The law is an ass, wrote Charles Dickens. Thank god, we have judiciary to tame it
Shishir Tripathi | March 24, 2015
Our prime minister was inspired by Benjamin Franklin as a young man. While sharing his thoughts on the Republic Day, along with American president Barack Obama in his fortnightly radio address, Mann ki Baat, prime minister Narendra Modi said what inspired him about the life of the American statesman was “how a person can intelligently try to change his life”.
Well, it is indeed an inspiring quality. But Franklin is more famous for his unflinching faith in freedom of speech. In one of his writings, Franklin said, “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”
One cannot be certain that the prime minister was aware of Franklin’s views on freedom of speech, but surely, if he would have not waited for the judiciary to finally rescue our ‘freedom of speech and expression’ on March 24, he would be known as the true admirer of the great American statesman. Modi, however, failed to act first on section 66A of the Information Technology Act.
The greatness of our democracy, however, lies in our judiciary often succeeding in restoring the dwindling faith of citizens in the state.
Striking down the draconian provision in the IT law that allowed police to arrest people for posting “offensive content” on the internet, the apex court judgment differentiated between ‘discussion, advocacy and incitement’. “Mere discussion or even advocacy of a particular cause, howsoever unpopular, is at heart of article 19) (1) (a) (all citizens shall have the right to freedom of speech and expression), said the judgment. It went on to add, “Only when such discussion or advocacy reaches the level of incitement that article 19 (2) [it allows the state to make laws imposing reasonable restriction of freedom of speech and expression] kicks in.”
Discussing the difference between the three – discussion, advocacy and incitement – the apex court said at this stage, law for curtailing freedom of speech to ensure law and order could be made.
The first PIL in the case was filed by law student Shreya Singhal after two girls, Shaheen Dhada and Rinu Shrinivasan of Palghar in Thane district near Mumbai, were arrested in 2012. There crime? They had expressed resentment against the shutdown of Mumbai following the death of Shiv Sena leader Bal Thackeray. While one wrote the Facebook post, the other had ‘liked’ it.
Whether what they did could be called ‘incitement’ needs little discussion. Two youngsters expressing their feelings against something what they thought to be unfair could be hardly termed as “incitement” by anyone, barring those hell-bent on crushing any differences of opinion.
The Supreme Court said that the said section also failed two major tests – “the clear and present danger” test and the “tendency to create public disorder” test. The court observed, “In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.”
The provisions have been clearly misused by the authorities in the Thane girl’s case. There was nothing in the statement that could have indicated the probability of “immediate serious violence” nor did they have a ‘mischievous’ past that could have propelled the police to take action against them.
As the apex court pronounced the judgment, one was reminded of Mr Bumble from Charles Dickens’ Oliver Twist. “The law is an ass,” he said.
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