Sanctifying sentiment? Bail must be overriding principle in free speech cases unless theres incitement to v – The Times of India Blog

Supreme Courts refusal to grant interim protection from arrest to the cast and crew of Tandav facing FIRs in multiple states, for allegedly hurting religious sentiments, doesnt help the cause of free speech. The court observed that the right to free speech is not absolute and cannot come at the cost of hurting the rights of others. Hurt to sentiments, however, is a slippery slope that imparts a chilling effect on any exercise of the right to free speech. If Article 19(1) of the Constitution protects the citizens fundamental right to free speech, it is noteworthy that hurt to sentiment doesnt figure among the reasonable restrictions to free speech in Article 19(2).

Hurt to sentiments is subjective in the sense that what is entertainment or information or a legitimate belief to one person could be deeply disturbing or falsehood or blasphemy for another. Unless a clear cut offence that endangers public order by inciting imminent violence is committed, the state and its organs like police and courts will ordinarily have a tough time adjudicating free speech cases amid such subjective biases. Clearly, the Tandav makers havent succeeded in inciting any such offence. Indias free speech laws then necessarily command authorities to exercise forbearance in such cases.

The tactic of police filing cases in multiple states is a deadly and effective instrument of state harassment. Few individuals have the resources or temperament to withstand such pressure. In SCs glorious precedents lies its equally effective antidote of asking the offence industry to refrain from seeing what they cannot stomach. Lawyers for the Tandav cast and crew invoked the SC relief in similar situations for journalists Arnab Goswami and Amish Devgan. Both hyper-aggressive practitioners of their free speech rights were granted protection from arrest, and rightly so, effectively ending witch hunts against them.

The Tandav petitioners have an uphill task approaching each high court under whose jurisdiction FIRs have been filed, seeking protection from arrest. They had apologised and deleted the offending portions hoping to mollify the culture censors. A similarly apologetic Munawar Faruqui, still in jail for jokes he didnt crack, has suffered three bail rejections. A single-judge MP high court bench has raised the possibility of investigation coughing up more incriminating evidence. Faruquis jokes disqualifying him for bail conflict with free speech protections under Article 19(1). All courts must promptly call the police bluff, not let it play on much longer.

This piece appeared as an editorial opinion in the print edition of The Times of India.

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Sanctifying sentiment? Bail must be overriding principle in free speech cases unless theres incitement to v - The Times of India Blog