Morality, decency and free speech

JUSTICE Sudhanshu Dhulia of the Hon’ble Supreme Court is a most interesting man. Not just because he is the elder brother of Hindi film director Tigmanshu Dhulia — think, Gangs of Wasseypur, Paan Singh Tomar, Saheb, Biwi aur Gangster, etc — but because you can see the righteous anger in him, that accompanies his judgments, in which bad people are punished or good is upheld, or, most importantly, the idea of freedom of choice that is fundamental to the Constitution is calmly reiterated.

At the risk of turning him into a hero, he has the makings of one. People like us applauded this April his confirmation of the Madras High Court’s conviction of those awful parents who killed their own daughter and son-in-law (“a wicked and odious crime…is the ugly reality of our deeply entrenched caste structure”); also in April, Dhulia asked why there existed this prejudice against Urdu in a Maharashtra municipality (“the prejudice stems from the misconception that Urdu is alien to India…this opinion is incorrect”); and back in 2022, he delivered a — split — verdict against the Karnataka government’s decision prohibiting female Muslim students from wearing hijab (“it should be a matter of choice…a matter of conscience, belief and expression”).

Now there are others in the Supreme Court star cast of course — this week, Justice Surya Kant of Haryana, who will be Chief Justice soon, warmed the cockles of the nation’s young heart when he scolded a gaggle of Haryana cops on the young Ashoka University professor Ali Mahmudabad’s case — the cops had taken away all of Ali’s devices and expanded the inquiry of his alleged crime (about two social media posts targeting the government for choosing a Muslim spokeswoman for Op Sindoor briefings) by asking for information of his foreign trips over the last 10 years. “You don’t need him, you need a dictionary,” Kant yelled at the policemen, albeit metaphorically.

Young India applauded, then did a double-take. It was the same Justice Surya Kant who in March had called the comedian Ranveer Allahbadia all kinds of names (“disgusting”, “filthy” and “insulting”) when the latter had cracked a singularly inappropriate joke about mothers and fathers. At the time, Surya Kant had talked of drawing a line between free speech and vulgarity. In May, he stated that guidelines for social media use were needed.

Earlier this week, Justice Surya Kant finally came out with it. Article 21, which deals with the right to life and liberty, he said, should and would prevail over Article 19, which deals with freedom of speech and expression. “Article 19 can’t overpower Article 21… Article 21 must prevail if any competition takes place,” he said.

The judge was finally examining the heart of the matter — the conflict between rights and duties. Clearly, he believed, some fundamental rights were more fundamental than others.

Certainly, the founding fathers must have thought about this dilemma that was certain to surface across the ages. So they limited freedom of speech guarantees in Article 19(1) by immediately stating in Article 19(2) that free speech was not absolute, and reasonable restrictions must be placed on it in the interests of sovereignty and integrity of India, public order, decency or morality.

Certainly the last phrase can be problematic. The question, of course, is whether a Supreme Court judge’s morality is more important than the decency of the public at large and who is to finally decide on either.

Often, social mores are way ahead of the statute books, but it takes a brave man to look outside the lakshman rekha. When Section 377 which began to criminalise homosexuality in 1862 was finally read down in 2018, it was the erstwhile BJP leader Arun Jaitley, also a notable lawyer, who persuaded his fellow party politicians that a revolution was not in the offing if a few people of the same sex had sex with each other.

Similarly, while the hon’ble judges well understood the value of free speech in real life, how was it to be treated on social media? Did Ali Mahmudabad’s posts constitute free speech or was it a recipe for offending women, as a BJP leader believed it was?

Social media commentaries that are offensive to someone or other are far too many to recount. There is Kunal Kamra with his “gaddar” or “traitor” jibe allegedly against the Maharashtra deputy chief minister. There is Congress MP Imran Pratapgarhi reciting a poem that someone in Gujarat found inappropriate so an FIR was filed against him. As for Ranveer Allahbadia “mother-father” type jokes, a survey carried out by the hugely popular Selfie With Daughter campaign — promoted by none other than PM Modi — called the “Gaali Band…” campaign, found that gender-based abuses about mothers and sisters were most rampant in Delhi (80%), followed by Punjab (78%), Uttar Pradesh and Bihar (84%) and Rajasthan (64%).

Perhaps the Hon’ble Supreme Court should take suo motu cognisance of how North Indian males speak, and not just on social media.

Perhaps, the heart of the matter is that we are like this only — although that is hardly a reason to go after people speaking their hearts out.

In May, when Ali’s case first came to him, Justice Surya Kant made it clear that if students and professors “dare to do anything…if they try to join hands etc, we know how to deal with these people, they are within our jurisdiction.”

You could accuse Justice Dhulia, our hero-in-the-making, also of an Et tu Brute. When Hemant Malviya, a cartoonist from Madhya Pradesh, sought anticipatory bail earlier this month from the Supreme Court because the MP High Court was okaying his arrest — over a 2021 cartoon on PM Modi deemed to be in poor taste — the judge exploded.

“Hadd hai! Log kisi ko bhi, kuch bhi keh dete hain (This is too much. These days, people write anything, say anything, without caring about their language),” Justice Dhulia said.

As the scales fall from our eyes and we look thunderstruck at our would-be hero, the thought surfaces, unbidden : If even the Supreme Court is asking us to self-censor our speech, our drawings, our poetry, our music, our movies, our thoughts, where are we supposed to go for protection?

This, then, is the great game dilemma this week. India’s conservative and feudal society, which in the wake of the trauma of the Partition was allowed its great escape by the Nehru brigade towards egalitarian ideas like secularism and socialism, has happily fed into the hard right turn of the past decade.

How now to reverse gear?

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