As Karthik, one of our readers, points out in a comment, V.R.Krishna Iyer's latest piece in The Hindu is quite hilarious. I would urge all our readers not to miss reading it. Taking the advice of our readers, I will however not waste any space commenting on his exhortations to our 'clean, green, simple and straight' prime minister (just a thought: would the advice have been different had he been 'red, complex and queer'?).
The Hindu repeatedly mentions paragraphs from the judgment in Ore Oru Gramathile in every freedom-of-speech case. Today's editorial is at least the second in a row where it quotes from that opinion.
While court orders in specific cases illustrate what cannot be considered objectionable, the Supreme Court in the case relating to the film Ore Oru Gramathile had adopted a broad standard that “the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.” The permissive legal culture that provides any bigot a forum to turn perfectly acceptable speech or expression into a crime and harass writers and creative artistes is clearly in need of an attitudinal, if not structural, overhaul.
In a previous editorial last year, it quoted some lines similarly:
It is really up to the higher judiciary to ensure that the Indian criminal justice system does not continue to be abused in a way that can make it the laughing-stock of the world. The reference point for all such cases is what the Supreme Court of India elaborated in its landmark free speech judgment on the film Ore Oru Gramathile (S. Rangarajan vs. P. Jagjivan Ram & Ors., 1989). The court held that the yardstick for judging whether anything was inflammatory or, by extension, obscene, was the perception of an ordinary person "with common sense and prudence and not that of an out of the ordinary or hypersensitive" individual. Litigants who feel the urge to rush to court because of a send-up kiss or an actress's mode of dress or a historical biography are precisely the kind of "hypersensitive" individuals the Supreme Court had in mind. Such cases must be given short shrift with deterrent penalties imposed on the mischief-makers.
The paper simply overrates this judgment. There are two parts to this problem. One is that under the current system, anyone can file a case anywhere in the country to bring the speaker/writer/artist to justice - this pretty much amounts to allowing every citizen in the country the right to act as public prosecutor. Is it any surprise then that the number of frivolous cases that are filed is simply too many? The answer is simple: when a threat to the public order is involved, the right to file charges should rest solely with the government which alone is empowered to act on behalf society, not anyone looking for some cheap publicity and with too much time on their hands.The second is that when suits are filed, the local magistrate should first go through the petition carefully and decide whether a reasonable case is made out in the first place before issuing a notice to the other party. It may take a bit more time and effort in the beginning but it will save a lot more of both not only to the court but also to the alleged offender if the trial can be precluded in the first place. That of course requires the case law to provide clear guidance to the lower courts which brings me to the third point.
For that, we need are clear standards to know exactly what does and does not constitute a breach of the public order. In the case of section 153(A) of the IPC, it is true that the baseline is quite clear but the broader point still holds - the higher judiciary has an obligation to lay down clear red lines that are universally applicable, not nuanced, case-specific opinions that are so context-dependant as to render their formulations impertinent in a slightly altered situation. What the court can clarify as a general rule, it must do so. What it cannot as with matters relating to particular facts/tastes, it should leave them to be decided by the lower courts based on contemporary social standards much like the US Supreme Court has done.
The Hindu's analysis is wrong on every count here. This so-called yardstick to decide what is inflammatory is supposed to be based on the perception of an 'ordinary person with common sense and prudence and not that of an out of the ordinary or hypersensitive person'. Again, it says 'the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view' (ibid.).
Firstly, this is not a yardstick or standard at all, simply a statement of the court's sentiments. To be considered a standard, it should lay down an objective method of assessing whether the speech/expression in question falls on a particular side of the law that is clear enough to apply and holds a reasonable prospect of a consistent outcome. Fine statements such as the 'perception of an ordinary person', 'strong-minded' etc. will not count for they raise more questions than they answer: who is an ordinary person? The conservative farmer from the countryside? A professional engineer or doctor? An artist? A singer in a night club? A priest at a temple? Which of these is to be considered strong/weak-minded? All of them are equally ordinary and very much part of the same society and yet, their own individual and professional inclinations may lead them to hold very different views on what is permissible or offensive.
Secondly, there is no trial by jury in India where those who are 'out of the ordinary' or 'hypersensitive' can be excluded at the pretrial stage. The only perception that matters is that of the presiding judge who surely will not consider himself/herself 'out of the ordinary' or 'hypersensitive' or his own standard to be that of an unreasonable, weak-minded or vacillating mind. It is the problem of the writer/artist if it so happens that he/she happens by temperament to be conservative or 'hypersensitive' in the court's words. Such exhortations are unimplementable and therefore quite useless.
The answer therefore is fewer cases, better standards and a more thoughtful approach by lower-court judges (which could also translate into better judges). For the most part, these require a structural overhaul, not attitudinal change as the paper wrongly prescribes.
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