The Vishwaroopam episode is a case of hecklers veto, or use of law to muzzle free expression.

The use of law to bully people into silence, called hecklers veto, is not unique to India.

Freedom of expression in India is under threat. This year we have the Tamil Nadu governments ban on Vishwaroopam, the Ashis Nandy FIR, the smothering of Kashmirs first all girls rock bands music, and the removal of semi-nude paintings of Hindu deities from an art gallery upon the polices suggestion. Another Rushdie-banning controversy is upon us, and yet another Facebook users arrest has made the news.

Clearly, our right to freedom of expression is under an ongoing siege. The onslaught comes in varied forms: bullying by members of society, informal government action with the overhanging threat of the law, and direct use of the law (and of a variety of legislations within it). Each form is encouraged, exacerbated even, by our problematic interpretation of freedom of expression principles. Our law allows a group of intolerant people to silence a speaker by creating a threat to public order or by threatening the speaker directly, and our state is proving utterly ineffectual in protecting speech from intolerance.

Indias first Kashmiri all-girls band is tragic proof of horizontal attacks on speech their music was silenced by the grandmuftis declaring it un-Islamic, and the attendant social pressure that tends to follow. They were not protected from this horizontal attack. The Palghar incident also had echoes of horizontal pressure, which was used to directly bully Shaheen Dhada, via friends advising her to apologise and strangers slapping her, before the instrument of the law was used to bully her further.

The instrument of the law can be used in invisible, informal ways, as Bangalores Chitrakala Parishath incident illustrates. Here, the pressure of police suggestion, carrying the implied threat of the force of the law, was used to ensure that semi-nude paintings of Hindu deities were removed from an exhibition. It appears that this police suggestion was motivated by the fear that those paintings could trigger law and order problems.

Vishwaroopam was banned using the law, specifically section 144 of the Code of Criminal Procedure, which empowers the government to issue orders in urgent cases of nuisance or apprehended danger. However, orders issued under section 144 would still need to observe the boundaries drawn for it in Article 19(2) of the Constitution.

Some may argue that controversial or offensive speech can legitimately be restricted since public order is one of the grounds for which our Constitution permits the restriction of the freedom of expression. However the original text of the Constitution did not include public order among its permissible grounds for restriction. This was inserted in the First Amendment of the Constitution, but was fortunately accompanied by the word reasonable before restriction, thus ensuring that the freedom of expression can only be reasonably restricted under the exceptional circumstances listed in the Constitution.

This insertion of public order came after the Supreme Courts invalidation of government pre-censorship of speech on public order grounds in Romesh Thapar v. State of Madras (1950), declaring that the Constitution required that nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression. Therefore, Parliament amended the Constitution to expand the grounds on which the state could restrict speech, and included public order among the expanded grounds. The trouble with this is that the intolerant are now able to create a public order problem to silence speakers.

The Supreme Court of India, in Babulal Parate vs State Of Maharashtra (1961) found that public order must be maintained in advance in order to ensure it, and ruled that restriction of Article 19 freedoms of expression and assembly in the interests of public order is permissible. However, all such restrictions must continue to satisfy the reasonability test laid down in the Constitution, providing our judiciary with the opportunity to ensure that intolerance does not continue to oppress speech.

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