The compelling compromise
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The filing of FIRs across the country, the public defence and spirited condemnation, the extensive discussions across all media have, now that the Supreme Court has given its interim ruling on Ashis Nandy's case, come to acquire a secondary status in our universe of concern. The SC's ruling has displaced this everyday politics of word and deed and acquired a primary status because it has a bearing on the foundational issues of our republic, that of freedom of expression and its limits, of hurt and offence, of decency and humiliation. The court's ruling draws attention to the fact that in a world where ends collide, a fair balance must be struck between the goal of protecting liberty and the need to constrain it. The court's interim decision has set the moral standard for free speech in our society today. By both staying his arrest and reprimanding him, the court has effected a compelling compromise.
To the question from Nandy's lawyer on whether the law could penalise an idea, the chief justice responded, "Why not? When an idea is not in the public interest, he can be. Whatever your intent, you can't go on making statements. Tell your client he has no licence to make such comments. Every person has his own idea, but it should not disturb others. Statements are to be made in a responsible manner." With this, the threat of Nandy's imminent arrest passed, leaving many of us visibly relieved. Here, I want to examine the basis of this feeling of relief. Why were we so relieved? Was it because our maverick intellectual was not arrested? Was it because an ugly situation had been averted? Or was it because the SC gave a little bit of victory to both sides?
The three fundamental issues that arise here are: one, the limits of the freedom of expression; two, the constitutional procedures that must be employed to impose such limits; and three, the nature of the compelling compromise. Much has been written on the first issue and the court's comments give us grounds to discuss it further. When we subject the court's own comments ("an idea not in the public interest", "no licence to make such comments", "idea should not disturb others", "made in a responsible manner"), to the standards recommended by it, we discover how difficult it is to determine what is in the "public interest", what will not "disturb others", and what constitutes a "responsible manner". For example, is the public interest defined in terms of what is in the interest of society today or what is in its interest tomorrow, or is it that which is articulated by the dominant classes or by the subaltern classes, as society moves towards greater freedom? Similarly, we would find ourselves troubled by the question, how much "disturbing" is good and how much is pernicious for society? A cursory glance at history would show us that in domains ranging from the creative arts to the anti-colonial struggles, some degree of disturbance has been good for society. We need more dispassionate discussions of these issues. There has been too much thunder so far.