‘The artist is entitled to the fullest liberty...to critique’: DY Chandrachud on free expression

Commitment to free speech involves protecting speech that is palatable as well as speech that we do not want to hear. A declaration attributed to Voltaire: “I despise what you say but will defend to the death your right to say it” encapsulates the essence of the protection of free speech.

Protection of the freedom of speech is founded on the belief that speech is worth defending even when certain individuals may not agree with or even despise what is being spoken. This principle is at the heart of democracy, a basic human right, and its protection is a mark of a civilised and tolerant society.

The reasons to defend free speech are both moral and instrumental. Moral arguments for the defence of free speech range from a conception of what it is to be a person, to the idea that curtailments of speech and expression are an infringement of an individual’s autonomy or dignity – either as a speaker or a listener, or both.

These arguments are based on the intrinsic value of free speech for human beings rather than the measurable consequences that might flow from preserving it. The instrumental argument on the other hand is based on the notion that preserving free speech produces tangible benefits, whether in terms of increased personal happiness, a flourishing society, or even economic benefits.

John Stuart Mill, one of the most influential philosophers and intellectuals of the nineteenth century, presented one of the first and perhaps what is still the most famous liberal defence of free speech. His classical book On Liberty continues to dominate philosophical debate about free speech:

“Mill defends the view that extensive freedom of speech is a precondition not just for individual happiness, but for a flourishing society. Without free expression, humankind may be robbed of ideas that would otherwise have contributed to its development. Preserving freedom of speech maximises the chance of truth emerging from its collision with error and half-truth. It also reinvigorates the beliefs of those who would otherwise be at risk of holding views as dead dogma.”

— "Free Speech: A Very Short Introduction", Nigel Warburton

This powerful defence of freedom of speech however is also accompanied by a limitation on free expression, commonly referred to as the “harm principle”, which states that “the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”

While the application of the liberal principles developed by Mill extends to several spheres, the sphere of free speech and expression was regarded to be particularly important to him due to its connection with truth and development. He emphasises the value of free speech in the following words:

“Were an opinion a personal possession of no value except to the owner, if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is that it is robbing the human race—those who dissent from the opinion still more than those who hold it.” 

Ronald Dworkin argued that a government without extensive freedom of speech would lack legitimacy and should therefore not be called ‘“democratic”:

“Free speech is a condition of legitimate government. Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be.”

Dworkin conceptualises democracy not just as a formalised structure for decision-making but as a constitutional concept that allows the participation of all individuals, including minorities with potentially unconventional views. This notion of democracy is inconsistent with the idea of the state which restricts access to public debate, as such restrictions would fetter the understanding of democracy as a continuous process that can be shaped by all in society.

Satire is a literary genre where “topical issues” are “held up to scorn by means of ridicule or irony.” It is one of the most effective art forms revealing the absurdities, hypocrisies and contradictions in so much of life. It has the unique ability to quickly and clearly make a point and facilitate understanding in ways that other forms of communication and expression often do not.

However, we cannot ignore that like all forms of speech and expression, satirical expression may be restricted in accordance with the restrictions envisaged under Article 19(2) of the Constitution. For example, when satire targets society’s marginalised, it can have the power to confirm and strengthen people’s prejudices against the group in question, which only marginalises and disenfranchises them more.

On 9 April 1980, James Baldwin engaged in a conversation with Chinua Achebe (Conversations with James Baldwin, edited by Fred Stanley and Louis H Pratt). Achebe posits that art has an abiding connect with society:

“Art has a social purpose [and] art belongs to the people. It’s not something that is hanging out there that has no connection with the needs of man. And art is unashamedly, unembarrassingly, if there is such a word, social. It is political; it is economic. The total life of man is reflected in his art.”

Albert Camus in his essays titled Resistance, Rebellion and Death makes a profound statement of the connect between art and freedom:

“Art, by virtue of that free essence I have tried to define, unites whereas tyranny separates. It is not surprising, therefore, that art should be the enemy marked out by every form of oppression. It is not surprising that artists and intellectuals should have been the first victims of modern tyrannies...Tyrants know there is in the work of art an emancipatory force, which is mysterious only to those who do not revere it. Every great work makes the human face more admirable and richer, and this is its whole secret. And thousands of concentration camps and barred cells are not enough to hide this staggering testimony of dignity. This is why it is not true that culture can be, even temporarily, suspended in order to make way for a new culture...There is no culture without legacy...Whatever the works of the future may be, they will bear the same secret, made up of courage and freedom, nourished by the daring of thousands of artists of all times and all nations.”

Simone De Beauvoir tells us how every artist, situated in the present uses her connect with reality to transcend social existence:

“In order for the artist to have a world to express he must first be situated in this world, oppressed or oppressing, resigned or rebellious, a man among men. But at the heart of his existence he finds the exigence which is common to all men; he must first will freedom within himself and universally; he must try to conquer it: in the light of this project situations are graded and reasons for acting are made manifest.”

The danger which this case exemplifies is the peril of subjecting the freedom of speech and expression of the citizen to actions which are not contemplated by the statute and lie beyond the lawful exercise of public power.

All exercises of authority in pursuance of enabling statutory provisions are amenable to statutory remedies and are subject to judicial oversight under a regime of constitutional remedies. The exercise of statutory authority is not uncontrolled in a regime based on the rule of law.

But what do citizens who have a legitimate right to exhibit a film confront when they are told that a film which is duly certified and slated for release is unceremoniously pulled off the exhibiting theatres without the authority of law? Such attempts are insidious and pose a grave danger to personal liberty and to free speech and expression. They are insidious because they are not backed by the authority of law. They pose grave dangers to free speech because the citizen is left in the lurch without being informed of the causes or the basis of the action. This has the immediate effect of silencing speech and the expression of opinion.

Contemporary events reveal that there is a growing intolerance: intolerance which is unaccepting of the rights of others in society to freely espouse their views and to portray them in print, in the theatre or in the celluloid media. Organised groups and interests pose a serious danger to the existence of the right to free speech and expression. If the right of the playwright, artist, musician or actor were to be subjected to popular notions of what is or is not acceptable, the right itself and its guarantee under the Constitution would be rendered illusory.

The true purpose of art, as manifest in its myriad forms, is to question and provoke. Art in an elemental sense reflects a human urge to question the assumptions on which societal values may be founded. In questioning prevailing social values and popular cultures, every art form seeks to espouse a vision.

Underlying the vision of the artist is a desire to find a new meaning for existence. The artist, in an effort to do so, is entitled to the fullest liberty and freedom to critique and criticise. Satire and irony are willing allies of the quest to entertain while at the same time to lead to self-reflection.

We find in the foibles of others an image of our own lives. Our experiences provide meaning to our existence. Art is as much for the mainstream as it is for the margins. The Constitution protects the ability of every individual citizen to believe as much as to communicate, to conceptualize as much as to share. Public power must be conscious of the fact that ours is a democracy simply because the Constitution recognises the inalienable freedoms of every citizen.

Power has been entrusted to the state by the people under a written Constitution. The state holds it in trust and its exercise is accountable to the people. The state does not entrust freedoms to the people: the freedoms which the Constitution recognises are inseparable from our existence as human beings. Freedom is the defining feature of human existence. Freedoms are not subject to power.

Public power is assigned by the people to government. Ours is a controlled Constitution, a Constitution which recognises the fullest element of liberty and freedom and of the answerability of power to freedom. The views of the writer of a play, the metre of a poet or the sketches of a cartoonist may not be palatable to those who are criticised.

Those who disagree have a simple expedient: of not watching a film, not turning the pages of the book or not hearing what is not music to their ears. The Constitution does not permit those in authority who disagree to crush the freedom of others to believe, think and express. The ability to communicate “ideas” is a legitimate area of human endeavour and is not controlled by the acceptability of the views to those to whom they are addressed.

When the ability to portray art in any form is subject to extra constitutional authority, there is a grave danger that fundamental human freedoms will be imperilled by a cloud of opacity and arbitrary state behaviour.

Excerpted from the judgment by Dr Dhananjaya Y Chandrachud, J in the Supreme Court Of India, in the Writ Petition (Civil) No 306 of 2019, Indibility Creative Pvt Ltd & Ors (Petitioners) versus Govt of West Bengal & Ors (Respondents), April 11, 2019.