Speech in India is governed by an amalgamation of legal mandate, social norms, and often-florid rhetoric largely propounded by those who are privileged and those who echo the privileged. It is they who almost exclusively determine when the law is invoked and how social norms should be shaped, whether through their socio-economic ability to approach courts or through the clout they wield within patriarchal social structures.

India’s constitution guarantees the right of free speech, and it is possible to argue that the right accrues not just to Indian citizens but to all human beings. That said, although freedom of speech is recognized as a fundamental and inalienable right, even within the constitution it is recognized along with other rights such as those to life, liberty, and religious freedom, over which it cannot claim primacy.

Thus even if the state were to have passed no additional statutory laws in that regard, issuing a call to genocide or a death threat would almost certainly be inimical to the constitutional scheme. It would be an exercise of free speech though not one that the law would find legitimate.

As it happens, there are a number of provisions within the Indian Penal Code and in special statutory instruments that could easily be invoked to counter threats and incitement to commit genocide or murder. But the fundamental law of the land itself will reject the notion that such speech is legitimate.

In public discourse, though, such speech is not always categorically rejected. In recent years in particular, we have seen the development of rhetoric in which those without privilege and those who speak on their behalf are abused and dehumanized.

Dehumanization, we know, is what once preceded gas chambers in another context. The failure to respect human dignity, not least in speech, is also closely linked to a range of human-rights abuses reportedly visited on so-called illegal migrants in countries that otherwise do not hesitate to speak of law and justice. There, too, language that supports dehumanization influences public response to what should be indefensible.

Even when it comes to situations that are not as dire, both law and social norms come into play. In India, this has been exemplified by several recent occurrences relating to religion, including one of a chef making reference to Hindus who he said “had been terrorized by Islam for some 2,000 years,” and another of a scholar speaking of Lord Ram, revered by Hindus, in terms devoid of reverence.

These episodes evoked extra-legal reactions that included both problematic calls to boycott the chef’s restaurant and possibly illegal personal abuse against the scholar, as well as voices of support from those who could have claimed to have been offended.

Additionally, there was the possibility of laws against the promotion of societal disharmony being invoked even if, in the ultimate analysis, the invocation were to prove to be unsuccessful. These laws do not legitimize speech made entirely without reference to fact. Even where speech is factually accurate, they often take into account the intent and effect of speech while determining its legitimacy.

Although consequences differ and application is far from uniform, the law, like social norms, does not contemplate the legitimacy of absolute free speech or legitimize the notion of speech without consequence. Failing to support calls for consequence-free speech in all contexts is not automatically a failure to support free speech. Given the harm that speech can potentially cause both at the individual and societal level, it is hard to make the case for absolute free speech.

Public discourse in relation to free speech is, however, a curious creature that has all too often refused to recognize the legitimacy of restricting speech, especially in contexts where upper-class men tend to wax eloquent. Instead, it deals in extremes and often argues against all free-speech fetters.

This has unfortunately come to mean that while, on paper, speech is almost unarguably over-regulated by law, the specifics of how to counter over-regulation have remained largely unaddressed. And, in practice, speech that offends the privileged can almost always be immediately assailed through the law thanks to there being a deluge of often-vague legal provisions governing the field. At the same time, those without privilege may have difficulty both protecting themselves from the speech of others and exercising the right to free speech themselves.

There are a number of valid concerns at stake such as why defamation should be a criminal offence and not just a civil wrong, or why sedition should be an offence at all. However, where public discourse deals with specific issues, the choice of issues has tended to be guided by patriarchal philanthro-capitalism that is kindest to those who do not impede business interests or thwart patriarchy.

We are concerned about the rights of those who speak and those who receive information. However, we are not quite as concerned about the rights of those who are spoken of possibly without their consent particularly if they are not privileged or if they are social non-conformists.

The issue of consent is, of course, fraught. Publishing a biography, for example, does not ordinarily require its author to preemptively obtain the consent of the person spoken about. The subject of the biography may, however, invoke the law against the author and publisher depending on what is said. That said, there are also times when consent is essential: as a general rule, one cannot unilaterally decide to publish the name of a woman who has been raped.

It is in relation to violence against women that fissures in free speech discourse which ostensibly promotes egalitarianism are most clearly visible. The pivot of the law dealing with explicit content, for example, is obscenity and the possible effects of content on public morality. Consequently, pornography is barely seen as a labour rights issue.

The rights of women who feature in explicit content are rarely considered unless they can establish that they have not flouted patriarchal expectations of ‘good’ women. Both corporate and state mechanisms are being put into place to counter filmed rape and so-called ‘revenge’ porn. At least one SocMed site has, rather controversially, reportedly suggested that women who feature in revenge porn send it nudes in order to have explicit content taken down while the government has reportedly put into place plans to start an online service to counter non-consensual porn. Both of these are important initiatives although it’s difficult not to notice that their beneficiaries will likely not extend to women who seemingly consent to being featured in explicit content.

Beyond invoking obscenity law, women who are unable to establish that they are not somehow ‘at fault’ when they feature in what’s passed off as pornography have little in the way of effective formal recourse. This is unsurprising with porn being big business and the state’s focus, in such cases, seeming to be on public morality.

It is expectations sown by patriarchy which fuel public discourse and ultimately inform the law. They magnify certain voices, suppress others, and create what are often unconscionable and stark disparities in how people are treated depending on their being arbiters of power in a patriarchal set up or, at least, having conformed to patriarchal mandates. Ultimately, having a voice that is heard is still little beyond a mark of privilege. So far, caught in a Catch 22 situation, we have failed to contour the law to ensure that the paradigm is changed and that the right free speech helps pave the way to a more egalitarian society.

Nandita Saikia

Nandita Saikia is a New Delhi-based lawyer.