31th January 2020 : The Hindu Editorials Notes : Mains Sure Shot
Question – Should the restrictions on free speech be reviewed?
Context – The recent turn of events.
- Earlier there was a very clear distinction between political speech and the kind of restrictions on political speech, it was clear whether it’s a speech related to public order or sedition, or speech that was related to or offensive to anybody’s religious sentiments. And you had different kinds of jurisprudence on both of them.
- But today speech pertaining to religion and causing offence to religion is actually conflated i.e. mixed with political speech and that is taking us into very new and uncharted territories as far as freedom of speech is concerned.
What kind of speech should be restricted?
- To decide this it would be best to apply the test that was used by a judge called Oliver Wendell Holmes of the U.S. Supreme Court.
- He said that to demarcate which kind of speech is to curtailed and what not, one can ask a simple question that, does the speech given a person provokes argument or debate or does it induce a violent action.
- The example he gave was – a person who falsely shouts fire in a crowded theatre immediately induces panic with his words. In other words, you can’t argue with the man who shouts fire in a crowded theatre. But if there is some scope for argument, then no matter how inflammatory, I think that speech should be allowed.
- So that brings us back to the test that Justice Nariman articulated. So long as you’re able to debate and discuss with each other, then, really, there’s no reason to prevent a person from saying what he wants, even though you might not find that speech to be palatable.
- Another interesting and relevant aspect to this is the argument of speech that punches down rather than punches up. Which is to say that in defining hate speech or defining what kind of speech can be permitted or not permitted, one really relevant test is to look at whether that speech is addressing or attacking a community that is oppressed, or a community that is dominant. And who is making that speech and who is it addressed to and whether we want that kind of relativism in our assessment of what kind of speech should be allowed because surely there is a difference between speech being made from a dominant, or perhaps even an oppressive, community directed downwards, and subversive speech that is coming up from the most oppressed communities.
So in this scenario should restrictions on free speech be reviewed?
- We have to understand that the constitution is a historical document, it was the product of the times it was written. The rime the constituent assembly was doing debates, the situation in India was marked by communal riots and influx of a large number of refugees. So it is no surprise that the first Amendment to the Indian Constitution introduced various additional restrictions to the right to free speech, while also making those restrictions subject to the test of reasonableness.
- A large amount of the trouble with our laws that concern speech and expression is that these laws are criminal laws. Let’s take the example of sedition. Let’s assume that you are a stand-up comic and that you make fun of somebody who’s in a position of power. What the police in the state in which you’re located has the power to do now is to register an FIR against you knowing fully well that it’s not sedition. Sedition is when you invite people to take up arms against the government or violently overthrow the government. So, if you want to do a stand-up routine, even though everybody really knows what the law of sedition is, you’re going to think 10 times before making fun of a person in power.
- So, we need to also be aware that free speech restrictions don’t just come from legislation on behalf of the government, we also need to understand, down to the lowest level of our law enforcement and judiciary, the concept of what is the chilling effect ( a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction) and how that is inimical (tending to harm) to our democracy.
Having discussed all this, should the legislative powers be given to the courts as they are guardians of the constitution?
- when Parliament legislates, if there is a mistake, we can go to a court and we can say this is unconstitutional. But when the court legislates, if there’s something in that legislation that somebody wants to challenge, there’s no real option.
- The courts being the guardians of the constitution should be vigilant and keep revising and reviewing their judgements.
Question – Comment on the changed abortion laws.
Context – The recent amendments
- Union cabinet on Wednesday approved a bill that proposes to permit the termination of pregnancy up to 24 weeks from the existing 20 weeks.
- Reason – several petitions filed in courts seeking permission for aborting pregnancies at a gestational age beyond the present permissible limit on grounds of
o foetal abnormalities or
o pregnancies due to sexual violence faced by women
- The bill will make amendments to the existing Medical Termination of Pregnancy Act, 1971.
- Will increase the upper gestation limit for termination of pregnancy under certain conditions.
- The extension is applicable to ‘special categories of women’ (survivors of rape, victims of incest and others such as differently-abled women and minors).
- In cases of foetal abnormalities, it is diagnosed by Medical Board and then only abortion can be proceed.
- requirements for opinion of one doctor for termination of pregnancy up to 20 weeks of gestation, and opinion of two doctors for termination of pregnancy of 20-24 weeks of gestation.
- name and other particulars of a woman whose pregnancy has been terminated shall not be revealed, except to a person authorised in any law
- Expand access of women to safe and legal abortion services
- Bill ensure dignity, autonomy, confidentiality and justice for women.
- will strengthen reproductive rights of women.
- women can now rely on formal channels for abortion. As earlier informal channels for abortion are risky, dangerous and even leading to death.
Need for the bill
- Earlier, mortality of pregnant women was about 8% higher due to unsafe abortions.
- In case of rape, the woman is weak or underage. Such girls didn’t even know they were pregnant and would fall prey of unsafe abortion practices.