A.K.A. ON Free Speech, Part -II
This is the second part, or continuation of an earlier article written titled “On Free Speech” , and is intended as a commentary and examination of the limits to the freedom of speech and expression.
What does the right to Freedom of speech and expression (FoE for short) entail? Is it an absolute right? No, of course not. Like all other rights, FoE has limits to it. FoE does not mean that you are free from the consequences of the exercise of your free speech. Suppose I am employed in a private company X, and in a public forum, I make comments which are considered to be against the policy of the company. Even though this was not defamatory in nature, or against any law, and is constitutionally protected, the company X can fire me without any legal hurdles by citing this reason. A recent example is when Google fired the employee who wrote that anti-diversity memo. The United States, as I explained earlier, has higher standards of protection of free speech, but yet James Damore was fired, and even though he’s suing hes’s suing under different provisions and not suing Google for violating his constitutional rights. Why? as mentioned earlier, because constitutional protections are only enforceable as against the state. This does not mean that Government servants can enforce their fundamental rights against the state. Public servants are held to different standards than individual private citizens, and thus they can be suspended or even dismissed form service for any activity that may be considered anti-government.
There are of course other general limitations to FoE. The various distinctions and full scope of such differences are not in the cope of the article, so I will omit further discussion on this. What is within the ambit of discussion on popular forums is the question of defamation. Unlike most liberal democracies, in India defamation can also be criminal. While this is clearly agianst the principles of FoE, and I personally am against such a provision, however, this continues to remain in force.
Taking this discussion on FoE to contemporary relevance, let us consider two situations, or real life scenarios:
First, take the situation where Amit Maviya, the head of the Information Technology of the Bharatiya Janata Party tweeted this, regarding the conviction of the slain journalist Gauri Lankesh in a defamation case:
scroll.in, an “independent news venture” is a “warning” to all journalists in the country. Yeah, it is. If you publish defmatory, baseless articles, prepared to be sued by the person who you’re making stuff up about. Scroll.in questioned this tweet on the basis that BJP was contemptuous of “press freedom”. It is, however, stupid to link this tweet and form a narrative of the BJP being contemptuous of press freedom. Advancing such a narrative is counter intuitive since it basically endorses that the “press” can lie with impunity. (cos of Press freedom, braaaah!)(But Scroll.in does not care if it is counter-intuitive and/or stupid, as long as they can bash the BJP, of course.)
Second, take the instance of the BJP sending a legal notice for defamation to Ramachandra Guha, for linking the BJP and Rashtriya Swayamsevak Sangh (RSS) to the gruesome murder of Senior Journalist Gauri Lankesh. A spurt of reactions came, condemning this, and many superstars* claimed that this is even more proof that BJP is “fascist, anti-free speech” and so on. Forget obvious hypocrisies, let’s look at what has happened: the Secretary of the BJP Youth Wing in Karnataka sends a legal notice to Guha for what is clearly a defamatory statement. (Oh come on, linking your organisation to cold murder is not defamation? This also why Shashi Tharoor filed a defamation case against Arnab Goswami, because he felt he was being wronged. That’s how a legal system works. If you have a grievance against someone, you don’t go kill them, you use the legal system to get wrongs against you corrected. Rule of law, everyone.)
Keep in mind that we, as private individuals or journalists, or editors or politicians do not get to define what is defamation and what isn’t. That is up to the judicial system. So in this particular instance, when X felt that statement by Y is defamatory, he has a right to recourse to the courts, regardless of who X and Y are. If we are characterize such actions as anti – FoE, that means anyone who is a proponent should never file for defamation, lest they be considered hypocrites.
Consider Guha’s tweet after he was slapped with the notice:
Whatever Atal Vajpyee’s stance on defamation be, the BJP and its office bearers have a legal right to get recourse for you making defamatory statements. Them sending a legal notice and or filing a case against you (wait for it) IS NOT A VIOLATION of your right to free speech and expression.
(Whatabouttery, you would claim. well, whatabouttery is the only way we can expose your patent hypocrisy, so please.)
(NOTE: I have conflated the idea of free speech and press freedom in this article. However, while complimentary ideas, they are not similar. I will attempt to deal with this distinction in future articles.)
Please also note that this is not any way or manner legal advice. Consult a professional lawyer for any such advice/guidance.