A Sagacious Verdict on the Free Speech v. Hate Speech Debate from Justice Anand Venkatesh Narasimhan Vijayaraghavan   Justice Anand Venkatesh has delivered a classic.Extolling free speech and

A Sagacious Verdict on the Free Speech v. Hate Speech Debate from Justice Anand Venkatesh

Narasimhan Vijayaraghavan

Justice Anand Venkatesh has delivered a classic.Extolling free speech and suggesting it included hate speech would have been easy.The ‘liberals’ would have gone to town and made a darling of the learned judge. Learned judge respects, regards and reveres free speech. It is evident.

Equally, he is aware of India as a cultural and religious cauldron, where bigotry and scurrilous language being incendiary,had no place. The virtues of genuine secularism imbued with constitutional tolerance have been commended with scholarly excellence, rare in the annals of the hallowed judicial terrain.

Justice Anand Venkatesh could have gone either way, so easily. It may have been tempting to dismiss the challenge to the FiRs. The contents of the speech were nothing but pouring hate and venom. That the speaker chose to unconditionally apologise and the wise counsel of the senior advocate was taken, to file an affidavit to refrain from such transgressions, in future,are proof of the pudding.
The speech was meant to incite, provoke and spread divisiveness. It was anything but reflective of the highest traditions of the tenets of any religion. The petitioner needed to be cautioned, reined in, told off. But, at the same time,not allowing the FIRs to be taken to its logical end, made robust common, practical and legal sense. Imagine the prosecutions failing, as they often do in such instances, for want of evidence, on sheer efflux of time and dissipating energies. That would have meant the opposite end of the spectrum of the chilling effect this verdict may have lent to such offensive and abusive language.

Kudos to the learned Judge to beautifully balance the equations in use of the ‘ineffective power’ of the Hamiltonian judgment on paper hypothesis (as distinct from the sword of the legislature and the purse of the executive as in the Federalist Paper No.78).
Honestly, I read, re read and re read the verdict, with pride in my heart that I practised in the portals of the temple presided over by such legal wizards. More power to their pen or the fingers on the keyboard.

Let us be clear with one thing. We are the largest democracy. We are a proud one too. But for the brief blip during the Internal Emergency days in 1975-1977, we have enjoyed free speech as a fundamental right. No matter the ‘liberals’ may grieve and complain that the reasonable restrictions at play, were not so real or reasonable.

Be that as it may, we need to never forget that we are not an educated or evolved or well informed society, for the entire populace, to sift wheat and chaff from the fun, froth and vengeful.
We still fall prey for demagoguery and fiery pronouncements from political and religious platforms. The fringe is having its say with the silent majority having very little sway.

With TN assembly elections round the bend, and the umbilical proclivity of our politicians to see each other as enemies not opponents, and freely use spiteful and coarse lingo against each other, this verdict in Mohan C. Lazarus is timely. Hopefully, it has the requisite traction where it needs, and has a sobering influence on the political discourse, in these divisive electoral climes.

US of A is the oldest democracy. They have their First Amendment with no fetter on the exercise of free speech. There are decisions galore in the US of the likes of Robert J Curry v. Stanford University, R. A.V. v. City of St. Paul,Synder v. Phelps, eulogising ‘hate speech as an integral part of free speech’. But, in his Republic of Rhetoric (Penguin Random House,2017) Abhinav Chandrachud, from the famed Chandrachud lineage,points out that “ The US tends to be an outlier in the protection its Constitution grants to hate speech. All the world over, hate speech is substantially regulated. Even within the US, the Constitutional protection granted to hate speech is not without its detractors. Most recently, Jeremy Waldron, professor at the New York University School of Law, has written a book which launches an eloquent attack on hate speech doctrine in the US. In his book, The Harm in Hate Speech, Waldron points out that the free speech phrase which is most commonly attributed to Voltaire ( ‘I hate what you say, but I will defend to death your right to say it’), was never actually said by Voltaire at all. It was an English writer, Beatrice Hall, who had summarised Voltaire’s ideas by using this phrase.Voltaire, on the other hand, as Waldron says, would not have tolerated hate speech”. Need one quote any more.

Words have consequences. And those who grab a microphone, as if in Hyde’s Park, London, with or without an audience, and arouse primal passions among the gullible and believing need to be held back. And when it has religious under,middle and overtones, it has an inbuilt inflammatory intent and result. That is where comes in the beauty of Justice Anand Venkatesh’ verdict.
If he had quashed the petitions seeking to quash the FIRs, the court may have been accused of exhibiting ‘illiberal constructs alien to free speech doctrine’ as the late, lamented Justice Antonin Scalia would have put it. If the learned judge had obliterated the FIRs, the conservative may have yelled “Blasphemy, sacrilege and more’ as Lord Denning was once quoted. Justice Anand Venkatesh did neither.
The judge proved to be neither a true blue conservative nor a true blue liberal. He played one among us – We the People. Each of us is a mix of every hue. Some choose to wear it on their sleeves and most of us keep our religion in our homes and hearth, where it belongs and do not use free speech to freely spew hatred. Justice Anand Venkatesh has played a wise sage . That is where I come in to applaud.

The verdict in Mohan C. Lazarus dt. 5th Feb,2021 (https://www.livelaw.in/pdf_upload/madras-high-court-evangelist-mohan-lazarus-religion-388753.pdf) is a classic not because it gave thumbs up for free speech. Or because it played a spoilsport thereto, by calling the spade worse. The words impugned were crude, obscene and unbecoming, from any religious intonation. The learned judge must have squirmed while hearing them said or reading them in cold print or uttering them in dictation.
Yet, he held his constitutional balance to drive home a message like never before. The court deserves our standing ovation for not merely condemning the visceral hate in the language, but rising well above it, to allude to “ To err is human, forgive is divine’.

Trust and hope that the serial offenders, of whom we have many in our midst, in these social media climes, get the firm message tempered with mercy.

Here is my solemn salute to this law lord, if ever there was one,for and on behalf of the commoners from among us- We The People.

(Author is practising advocate in the Madras High Court)