NEW DELHI: In India this week, two incidents which will have repercussions on free speech have made their way to court. One, the case of the minister Azam Khan who had suggested that a political conspiracy was behind a heinous rape in Bulandshahr. The other is that of Rahul Gandhi for his statements on the RSS and the assassination of Mahatma Gandhi.

In the first instance, the Court will now have to gauge whether such a comment as the one by Khan -- where he termed the July 29 Bulandshahr gang rape a political conspiracy -- can be seen to be protected by freedom of speech. The few issues formulated by the Bench for amicus curiae Fali Nariman are whether such comments not meant for any self defence defeat constitutional compassion and sensitivity. Further whether such comments can affect fair investigation and also allow the victim to distrust the investigation process.

Second, the criminal defamation case against Rahul Gandhi for his statements on the RSS and the connection of those associated to the group in the assassination of Mahatma Gandhi. In March 2014, while addressing an election rally in Bhiwandi, Rahul Gandhi had said, “RSS people killed Gandhiji and today their people talk of him. They opposed Sardar Patel and Gandhiji.” The Supreme Court earlier this year held criminal defamation (section 499 and 500 I.PC.) as being constitutional.

The Bench had held that the right to reputation and the requirement for social harmony need to be balanced with free speech. The Court also stated that truth alone will not formulate a defence but needed to also be for public good and this would depend on the facts and circumstances of the case. Similarly the place, purpose, audience and scenario in which the speech is made will also be taken into account.

We may now go back to October of 2001 where the Bombay High Court quashed the forfeiture order (all copies and manuscripts of play to be forfeited) of the state government issued against the play “mee Nathuram Godse boltoy” a play that was Nathuram Godses account of the assassination and was widely opposed on being offensive and defamatory to the legacy of Mahatma Gandhi. However, The Bombay High Court found that such a forfeiture order violated the right to freedom of expression.

So now what in the current case? We now face a situation where a Trial Court might have to conduct a historical study ranging from the 1971 Justice Jeevan Lal Kapur commission report which holds the assassination part of a larger conspiracy including Savarkar to the various documents showing a possibility of RSS conspiracy.

What is becoming a real challenge globally in view of the multidimensional challenges to free speech is finding jurisprudential consistency. In India, Several legal commentators have opined the legal principles applied when striking down 66-A are progressive and correct in law while the upholding of criminal defamation has not been consistent in application of legal principles and remains philosophically regressive. However though several critics find that courts have muddled in the application of law.

It must be realised that an attempt to look for an aggressive and uniform upholding of an individual liberty (free speech) in certain social-political contexts might fail other aspects of constitutional justice. This is not to argue that the judiciary should resolve immediate disputes without addressing methodology and precedent but should proceed to apply sound yet creative juristic tools to balance the various facets of the constitution.

The cases of Azam khan and Rahul Gandhi are completely different yet the constitutional right to speech will be used as a defence by both. The Courts must move towards creating jurisprudential principles to move towards a more consistent and balanced approach to freedom of expression.

The current debate on freedom of expression should be located within the context of socio-economic changes. The 1990’s saw the world rapidly globalize through far reaching changes in the international economy and the spread of technology. India through the 1991 reforms irreversibly became a part of the global marketplace of goods and ideas. A valid question is: How has the Supreme Court of India, the final interpreter of the constitution adjudicated on our rights in view of these socio-economic changes?

March of 2015, the Supreme Court of India struck down section 66-A of the Information and Technology Act (punishable for posting offensive material on the web) as being unconstitutional on the grounds that the provision violated freedom of speech. The question on whether “right of privacy” can be recognised as a part of the fundamental right to life (Article 21 of the Constitution) will also be heard in context to the invasive nature of the Aadhaar card.

There will also be a rehearing on the constitutionality of section 377 of the IPC through a curative petition (re-examination of a final judgement of the apex court in case of gross miscarriage of justice). In the meanwhile, in 2014 the Court in National Legal Service Authority vs Union of India) recognised transgender rights .

From same sex rights to the recognition of legal equality for transgenders, the right to privacy, and the right of freedom to express viewpoints on the internet have all been constitutional inclusions made by the Judiciary and reflect social issues that are essentially global in nature.

Currently, freedom of speech and its limits is one of the most fiercely debated issues in democracies across the world. This is because free speech is an all encompassing right which defines free expression whether on the internet or about political speech, or of sedition, to matters of art and literature.

In 2015, post the Charlie Hebdo killings, France saw large numbers defending the French revolutions principle of free speech. However as Glenn Greenwald points out that these protestors appear more self serving than consistent supporters of free speech. In fact, since the Charlie Hebdo attacks the state seems to have further curtailed free speech. The law enforcement agencies have arrested and managed to convict several persons on the grounds of hate speech including activists who called for the boycott of Israeli goods.

Defining the limits of freedom of expression has become a more complex task with the diversity of identities in modern nation states. This can also be seen in Australia where there is an ongoing debate on a plebiscite on same sex marriages. Proponents of this plebiscite argue that in a democracy, free speech must be absolute in discussing all issues while others feel to the contrary reasoning that the tenor of arguments on same sex marriage might lead to marginalising a minority community arguing the Parliament to be seen as the place to debate such issues.

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