaigners for Tibetan independence for “inciting ethnic hatred”; Saudi Arabia flogs blasphemers; Indians can be jailed for up to three years for promoting disharmony “on grounds of religion, race, caste etc. Germany and other 10 countries bar insults against their own heads of State. In many countries free speech is lukewarm and conditional. A group of Islamic countries are lobbying to make insulting religion a crime under International Law.
Laws against hate speech are unworkable, subjective and widely abused. Banning words or arguments which one group finds offensive does not lead to social harmony. On the contrary it gives everyone an incentive to take offence – a fact that opportunistic politicians with caste based support are quick to exploit as is happening in India in recent times. It’s better not to try silence views with which you disagree and answer all objectionable speech with more speech which alone ensures greater freedom.
Many countries have introduced “defence of terrorism” etc. recently that are often very broad and vague. Such laws are handy tools for those in power to harass their enemies and particularly become dangerous when cynical politicians who rely on votes from certain group often find it useful to demand the punishment of someone who has allegedly insulted its members before elections as it has happened in the case of Ashis Nandi, an intellectual who made a subtle point at a literary festival in 2013 where local politicians preferred outrage and he was charged under Prevention of Atrocities Act. (The Economist June, 4th to 10th, 2016).
But ethnocentrism offers the best hope for pragmatic liberalism because it redefines freedom as ‘interdependence’ and as constituent of ‘solidarity’. This idea of pragmatic or relative solidarity, Rorty uses as a model with which to describe a non-foundational idea of human rights – one that bears a striking resemblance to that advocated by the likes of Douzinas. One feels clearly the pull of contemporary anxieties regarding the need to devise some kind of philosophy for the emergent ‘new world order’. Such a non-foundational human rights is a human right of consciousness a response to hearing sad and sentimental stories rather human right founded on moral knowledge or any other illusion. It is, Rorty adds, a human rights that might be Kantian in spirit, but which is Derridean in execution. What matters for pragmatists is devising ways of diminishing human suffering and increasing human equality increasing ability of all human children to start life with dignity.
In the ‘End of Human Rights’, Douzinas impressed the natural progression from the politics of critical legal studies to the aesthetics of post-modern legal thought. The problem with jurisprudential conceptions of human rights, at least in the modernist tradition, is their overzealous interest in ‘rights’ at the expense of the human. While the identity, the social imaginary supports a social organization in which human relationships will respect and promote the uniqueness of the participants. The idea of a ‘human rights imaginary’ impresses the non-essential nature of rights. Rights are merely instruments. What has essence is humanity, the mutually determining relations of ‘self’ and ‘other’. The Derridian resonance is obvious, perhaps never more so when Douzinas acknowledges that such a humanism must focus once again on the nature of love and affection, ‘pity and friendship’ as political concepts (Eg. in cases of Iraq, Afghanistan, Syria, Libya, Yemen and recently abandoned Rohingya Muslims, Minorities etc.).
It is not necessary to believe in God to be a good person. In a way, the traditional notion of God is outdated. One can be spiritual but not religious… Some of the best people in history did not believe in God, while some of the worst deeds were committed in His name.” These are not the words of a free-thinking rationalist that religious fanatics are gunning for. They are the words of Pope Francis. The backlash against religion has been spearheaded by scientists like Richard Dawkins and Sam Harris who have cogently and eloquently argued that far from being a negation of moral codes and an ethical life, atheism as a form of consciousness-raising is an affirmation of spiritual transcendence. When the French philosopher-mathematician Pierre-Simon Laplace presented a copy of his monumental work on the creation of the universe, Mecanique Celeste, to Napoleon, the soldier-emperor asked, why there was no mention of God in the book. Laplace replied “I had no need of that hypothesis.” Is it time we outgrew that ‘needless hypothesis’? Those who say it is, can do so with the blessing of Pope Francis. More than a century after Nietzsche proclaimed his demise, is humankind beginning to feel that – like an adolescent who outgrows childish clothes – we have outgrown the psychological, emotional and spiritual need of God?
J.S. Mill made three main arguments on freedom of speech : the argument from Truth, the argument from Democracy, and the argument from Autonomy or Self-Expression. John Stuart Mill’s celebrated study On Liberty also sustained with the traditional liberal arguments on the benefits of freedom of speech and the press on the breakthrough of truth. Mill extended the liberal tradition commenced by Milton and Locke ideas in the course of a broader notion of freedom of the press. Wellington states that freedom of the press derived from his concept of individual liberty when Mill illustrated ‘liberty of thought, from which it is impossible to separate the cognate liberty of speaking and writing’. Mill pursued the track of Milton and had an immense influence on the deliberation on press freedom. However, it was criticised that Milton’s views in favour of freedom of press from state or any other structure to manage were based on the idea that censorship of ideas inevitably resulted in a loss of an element of truth. Kathleen M. Sullivan stated that speech is embodied in a kind of ideological hierarchy in which mainstream ideas held widely at any given time by majorities or the socially powerful predominate over the systematically subordinated voices of dissent. Thus, protecting speech by dissidents and dissenters from regulation serves to equalize the relative opportunities.
The freedom of expression is considered as an integral part of a democratic regime, i.e. one based on some form of institutional arrangements designed to ensure significant responsiveness of government to the wishes of the governed. Members of the public in general, be the infants or convicts without the vote, or without a right to free expression, have an interest in the prosperity of democracy, hence, its existence is, in part, the existence of the right to free public political expression. The dilemma arises as to what level are there general principles of freedom of expression, and to what amount is freedom of expression category-dependent? It is stated that interference by government to discontinue the publication of what it regards as a false or misleading view seems contrary to freedom of expression whether the view concerns anything such as politics, religion, sex, health or the relative desirability of two kinds of automobile. Freedom of expression, as a philosophical crisis, is an example of a more general crisis about the nature and status of rights is to be tested. The interests with which freedom of expression is concerned especially deals with the interests that are the basis of special concern with expression.
There are three important justifications for freedom of expression:—
1) It helps in sighting of truth by open discussion. That is to say, it helps out in the detection of truth.
2) Free speech is a phase of self-realization and progress. Freedom of expression is a central part of each individual’s right to self-advancement and self-fulfilment.
3) Freedom of expression shields the right of all citizens to identify with political issues so that they can partake in better working of democracy. Freedom of speech therefore fortifies the competence of an individual in taking part in decision-making.
The media plays a critical role in stimulating debate about important issues, presenting facts and reporting news, uncovering corruption and misconduct and providing a vehicle for diverse perspectives. Therefore, it is considered as a lynchpin of democracy. This freedom carries with it the right to receive and communicate ideas orally or written through any medium. Regarding the justification for press freedom, it is observed by Jennifer Whitten-Woodring that free media will act as a watchdog over the government. Speech serves as a central means of potentially cooperative and presumptively nonviolent human interaction. It generates influence and commune. Press and the electronic media have obligations different from those that pertain to individuals and the freedom of speech with regard to individual may have an objective such as personal development or promotion of autonomous decision making. Such an objective has no direct relevance to Press. Think hard, work harder. If you dream of making a difference to the lives of the underprivileged, can retain your cool under stress, are willing to be non-judgmental and are amiable with different kinds of people, then Free Press is an option to explore. “One World is a product of journalism”. Today the stress is not only on information but ‘credible’ information. The onus is much more on broadcast journalist. The right of Free Expression, once the province of intellectuals, now becomes a matter of concern to all who favour socio-economic advances like adequate education, social justice and access to the news media. Freedom of Expression is no longer a political nicety but a precondition for social competitiveness. This lays down the foundation for an unusual political condition of the future of intellectuals, scientists, promoters of social justice and advanced managers of power, all of whom will now find that their interest depends on revolutionising the education system, widening the access of the entire population to computers and other news media, and protecting even extending freedom of expression. Such a coalition is the best guarantee of both intellectual and social advances in the economics of 21st Century. For Marx freedom was the recognition of necessity. 21st Century social structures can be built on media’s commitment to social Justice. Necessity is the mother of such commitment of a free and fearless media to secure the ends of social Justice and Liberty.
The Print and Electronic media are essential ingredients of Democratic dialogue. They are participants and not referees in the realisation of Constitutional ideals and aspirations. They need constant feedback. Their myopia amuses. Their size worries. Their errors hurt. Their arrogance angers. Like other institutions they profess ideals that exceed their very human capacities (Justice Iyer, K.). Gwynne Dyer while writing on “Free to Lie” laments that India is one of five most ignorant countries in the world. He further states that in the century and a half when there have been free mass media (and now social media as well), nobody has come up with a solution for this problem. “Free” includes free to make mistakes, and free to distort facts and tell outright lies. Are the media just pandering to existing popular fears, or are they actually creating them? The unsatisfactory but inevitable answer is : a bit of both.
Constitutional courts may be regarded as ‘go-between’, as intermediaries between majority rule and minority rights. In this respect, constitutional justice is a necessary correlate of the principle of decision-making based upon majority rule. Only when the process of democratic government takes place within constitutional boundaries, can minorities accept the decisions of the majority. Constitutional courts fulfil the role of inspiring consensus about the interpretation of the Constitution. That is perhaps the main reason why they are generally accepted in society – despite the fact they are nominated, not democratically elected. It is their function as judicial organs, which lies at the heart of this role. It is also this aspect of the court’s function which is often compared with that of the referee, who controls the rules of the game, not the results.
Very position in constitutional democracies places severe requirements upon the courts. The question is to what extent their decisions are still considered legitimate and when they are thought to overstep their power and become a threat to constitutional democracy and the media liberty. Courts and the Constitution ensure and define the parameters of the liberty of the Media. Every good and excellent thing in the World stands moment by moment on the razor-edge or danger and must be fought for whether it is field, or home or a Country”. Pollsters repeatedly tell us press credibility varies. If it did not vary, the print media would be doing the job. Its job and its performance cannot be rendered immune from criticism. The Constitution supports an informed public, creating a responsible representative Democracy, reflecting a common good and being ultimately respectful to the needs of all. The disclosure and wide publicity given to the officials facing corruption charges through print media by the Central Vigilance Commission is a very important and significant step in the right direction of open — government and consequent recognition of citizen’s right to know.
The Midday journalists who broke the story have done an important and courageous job. Some newspapers acting in solidarity have followed up story. A number of people have come together and made a public statement further bolstering that support. There are online petitions asking for a criminal investigation. If either the government or the courts do not order a credible investigation into the scandal, then a group of senior lawyers and former Supreme and High Court judges will hold a public hearing to examine the evidence that is placed before them. It’s happening.
V. CONTEMPT PROCEEDINGS
It is felt by the media that the courts are expected to be more sensitive to the duties and functions of the press and before taking any view it might be considered whether the criticism per se undermined the functioning of the courts in the estimation of the public by demeaning judges. In a democratic set-up, all institutions are open to bonafide critical evaluation of their functioning and such criticism in the public interest only strengthens the quality of their functioning. The dignity of the court can always be maintained more by restraint and magnanimity.
“Truth forming the basis of the media information has now been protected under the amended provisions of the Contempt of Courts Act; Therefore, media information based on truth and published in the public interest constitutes defence in contempt proceedings,” the Press Council observed recently. “The readers’ right to know all sides of any issue of public importance is a natural corollary of the freedom enjoyed by the press in a democracy.” Expressing unhappiness over what he called “trivialisation, corporatisation and tampering of news taking place everywhere,” the Chairman of the Press Council of India (PCI) Justice (retd.) G.N. Ray, has advocated the setting up a common and independent media commission to regulate the functioning of the entire media, including the fast-growing electronic media which is now beyond the purview of the PCI.
VI. BALANCING FREEDOM AND SOCIAL RESPONSIBILITY
“The Indian law of contempt of court is perhaps the most restrictive among the constitutional democracies” and also that there is a “built in unfairness in a contempt case where the court acts as judge, jury and hangman rolled into one, and judges are judging their own cause.” Frequent use of the contempt power had exposed intolerance among certain sections of the judiciary. One must however appreciate the just relief journalists, have got from the higher judiciary particularly in 2003 whenever they encountered high-handedness from legislatures.
Since media became very big player, issues of freedom, accountability, and social responsibility had become more important than ever before. Media growth in India was buoyant and dynamic, contrasting with the difficult, even gloomy situation faced by newspapers and also broadcast television in “many mature media markets, that is in many developed countries.”
It was unfortunate that the Article 19 freedom of speech and expression made available to a virtually privileged press through judicial interpretation was not available to the broadcast media, on account of arguments that are now clearly outmoded. They wanted the same degree of freedom must be made available to television and radio. But the paradox of the Indian situation was that while terrestrial television and also radio (with the exception of FM radio, which was not allowed to do news and current affairs) continued to be a state monopoly, television broadcasts that came via satellite and cable were functioning with no broadcast law, no regulatory framework, and “no clear rules of the game,” which contrasted with the situation of virtually all developed countries. A liberal broadcast law and a liberal broadcast regulatory framework are very much essential against the growing negative tendencies of sensationalism, tabloidisation, trivialisation, celebrity-worship and the unchecked use of hidden cameras, in the Indian news media. In the absence of institutional mechanisms of self-regulation to give meaning to journalism’s accountability and social responsibility, “the real challenge before the Fourth Estate,” since harping on freedom without demonstrating accountability and social responsibility would weaken the position of the media in society. Historically the Indian press had won its special place because of the positive roles it played, can be identified as “the credible informational, the critical-investigative, the educational and the agenda-building functions.”
The Guardian’s exemplary model, now adopted by ‘The Hindu’, the institution of the Readers’ Editor, an internal news ombudsman of independence and integrity with clear benefit to the newspaper and its readers. Institution of such mechanism by newspapers and media organisations will be self-corrective and self-regulating mechanisms. Dangerous business practices in the field of media have affected the fabric of Indian democracy. Big industrial conglomerates in the business of media have threatened the existence of pluralistic viewpoints. Post liberalisation, transnational media organisations have spread their wings in the Indian market with their own global interests. This has happened at the cost of the Indian media which was initially thought to be an agent of ushering in social change through developmental programs directed at the non-privileged and marginalised sections of the society. Media has at times successfully played the role of a watchdog of the government functionaries and has also aided in participatory communication. There is the threat of advertising revenues influencing media outputs. Those who control considerable wealth have the opportunity to sway public opinion in their favour with the help of mass media. In the 2G scam the Radia Tapes controversy brought in focus the journalist, politician and industrial conglomerate nexus which is a threat to democracy and undermines the media fraternity. Advertisements in newspapers, television, radio and at times the internet have become a part of the present day election campaigns. Candidates with better funds have the edge over others in being voted to office because they can buy newspaper space and considerable air time. Media organisations, whether in print, audio visual, radio or web have to be more accountable to the general public. It should be monitored that professional integrity and ethical standards are not sacrificed for sensational practices.
It is also necessary to ensure that journalists are appraised of their rights around source protection, so that they are not pressurized to reveal confidential sources; appraise the media of the complexity of the questions around the use of journalists as witnesses; encourage the media to become freedom of expression advocates, and to appraise them of the avenues available to lobby on specific freedom of expression issues. The right of freedom of expression protects people’s freedom to communicate in public.
Constitutional guarantees available to the press as an organization maintain the press’s independence. The principal attribute of the press’s institutional fortification is absolute editorial independence regarding both the structure and core of published material and, the function served by the press. The uniqueness of the institute classifies the capacity of security afforded by the approach of independence. The protection spans all stages of the publication process, including the gathering and investigation of news; its absorption and elucidation; its manner, set-up, and content; and its print and allocation. Additionally, the need to protect the foundation of a free press sanctions no general dissimilarity amid prior and successive restraints on publication or act of other press utility. In each occasion, legislative boundaries could breach the theory of independence.
Now a days, journalism persuades journalists and newspaper entrepreneurs to reconsider accepted ideas of newsworthiness, editorial policy, and professionalism. Broadcasters’ should respect the public’s right in broadcasting ‘to receive suitable access to social, political, aesthetic, moral and other ideas and experiences’. This works on fairness regulation, that the public interest require opportunities for expression of contrasting viewpoints on issues of public importance, dates back more than half a century. Under this, the broadcasters retain discretion to “decide what issues are ‘important,’ how ‘fully’ to cover them, and what format, time and style of coverage are ‘appropriate’. This poses the most potent threat to guarantees of free speech and press. Fairness regulation at its constitutional worst, therefore, creates gradations of speaking rights and restricts the speech of some members of society to magnify the relative voice of others.
Whether anonymity should come under the purview of free speech and expression? There are several reasons for placing anonymous political advertising within the category of the press rather than speech First, as a matter of technological necessity, during the founding era anonymity was predominantly a feature of the press rather than of speech. In US, press freedom protected commercial, scientific, artistic, and religious writings every bit as much as it protected political writings, however, the legal doctrine of freedom of the press was never unlimited. There is widespread recognition that the press could be abused, and that the law should prescribe remedies for abuse. Thus, an author, and sometimes a printer, could face unpleasant legal consequences if responsible for breach of parliamentary privilege, defamation, blasphemy, obscenity, perjury, sedition, or treason. Whether anonymity is protected should not depend on a court’s calculus of whether disclosure would suppress free expression in a particular case. The First Amendment of US Constitution protects an author’s privacy for its own sake.
Internet allows for new means of communication and thus tracking a user’s Internet activity seems intrusive because companies can exploit intimate information. The example is that of cookies, that are commonplace today because they can ‘remember’ log-in information, personal preferences, and can be used for security purposes. But cookies are capable of much more : they can store, and later transmit, personally identifiable or sensitive information. This data could include an individual’s name, credit card number, health condition, social security number, or lifestyle preference. Cookies are, by design choice and not by coding constraints, largely invisible to consumers and encrypted to be unintelligible to any user wanting to know what the cookies are saying about him or her. Thus these encroachments seem even more dangerous because ISPs already have users’ billing information in their database and could combine the data. It is all the more dangerous since smart phones take up all net banking facilities. This sort of behavioral advertising violate personal privacy and compromise personal autonomy because the consumer has no idea how he has been categorized and may be induced to act in ways he would not have chosen if he knew about his profile. To resolve this dilemma, some scholars argue that privacy should be enforced through civil litigation by creating a property right in personal data or by using tort law to remedy harms from exploited information. But it may be less effective than legislative and regulatory solutions in protecting personal privacy. Self-regulation provides flexibility and commercial success but seems to suffer from a poor incentive structure and inadequate enforcement. Legislation can provide enforcement and mandate nation-wide policies in the current political atmosphere which may get widespread support for a legislative remedy.
The defamation law apparently puts a ceiling on freedom of expression and the law should reconcile defamation law and freedom of expression. According to Sally Walker, any law which restricts freedom of expression should be made to satisfy three minimum standards:
1. The courts and the legislature, must be able to reconcile freedom of speech with defamation. Recently there is demand that the law of defamation needs a change;
2. The law should go no further than is indispensable to guard the interests justifying its subsistence; and
3. The law should be adequately obvious that those who are involved by it are proficient to resolve what is and what is not allowable by the law.
Cyberspace being the prospect of the information industry is a place where everybody is meeting, regardless of gender, age, race, or association. Since there is no regulatory body policing the Internet, the extent to which an individual is capable of acting without restriction is a mystery. Article 19(1)(a) is a local provision in cyberspace, users all over the world often pray to its talismanic force against those endeavouring to hamper free and robust speech. The assumed needs of the budding mercantile area of the Internet and therefore it is making on governments is the furthermost menace to the active libertarian theory in cyberspace. The Communications Decency Act is one such hoofmarks that may in the process of protecting individuals in cyberspace obliterate free and vigorous speech. This shows that Governments already have the authority to standardize cyberspace that is coterminous with their geographical boundaries. But, it is not clear that they can effectively regulate that portion of cyberspace without denying their citizens its benefits. Therefore the need for today is a rule making, fact-finding, adjudication, and enforcement process that is accepted as legitimate and is enforceable both in cyberspace and in the real world. The major legal issues in cyber world are on access, distribution, contract and tort. As models of governance, three possible models for regulation exist : no regulation, government regulation, and self-regulation. The alternative is not between a tranquil state of no regulation, self-regulation, and government regulation, but the blend of the three.
The unique nature of the cyberspace requires a uniform global system of regulation should bar nation-states from enacting inconsistent national legislation. Considering each in turn and comparing different forms of rulemaking that are least restrictive, most decentralized, and cost effective to those that are more centralized, restrictive, and cost inefficient. Through this process, we reach at the third model – private law, self-regulation, through a contract law paradigm which is best suited to govern cyberspace. The contract law model is most frequently offered as the governing paradigm for cyberspace. It is stated that for those threats from which technology and individual proposal do not present enough security, contract law or social enforcement methods endow with a good basis for generating a law of cyberspace. The users therefore need to submit their substantial rights during contract to government; consequently, the contracts must be essentially just due to consensus ad idem. Hence, the current vogue of shrink-wrapping contracts in cyberspace must end. Contracting parties must take advantage of the technological options in cyberspace that reduce the transaction costs of negotiating contracts so that each contract represents the unique meeting of the minds – or at least a meeting of the electronic agents. About dealing with the dispute part it is stated that it should be resolved initially through negotiation, mediation and arbitration.
Social media differs in several important respects from conventional print or television ads, and even other websites. These distinctions bring social media outside the commercial speech realm, and as such, restrictions on their use will be more highly scrutinized than those on advertising. Thus regulation necessarily will be flexible, thereby allowing the technology to reach its potential within legal framework. It is a fact that Social media is not merely a marketing but is a human connection. To the lawyers and attorneys it is said to be all the more advantageous as it is virtually cost-free podium from which lawyers can express, speak, comment on legal news, law firm issues, and experiences in court. Attorneys can make contacts quickly, exchange information, and collaborate across jurisdictional boundaries. Moreover, publically commenting on the law requires that practitioners keep current with new developments. Social media provides a valuable way to interact within the community and build a network. For this reason social media is quickly replacing alumni contacts as an important source of referrals. There lies the real significance of social media.
Lawyers already operate in a highly-regulated environment, and there are several standing ethics rules that could be construed as ambiguous as to their applicability in the virtual world. Suddenly applying these rules to social media use without further clarification could implicate due process concerns. Ethics rules are drafted to govern the substance, not the medium, of attorney behaviour. The rules should be clear that the traditional behavioural restrictions apply equally to social media. Instead of blatantly bringing in regulations, there should be criteria on posting news on Confidentiality of information, duties to prospective clients, responsibilities regarding non-lawyer assistants, advertising etc. This approach presents the best balance between regulatory ends and attorneys’ freedoms. It applies all the client protections already embodied in the current rules to the social media forum. The social media has a variety of benefits that attorneys can use to improve their practice and understanding of the law. These tools also give clients the ability to access information about the profession that was previously difficult to obtain. For all these reasons, any regulations placed on its use by lawyers should be reasonable and better serve social media to the legal profession.
VII. DIGITAL MEDIA
Social media being not simply the digital media, but the modern media, is considered as the best medium for bonding your lost associations, good opening to discover jobs, provides a podium of entertainment by posting pictures, sharing jokes, also partaking relevant articles on various aspects. With the proliferation of countless users and consumers, social media has become a platform to express opinions to a wider audience, ending the individual’s and society’s reliance on traditional media. With information flowing across networks and servers straddling several countries around the globe, there is a growing need to protect information pertaining to personal and national security. Unlike in the real world, where social etiquette and manners can sometimes seem restrictive and limiting, people feel they have a greater sense of freedom of expression and/or of speech when using online networks.
While traditional websites continue to exist, the robust and responsive utilisation of the tools that social media offers has improved their efficacy and visibility. The law in this area is still relatively unsettled and constantly changing, but some recent developments have created intriguing precedent, and the application of existing legislation promises to keep things interesting for the foreseeable future. Though the social media has global media platforms, the applicable legal systems are presently confined to national borders. If one is surfing on these sites and putting some personal details on it, there is a chance of misuse of information also. There is also a fear of hacking, stalking and online crime. There may be some people who are so much humorous; they may download your posted photos. There is no guarantee of such activities. Many people tend to go too far in sharing their lives and do not remember that the very real consequences that can occur. Thus in order to overcome these misuses in social networking sites, one should be aware about the legal implications i.e. what laws are there to get protection, if any misuses are occurred in social networking sites and what legal obligations are there both for the user and the site.
The main areas when users can get themselves into difficulty are through the posting of defamatory content or contents that infringes the intellectual property rights of someone. Since no statutory immunity exists to shield users, the standard laws pertaining to defamation and infringement apply. Likewise, if a user is found to have posted defamatory contents, the user will be liable, even if the sites can escape liability under section 230 of Communication Decency Act and Section 79 of Information Technology (Amendment Act), 2008. Similarly, if a user posts materials infringes on another’s copyright, the user will face liability for the infringement. Several of the most prominent cases regarding user’s liability for material posted on social networking sites have dealt with students suffering criminal charges or adverse consequences at their schools as a result of allegedly defamatory, threatening or indecent messages posted on social networking sites.
Facebook’s responsibilities as data controller, exist independently of the responsibilities of website operators. As a result, Facebook should design its social plug-ins in a way which is privacy-friendly by default, so that website operators are able to provide users with the convenience of social plug-ins, but without unnecessarily exposing data to Facebook. Thus the right to information, right of access, rights to object and erasure etc need to be precisely recognized.
Three predominant ethical duties must be defined in relation to informal discovery of social media data. They are : (1) the duty to affirmatively consider social media data when determining if claims or defenses are well-grounded in fact, or otherwise performing factual investigations; (2) the duty to refrain from contacting represented parties or from engaging in misleading or deceptive conduct to gain access to private social media content; and (3) the duty to consult clients on their own social media usage and to preserve evidence.
The ethical aspect even applies to what one writes in social media. Lyrissa Barnett Lidsky examines ‘dangerous speech’ issues as occurring around the world due to the handling of Facebook and various other social media sites. One such incident was an insulting tweet and YouTube video ended up in a hostile audience to riot and murder (the Terry Jones incident), and the other in which a blogger urged his unidentified, anonymous audience to murder federal judges (the Hal Turner incident). An assessment of these happenings discloses probable harms with Free speech theory. How spectators react to provocation, intimidation, or hostility expressions, are bewildered by the new reality social media create since unmediated character of social media speech also increases its potential for sparking violence. Apart from that, the anonymity of many social media interactions also cultivates violent behavior, and the rate of communications authorize provocative speech to reach individual audience members at the point when they are most vulnerable to engaging in violent action.
Dealing with Indian aspect, the Internet has made an unimaginable impact on the fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. The Internet democratizes Article 19(1)(a). Section 66A of the Information Technology Act penalises the misuse of Internet device and the Government can interfere in that, from such misuse danger is ‘clear and present’. In the recent past the misuse has caused 70 deaths and mass migration of several people from North East from South India. Misuse of Internet created several law and order problems threatening social fabric and national security. The Government has justified in seeking the provision as a reasonable restriction on freedom of expression under Article 19(1)(a). The Supreme Court, however, in Shreya case4 invalidated Section 66A of the I.T. Act, though on different grounds.
The ‘Clear and Present Danger Test’, as stated by Holmes, “served to indicate the importance of freedom of speech to a free society but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution. When those other attributes of a democracy are threatened by speech, the Constitution does not deny power to the [government] to curb it.” As characterized by Justice Brandies in a later case, the Holmes test “is a rule of reason. Correctly applied, it will preserve the right of free speech both from suppression by tyrannous, well-meaning majorities and from abuse by irresponsible, fanatical minorities.” With information flowing across networks and servers straddling several countries around the globe, there is a growing need to protect information pertaining to personal and national security as they have a greater sense of freedom of expression and/or of speech when using online networks.
Data protection and privacy laws aim to achieve a fair balance between the privacy rights of the individuals and the interests of data controllers such as banks, hospitals, e-mail service providers. These laws search for tackling the challenges to privacy caused by collecting, storing and transmitting data using new equipment. The ample range in types of data transfers across international borders that occur daily might give rise to different problems that require different solutions at different times. In the end, an approach to regulation based on careful attention to technology and business developments, coupled with genuine respect for cultural differences, is most likely to produce satisfactory, workable international solutions. Inaction, however, is not an option as the conflict has already manifested itself in the tensions that exist between the approach to regulation taken in the European Union and the approach taken in the United States.
As the greatest mode of forming associations through Facebook and other social networking websites, the Internet revolutionizes the fundamental right to freedom of forming associations under Article 19(1)(c) of the Constitution. But the necessity has arisen so as to ask ‘whether social media needs regulation’? There is no need of any specific Regulations as they can be found in reasonable restrictions mentioned in Articles 19(2) and (4). The Jurisprudence of the Court should strike a balance between demosprudence and legisprudence.
There is no yardstick to determine which are moral and which are immoral. H.L.A. Hart and Lord Devlin’s debate was concluded with the shared morality which we require in society for balancing democracy as well as morality. It has to be left to Jurisprudence of the Court as it is more prudent to determine moral standards than the legisprudence.
New Communication Convergence Technology is being misused and abused by criminals in cyberspace. Cyber pornography, online child pornography, cyber spamming, cyber hacking, cyber fraud, cyber terrorism, flowing of viruses, phishing etc. are cybercrimes. These are proliferating at a lightening speed in the age of information technology uprising. There is a need to adopt uniform legal system and co-operation worldwide. There is need to adopt specific laws on jurisdiction at international level. To test online transaction or transmission Judiciary may use the community standards of the place where it is originated or the place where it is downloaded. There is need of international co-operation and active International Cyber Crime Cell. Spam is horrible and threatening act. We need Anti-spam law.
Cyber Cafes, ISPs and parents must use filter software, timer clock of internet protocol and firewall to prevent minors from viewing and using objectionable websites and images. Cyber cafes and ISPs must demand photo identity cards, and use biometric filtering machine to identify every user and to help investigations in realistic sense. There is a need to spread awareness among minors, parents, adults and institutions about misuse and abuse of new technology and effects on society. About social networking e-mail etc. if the contents are transmitted in private between two or more consenting adults without causing any harm to society or maintaining decency and morality then it should be allowed as freedom of speech and expression in the age of Communication Convergence Technology.
The fact that the law in India is yet to attain clarity in relation to the liability of intermediaries is true. Certain changes are required to be made to the law as well as additional changes must be bought in the system of working of the legal institutions as well as intermediaries. It is essential to balance the interests of ISPs and the public at large. This can be done by making laws imposing minimum mandatory fair obligations on ISPs by providing immunity for their actions taken in good faith. It is essential to ensure collective efforts of all legal enforcement authorities involving both public as well as private players including ISPs based on cooperative models.
Encryption, a process in which digital messages are scrambled so that they cannot be accessed by anyone other than those to whom it is meant for, is a means to ensure freedom of expression and to keep information secure in the digital world. Encryption keeps intruders at bay. On 21st September, 2015 when the draft was released by the Government of India, experts and netizens could quickly figure out that the provisions had the real potential to undermine encryption. Another draft provision gives the government access to encrypted data that rest with government departments (save the sensitive ones), corporates and individuals. Another provision requires users to store all encrypted communications for a period of 90 days. The backlash had its effect; the draft was withdrawn the very next day. Most administrations have sought weaker encryption standards or backdoor access to Internet products. They present this as a public safety v. privacy issue. Administrations cite public safety as the reason for asking for encryption access. FBI Director James Comey complained to U.S. lawmakers recently:“We cannot break strong encryption.” British Prime Minister David Cameron has called for a ban on strong encryption. Granting governments the power to tap into every message and item of information and store them, will have the potential to make the system extremely vulnerable. David Kaye, UN Special Rapporteur on freedom of expression, wrote in a report in May:“It is a seemingly universal position among technologists that there is no special access that can be made available only to government authorities, even ones that, in principle, have the public interest in mind.” Access to encrypted data should, therefore, be provided as an exception, not as a rule.
Cyber security expert Ms. Hathaway recently stated that it will be very difficult to get a common view of the (cyber security) law across 196 countries; because there are different approaches, cultures, history on how we think about freedom of speech; the right to privacy and freedom & security.” No country should demand that the technology is weakened. Stating that “crimes happen too fast” on the internet, Ms Hathaway said “by definition international cooperation is too slow at the speed of the internet”. “We should be able to work on machine speed on some of these things. And, not at the speed of the bureaucracy.”
IX. JURISPRUDENCE OF THE COURT
Following the authors like Antonio Gramsci, Nickels Luhman and Upendra Baxi adjudicatory leadership can be studied under three forms of prudence, or bodies of thought which determine the province of constitutional hegemony : these are i) legisprudence viz. the principles or theory of legislation that take it beyond the contingency of politics, ii) jurisprudence i.e. that determines the principles, precepts, standards, doctrines, maxims of law and the concept of law and iii) demosprudence i.e. judicial review process and power that enhance life under a constitutional democracy. Put another way, it ‘describes law-making or legal practices that inform’, and are informed by ‘democracy-enhancing jurisprudence’, practices that inform and are informed by the ‘wisdom of the people.’
While we think that lawpersons know best the second, we have to look at all the three forms working together to achieve some grasp of law in late modern society. As innovated by the Indian Supreme Court, demosprudence speaks to us severally. It serves as a marker of the emergence of a dialogic adjudicative leadership between/amidst the voices of human and social suffering. The Court not merely relaxes the concept of standing but radically democratizes it; no longer has one to show that one’s fundamental rights are affected to move the Supreme Court or the High Courts, but it remains sufficient that one argues for the violations of the worst-off Indian citizens and persons within India’s jurisdiction. Concern for human rights has now become the order of the day and this concern has prompted a creative partnership between active citizens inactive legislatures and activist justices. New human rights norms and standards not explicitly envisaged by the original constitutional text stand judicially invented through PIL, Basic Structure Doctrine, Ban on Bans etc.
In India, the most important statutory provisions under the ambit of Article 19(2) are Sections 153A, 295 and 295A of the Penal Code, 1860. The purpose of Section 153A is to deal with hate speech promoting enmity between different groups on grounds like religion and race. Section 295 prohibits defilement of a place of worship or an object held sacred, with intent to insult a religion. Section 295A penalises blasphemy, which is outraging religious feelings. Clearly, many of these offences cannot be objectively defined. They are determined from the viewpoint of a “reasonable person”. It is obvious then that the line will shift from one society to another, and over time, but it cannot be obliterated. While deciding reasonable restrictions the Court provided legisprudence in its adjudicatory role.
The Constitution does not define the expression “reasonable restrictions”. Nor can the abstract standard or general pattern or reasonableness be laid down for all cases and situations. The test may vary under clause (1) from the right to right restricted by the impugned law (State of Madras v. V.G. Row5). The factors which should enter the judicial verdict are the underlying purpose of the restrictions imposed, the extent and urgency of the evils sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, and the duration of the restrictions. The standard is an elastic one : it varies with time, space and condition and from case to case (C. Golak Nath v. State of Punjab6).
“In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and scale of values of the Judges participating in the decisions should play an important part, and the limit of their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for the people of their way of thinking, but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restriction, considered them to be reasonable.” (State of Madras v. V.G. Row7) Reasonableness of restriction has to be viewed not only from the point of view of the citizen but also from the point of problem before the legislature and the object sought to be achieved. (From Kesavananda Bharati v. State of Kerala8 cited in State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat9). Herein we find in the adjudicatory leadership of the Supreme Court’s Jurisprudence the combination of demosprudence and legisprudence.
The last century, despite its extra-ordinary scientific and technological achievements has been one of the most lethal in human rights performance. A disturbing features of the contemporary times are the revival of religious fanatism and the abuse of Advanced Communication Technology which are posing a major threat to the humanity and individual freedoms. It is therefore necessary to reinvent, to rearticulate the foundational principles to save the world from holocaust. It may not be out of place to reinvent the principles of Vedanta of Hindu philosophy which suggest some fundamental and foundational principles for preservation and ensuring Human Dignity while asserting or guaranteeing or enforcing freedom of speech and expression by injecting the following universal truths into the human minds.
i) ‘Amrutasya Sishu’- children of immortality.
ii) ‘Vasudhaiva Kutumbakam’ – The entire world is a family
iii) ‘Sarve Janah Sukhinobhavantuh’ – Welfare of all beings.
Today, when “narrow domestic walls” and ‘General Drift in Society’ are emerging all over the globe, dividing people into ever smaller groups engaged in hating and fighting each other and encouraging intellectual murder or suicide, Gurudev’s voice must resonate on the occasion of his 75th Death Anniversary
“where the world has not been broken up into fragments
By narrow domestic walls
Where tireless striving stretches its arms towards perfection
Into that heaven of freedom, my Father, let my country awake”.
NOTE : Foot Notes omitted. Inputs from Lloyd’s Introduction to Jurisprudence by Michael Freeman, Monograph by Meera Mathew and Editorials and Articles from Newspapers are gratefully acknowledged.
[This Article was first published in CNLU Law Journal CNLU LJ (6) [2016-17] 1. It has been reproduced with the kind permission of Eastern Book Company]
* Pro-Chancellor-Emeritus/Vice-Chancellor, Chanakya National Law University, Patna.
** Dean & Principal of New Law College, Bharati Vidyapeeth University, Pune.
3 Sardar Bhagat Singh was hanged on midnight of 23rd March 1931, thus advancing it from the dawn of 24th March, 1931. Martyr Bhagat Singh was 23 years at the time where he kissed the noose as it was lowered to his head.
4 Shreya Singhal v. Union of India, (2015) 5 SCC 1.
9 (2005) 8 SCC 534, 563.