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On Free Speech


There has been a debate on the issue of free speech in some twitter circles. Here are my thoughts:

(For context, see the twitter conversation between Vivek Agnihotri and Rupa Subramanya)

Speaking purely from a legal perspective, the Constitutional protection afforded to US citizens are superior to the constitutional protection that has been given to Indian citizens. This comes down to the exception clause that is included in the Article 19 Clause 2. The clause limits the freedom of speech and expression to “reasonable limits” which include blasphemy, sedition and so on. Such an exception clause is absent in the United States constitution, and this is why the constitutional protection of free speech in the United States is considered to be wider. One can see real world examples where Indian citizens right to free speech were limited due to the exceptions – Kamlesh Tiwari and TP Senkumar comes instantly to mind. The United States, on comparison, accepts the burning of its own flag as an acceptable exercise of this right.

FoE is generally enforceable against the state and its instruments, and not against private individuals, whether real or fictious. Constitutional rights are generally considered to be limitations on the state. Conversely, one can say that the state has a duty to protect our right. (This does not mean the state can force the right to be enforced against private individuals.)

While these are the legal precepts of FoE, in practice, FoE is limited by societal acceptance. That is, to what extent can you go about expressing yourself without being stigmatised and facing adverse consequences from society. This while not being a legal limitation, is a practical limitation that citizens will face. Of course, even in this respect, India is miles behind the United States. What could be of relevance here, and what many people alluded to in the debate was the growing tendency against free speech in the US. Whether it be the Berkeley riots or Antifa demonstrations. This is true for academic circles in USA and India as well. However, in India, the exercise of FoE has more legal and social limitations than in the USA, regardless of how you look at it.

(Caveat: There are many legal nuances to the full extent of the Right to Freedom of speech and expression. I have only considered the constitutional protections in general terms.)

(Note: This article is only meant as an introductory article meant to indicate my thoughts on the issue at hand. It was originally meant to be a twitter snap, but it was too large for this, so I made this into a short commentary.)

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