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Chitranjan Sawant (Nil)     20 November 2012

Freedom of expression and public interest

AUM

  SHAHEEN AND RINI POST ON FACEBOOK, INVITE TROUBLE

                 By Brigadier Chitranjan Sawant,VSM

Mumbai, Greater Mumbai, Thane and the entire state of Maharashtra is in a state of mourning over the loss of a son of the soil, Balasaheb Thakre. The great Maratha was cremated in the Shivaji Park on Sunday, 18th Nov 12 with State honours. Twenty Lakh Mumbaikars participated in the Antim Sanskar of their beloved leader who had all along championed the cause of sons of the soil. Entire metropolis was shut, even neighbouring Thane went without business.

Before embers of the funeral pyre could die down two 21-year old girls and close bosom friends, Shaheen and Rina posted their views on the Facebook that ran against the prevailing somber mood and ethos of the hour. Mature in age but immature in thought Shaheen arrogantly questioned the sagacity of downing shutters of business on the demise of a man who was no great shake. Balasaheb, whose funeral was attended by two million Mumbaikars and who was venerated by Shiv Sainiks as their Senapati and others as a champion of the downtrodden Marathi Manoos, was dismissed by two immature 21-year old bosom friends in a jiffy who perhaps  merited no special veneration in life or in death.

The city already on emotional tenterhooks felt mortally offended and the aggressive among them at Thane bayed for blood. Before one could say Jack Robinson, a n angry crowd of Shiv Sainiks and others was knocking at the police doors in Thane pressurizing them to arrest the girls who had insulted a Maharashtrian icon and bring them to trial under relevant provisions of law. The hurt feelings of the Shiv Sainiks and others were legally aided by lawyers who knew the law and its procedure. The FIR mentioned the sections of the Indian Penal Code and the IT Act 2001 as amended in 2008 and made stringent.

The hurt feelings of the Shiv Sainiks and the surrounding facts made the agitating crowd more emotional and they pressed hard for immediate action against the erring girls. Reading between the lines, one may surmise that possibly the home environment, the apathy  relatives of girls to what Balasaheb was fighting for, cumulatively went to make them of a different frame of mind that prompted them to write on the Facebook what perhaps indicated mens rea of the adult girls to behave like juvenile delinquents.

When sober people around made the girls see reason and realize that their action bordered sacrelige, they not only withdrew their public statement on the net but also tendered an apology. They are now out on bail. The storm raised by their action for which they were initially unapologetic but changed track seeing the gravity of their offence, is yet to subside. When the main actors have withdrawn to wings or gone behind the stage, other trouble makers have seized the reins and come on the Centre Stage to gain press publicity. Let us leave them where they are and the smouldering embers are sure to die down.

FREEDOM OF SPEECH

Let us take a look at the legal angle of the case and the Constitutional validity of our right to exercise Freedom of Thought and Expression. It would be a good idea to fall back on the constitutional provisions regarding freedom of Thought and Expression. Broadly speaking, article 19 of our Constitution covers this right. Let us quote it:

 
 

( THE EXPOSITION GIVEN BELOW IS QUOTED FROM THE RELEVANT paper WRITTEN BY Surabhi Singhi of Jodhpur and adopted with thanks)

Speech is God's gift to mankind. Through speech a human being conveys his thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural right, which a human being acquires on birth. It is, therefore, a basic right. "Everyone has the right to freedom of opinion and expression; the right includes freedom to hold opinions without interference and to seek and receive and impart information and ideas through any media and regardless of frontiers" proclaims the Universal Declaration Of Human Rights (1948). The people of India declared in the Preamble of the Constitution, which they gave unto themselves their resolve to secure to all the citizens liberty of thought and expression. This resolve is reflected in Article 19(1)(a) which is one of the Articles found in Part III of the Constitution, which enumerates the Fundamental Rights.

Man as rational being desires to do many things, but in a civil society his desires have to be controlled, regulated and reconciled with the exercise of similar desires by other individuals. The guarantee of each of the above right is, therefore, restricted by the Constitution in the larger interest of the community. The right to freedom of speech and expression is subject to limitations imposed under Article 19(2).

Public order as a ground of imposing restrictions was added by the Constitution (First Amendment) Act, 1951. Public order is something more than ordinary maintenance of law and order. Public order in the present context is synonymous with public peace, safety and tranquility.

 

Meaning And Scope

Article 19(1)(a) of Indian Constitution says that all citizens have the right to freedom of speech and expression. Freedom of Speech and expression means the right to express one's own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of one's idea through any communicable medium or visible representation, such as gesture, signs, and the like. This expression connotes also publication and thus the freedom of press is included in this category. Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. This propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value. The freedom of speech and expression includes liberty to propagate not one's views only. It also includes the right to propagate or publish the views of other people; otherwise this freedom would not include the freedom of press.
Freedom of expression has four broad special purposes to serve:
1) It helps an individual to attain self-fulfillment.
2) It assists in the discovery of truth.
3) It strengthens the capacity of an individual in participating in decision-making.
4) It provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.
5) All members of society would be able to form their own beliefs and communicate them freely to others.

In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive generous support from all those who believe in the participation of people in the administration. It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on matters of concerning newspaper industry than while levying taxes on other matters.

Explaining the scope of freedom of speech and expression Supreme Court has said that the words "freedom of speech and expression" must be broadly constructed to include the freedom to circulate one's views by words of mouth or in writing or through audiovisual instrumentalities. It therefore includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this country therefore has the right to air his or their views through the printing and or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution.

Freedom to air one's view is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship. The modern communication mediums advance public interest by informing the public of the events and development that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any setup more so in a democratic setup like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution.

The various communication channels are great purveyors of news and views and make considerable impact on the minds of readers and viewers and our known to mould public opinion on vitals issues of national importance. The freedom of speech and expression includes freedom of circulation and propagation of ideas and therefore the right extends to the citizen to use the media to answer the criticism leveled against the views propagated by him. Every free citizen has undoubted right to lay what sentiments he pleases. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest.

I would like to reiterate that the Constitutional freedom that we are discussing is to be exercised with great caution and care must be taken not to jeopardize public interest. Thus the Public Interest will take precedence over private interest. It may be seen that Shaheen and her friend transgressed over the tender feelings of a vast majority of Mumbaikars. It will be for the court of law to see whether the Police did the right thing by booking the girls under section 295A IPC.

IT ACT INVOKED

The Police has also invoked section 66A of the Information Technology Act, as amended, and charged the two girls accordingly. Let us take a look at the relevant law:

 

 

 

 

*[ 66A. Punishment for sending offensive messages through communication service, etc..- Any person who sends, by means of a computer resource or a communication device,-

(a) any information that is grossly offensive or has menacing character; or

(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently makes by making use of such computer resource or a communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages

shall be punishable with imprisonment for a term which may extend to tthree years and with fine.


Explanation: For the purposes of this section, terms "Electronic mail" and "Electronic Mail Message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, image, audio, video and any other electronic record, which may be transmitted with the message.


[* Inserted vide Information Technology Amendment Act, 2008]

The law is relevant to the commission of offence by the two 21-year old girls who are no juveniles. They are full grown adults from all angles and understand the import of their act or omission. Had they been teenagers, the govt would have possibly thought twice before charging them under section 66A, IT Act. Our discussion at this stage is merely academic. It is the Court of Law that would take the final view on commission of an offence under the legal provision quoted in this paragraph.

To sum up, one may say that extraneous considerations like religious background, respect or hatred for the dead and departed and arrogance of monetary power of Shaheen went a long way in landing her and her friend in legal trouble.

______________________________________________________________________________Email : sawantg.chitranjan@gmail.com            Mob.   9811173590.__

 

 

 



 2 Replies

Democratic Indian (n/a)     21 November 2012

Originally posted by : Chitranjan Sawant
Freedom to air one's view is the lifeline of any democratic institution and any attempt to stifle, suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship.

This is exactly why the Freedom and Liberty of Shaheen and Rina to express their views must be respected. Otherwise the nation will be moving towards autocracy or dictatorship or a police State. In this context it would be prudent to read and respect the views of Justice Katju discussed in this thread https://www.lawyersclubindia.com/forum/Letter-by-justice-katju-to-maharashtra-cm-70147.asp

Originally posted by : Chitranjan Sawant
I would like to reiterate that the Constitutional freedom that we are discussing is to be exercised with great caution and care must be taken not to jeopardize public interest. Thus the Public Interest will take precedence over private interest.

We must be beware of those who use "public interest" or "national interest" as an excuse to suppress individual freedoms and liberties. A detailed discussion about the misuse of the so called "public" or "national" interest has been mentioned in the following thread https://www.lawyersclubindia.com/forum/Beware-of-those-who-speak-of-8216-national-interest-8217--67518.asp

MPS RAMANI (Scientist/Engineer)     25 November 2012

 

The boasts of heraldry, the pomp of pow’r,

And all that beauty, all that wealth e’er gave,

Await alike th’ inevitable hour

The paths of glory all but lead to the grave

Thomas Gray

Shaheen said this only, but in very simple words. She did not even utter the name “Bal Thackeray” and far less she did not say whether she respected Thackeray or not. The other girl just said that she liked what Shaheen said. And what a fury?  The young girls were dragged to the police station. The girls were well educated and only, like many others, aspiring for professional qualifications. They were neither criminals nor street rowdies. Naturally they were terrified and apologized out of fear and not out of conviction. Earlier on that Sunday they did not venture out of their house only because of fear of the rowdies around.

The girls may be of the age of the granddaughter of Mr.Chitranjan Sawant, if he had one. But still he would not spare them. He says they are mature in age (just 3 years older than the legal age for majority) but immature in thought. What a person Bal Thackeray has got as his follower in Mr. Sawant?  Bal Thackeray was loved by millions. Hardened criminals get elected to the Parliament and State Assemblies, because millions vote for them. Should we all worship them? People sagaciously downed shutters. What sagacity? Most of them downed shutters out of fear.  

For the sake of argument let us assume that the girls were wrong. Even so was the treatment meted out to them in proportion to their “crime”. Even the most ardent devotee of Thackeray would not agree unless his intelligence is blinded by his devotion. There has been criticism of the magistrate also for non-application of mind.

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