Narasimhan Vijayaraghavan Prologue For one who has indulged in Constitution and its Making- Musings,Anecdotes and Episodes,OakBridge,2020 and Constitution and its Working- Musings, Anecdotes and

 

 

Musings on Right to Free Speech & Privacy

Narasimhan Vijayaraghavan

Prologue

 

For one who has indulged in Constitution and its Making- Musings,Anecdotes and Episodes,OakBridge,2020 and Constitution and its Working- Musings, Anecdotes and Episodes,2021, OakBridge,the thrall to indulge, is now real. One has got hooked to the mother of all laws. Constitution constitutes the nation,  as Nani Palkhivala famously said.

 

Our Founders lovingly framed it for us. It was not for  the three hundred million of us-We the People- as on 26th Nov,1949, the day the Constitution of India was adopted by our Constituent Assembly or on 26th Jan,1950, India became a Republic.

 

Constitution was and is meant to be forever. We are 130 billion strong now and the prognosis is, we may trump China as the most populous nation by 2040. ‘To cater to and serve such a large populace,  we needed a large document’ as Justice V R Krishna Iyer. ‘Size matters in law too’  said Justice Antonin Scalia, in a different context.

 

Our Constitution had 395 Articles and seven schedules and by far, the longest in the world. The US Constitution adopted on Sept 17,1787 had but Seven Articles and 25 amendments till date. We have had 104 amendments already and counting.

 

It was not difficult to identify a title to construct. Free Speech is free. It comes for free. It comes with Free Expression too. And there is an umbilical connect for us with Right to Privacy. The Pandemic has been a curse in multiple ways,  across the world. ‘The Health Emergency has skewed the civil rights of people and the tragedy is that we have yielded to  it without even a mock fight’, said Lord Jonathan Sumption.

 

The Covid19 broke out in Wuhan,China. Notwithstanding the efforts of World Health Organisation and an Experts Committee formed by them, ‘we are still groping for the origins of the pathogen, as zoonotic or from a lab leak’. China, of course, swears,  it was a natural phenomenon. Theories abound on differing and different versions.

 

Research is science based. It is backed by proof, evidence and data. But man has not caught hold of these virus variants fully yet. Research is ongoing. Differences in opinion are real and many. Yet, as the origin is in Wuhan,China, ‘lack of freedom of speech and expression and a totalitarian regime are huge detracting factors’ wrote a commentator. The visit of the experts to Wuhan did not see the Chinese authorities ‘opening up’. Rather ‘closing down’. Chinese media access is opaque. The regime is repressive and unyielding and what the State says stays.

 

Free speech matters for lives to be meaningful. The US and Indian founding fathers ( ours had 15 mothers too, while US had none) lay store by free speech as THE soul of the constitution. They regarded and respected our Right to Privacy. At times, it was equated  to right to life and liberty.

 

“Man is born free but everywhere is in chains.” This quote made the Geneva-born political philosopher, Jean-Jacques Rousseau, world famous.One harks back to French Revolution, Renaissance and the age of the Romantics, to appreciate how valuable this free speech freedom is. Voltaire said, “Only in its absence,  I knew what freedom of speech meant to man”.

 

It does not require this author to eulogise or elevate the value of free speech and right to privacy . Better qualified have done it before. Times are such,  print, electronic media are being literally overwhelmed by social media platform. Anthony Blinken, the US Secretary of State, came to India with ‘express concerns over free speech’.

 

Pegasus spyware, belonging  to the private enterprise NSO group ( Niv,Shalev and Omri, formed out of the names of the founders), Israel, is big news. Parliament has been stalled. There is huge ruckus with megaphones,  in our drawing rooms. It is on Digital Surveillance. Invasion of our fundamental Right to Privacy. It is relatable to right to free speech and expression too. It cannot  get bigger than this.

 

Prof. Shoshana Zuboff, retired Havard Professor, author of Surveillance Capitalism’, said, ‘ If you have nothing to hide, you have nothing’. ‘Right to Privacy is now a myth as brutally exposed by Zuboff. What free speech are you talking of, if all your speech is under Big Brother’s watch. All willingly and stupidly yielded  to, by us to social media platforms’, wrote a critic of the work. Assange  of Wikileaks and Snowden were startups with baby steps, compared  to what Jeff Bezos, Mark Zuckerberg and Jack Dorsey, have enshrined and invaded.

 

Add the recent potion of three separate benches of the Supreme Court of India,including the one presided over by Chief Justice of India, alluding  to repeated and repetitive charges  of sedition being inflicted by state. On 15th July,2021, Chief Justice of India N V Ramana said, “This dispute about law is concerned, its colonial law, it was meant to suppress the freedom movement, the same law was used by British to silence Mahatma Gandhi, Tilak etc. Still is it necessary after 75 years of Independence? The enormous power of this section can be compared to a carpenter being given a saw to make an item, [and who] uses it to cut the entire forest instead of a tree. That’s the effect of this provision,”.

 

Add the strange and bizarre spectacle of Sec.66-A of Information & Technology Act , which has been consigned to the dustbin of Constitutional history in Shreya Singhal case, still being tapped into. Justice R F Nariman on July 5,2021, came down heavily on the Union government over people still being booked under Section 66A of the Information Technology Act, calling it “amazing and shocking.” In March 2015, Section 66A was struck down by the top court. which led the Central Government to send a communique to forthwith stop the prosecution on dead as dodo provision and withdraw such efforts already made. “Don’t you think this is amazing and shocking? Shreya Singhal judgment is of 2015. It’s really shocking. What is going on is terrible,” a bench, comprising Supreme Court Justice RF Nariman, Justice KM Joseph and Justice BR Gavai wondered.

 

We live in strange times. Fake News is real. Post Truth is now in our lexicon, as the  not so new kid on the block. Even  in the US, the land of the free and absolute freedom of speech under their First Amendment, you have the spectacle of ‘cancel culture’ on both right and left spectrums, of the visceral divide. Social Media platforms are under extraordinary pressure to pull down Fake News and bigoted/racist  hate speech. The Anti Vaxers who had a field day, are now facing the rough end of the stick,as mutations of the pathogen are rising their ugly and raging heads. ‘Delta  Variant’  they say, it is now. But, warn there could be even more mutations, as nature and virus were ‘dribbling and dodging  to trick the vaccines’.

 

The entire scenario is now premised and founded on free speech and privacy rights. The protagonists and antagonists, both, are ranged against one another, having their day under the Sun.We the People are caught in the middle or muddle. Freedom of Speech and Expression and Right to Privacy  are sacrosanct. If in the US of A itself,  there are ‘huge concerns over licentiousness as free speech and Right to Privacy is only for Gods’, as a  US Senator gapes, where do we stand with our ‘reasonable restrictions’ .

 

Our forefathers were guarded and cautious. Only 15% of India was literate. Two thirds  of India was below poverty line. Caste divisions were rampant. Women were oppressed. Even while our founders embraced Adult Suffrage from day one,  we turned a republic, they did not go for absolute freedom of speech or right to privacy, as a fundamental right . It  took a century or more for US ( 18.08.1920), UK  (21.11.1918) and Switzerland (06.02.1971) )  to give women the right to vote. Yet, on free speech and right to privacy , we imposed ‘reasonable restrictions’. These are human stories. They are not meant to be academic papers of esoteric variant.

 

This is not a dissertation on free speech or right to privacy . To make it interesting, it is a book full of stories. On the cases that reached our Supreme Court and of course the US and UK . The landmark decisions, as we christen them. There could be distinction between great and landmark. Those that were epochal and stood out. Those that changed the trajectory or proved to be a shining beacon,  over the decades and lasted .But the key to this work is, the story telling. Principles laid down matter. But, the stories matter more.

 

Of course, we cannot begin without dipping into what our founders had debated on freedom of speech and expression and right to privacy . While some members wanted ‘free to be as free as it could be’ most members exercised and expressed caution. They wanted us to be aware of our societal and  cultural moorings and ethos. “Our founders were in public life. They  paid a huge price as ‘free speechers’. They knew its value. Their  lives were open books.They never sought Right to Privacy, for themselves, for their privacy was  in public. But, they  surely valued ours,”said Justice Krishna Iyer . That could be the beginning of our story.

 

Once upon a time….