By The late 18th-19th century saw the advent and rise of utilitarianism. The scholars responsible for this were, Jeremy Bentham and John Stuart Mill. The utilitarianism tradition states that all actions are right, provided, it effectively promotes the happiness of the people affected by the said act. In other words, “all’s well that ends well”. In this principle, the ends justified the means. It relates to both ethics and politics. The state’s main aim would be to promote and acquire the most happiness for its citizens.
According to article 19(1) of the Constitution of India, “freedom of speech and expression” has been listed as one of the fundamental rights. It is available to all citizens of the state regardless of caste, creed, colour, race, religion, etc. It is invaluable as it promotes and safeguards the secular and democratic values of the country. It is not only a right but also a fundamental duty of the citizens to protect the spirit of democracy in the country.
However, unlike the first amendment in the US constitution, freedom of speech and expression in India is not absolute. Hate speech, bigotry, etc. cannot be propagated in the name of freedom of speech and expression. But at same time, valued and logical criticism against the government should not be treated as anti-national. Article 19(2) outlines the restrictions concerned with freedom of speech and expression.
After sitting in the Prime Minister’s office for a month in 2014, Shri Narendra Modi said, “Our democracy will not sustain if we can’t guarantee freedom of speech and expression.” Ideological differences are what gives life to a democracy. The continuation of civilised society depends on solving such differences through a civil discourse. However, the passing of certain laws and actions committed by the government in power at both the national and state levels have thrown that particular statement made by the Prime Minister into serious question. Various measures like the criminal defamation law, draconian features of the penal code, the Unlawful Activities Prevention Act (UAPA) and the National Security Act (NSA), etc. have been used by the authorities to stifle and silence dissent. The language used in drafting such laws remain mostly vague and broad and hence haven been misused by those who sit at a position of power and authority.
The allegations of curbing dissent against the current government in power has started to gain more and more traction as it moves to wholly execute its manifesto. Even the honourable Supreme Court stepped in and criticized the government’s move to abolish article 370 in J&K and shut down genuine protests being carried out by citizens of the state. Furthermore, post abolishing article 370, all telephone lines were cut, internet was banned or reduced to terribly low speeds and section 144 was imposed; all in the view of ensuring and maintaining public safety. Freedom of speech and expression was stifled in view of preventing the spread of fake news to avoid communal tensions. This being one of the many cases where there has been a gross misuse of power and influence at the hands of the sitting government.
Many people who have engaged in nothing more than peaceful demonstrations against what many citizens of the state perceived as draconian measures disguised as reformatory laws have been put in pre-trial detentions and been put through extortionate criminal trials. Most prosecutions of this sort were either abandoned or dismissed by the court. The results of such criminal trials are rather small victories in context of the bigger picture. Despite such prosecutions going against those sitting in power, they have already achieved a victory in their books as a precedent for going against the government in power has already been established. The fear of facing the consequences from engaging in such acts or the dubiety regarding how different vague criminal statutes can be applied leads to the citizens engaging in self-censorship. But at the same time there are individuals who are getting away with hate speeches and inciting communal violence by shrouding themselves under the veil of freedom of speech and expression.
In 1962, a constitution bench of the Supreme Court in Kedar Nath Singh v State of Bihar[1], while examining the constitutionality of sedition in article 124A was of the view that, “freedom of speech and expression has to be guarded against becoming a license for vilification and condemnation of the Government established by law, in words, which incite violence or have the tendency to create public disorder. A citizen has a right to say or write whatever he likes about the Government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or with the intention of creating public disorder.”
As both Mill and Bentham were hedonists, the utilitarianism principle centered around the intrinsic value of an act. Everything else’s value would be decided by their relation and worth to the intrinsic value. Although utilitarianism includes both good and bad consequences, the bad consequences are not considered a moral issue if the difference between the good and the bad consequences is not of a significant value. Happiness in this context was measured as balance of pleasure over pain.
The honourable Supreme Court is the highest authority in terms of judicial matters and the positive theory of law takes precedent in India. This means that the majoritarian view holds no essence in a court of law and that the decisions of the court are solely reliant on the laws of the land. The vote and voice of every individual is supposed to be equivalent regardless of any prevalent biases. There is a stark contrast to reality however. Majoritarianism has a key influence when it comes to matters of freedom of speech and expression. Majoritarianism becomes a barrier to democracy when the sitting government treats all criticism as unguided and unpatriotic. At a time, when misinformation travels faster than ever, it is easy for the government that is favoured by the majority to brand some individual as an “anti-national” for voicing legitimate concerns and peaceful demonstrations.
In this case, the government is trying to achieve maximum happiness for its citizens by quashing the voice of a concerned citizen. No citizen wants to hear about the flaws in the government they voted into power. Since the government enjoys the overwhelming confidence of the majority, most of its actions will be accepted by the citizens, even if it means the quashing of a legitimate concern about the state. In the utilitarian context, the government will have done no wrong as its actions will justify the maximum happiness for the majority of its citizens. The ends justify the means in this case. The “good” consequences in the government’s perspective heavily outweigh the possible bad outcomes and hence should not be considered a moral issue. But form an ethical point of view, it is the complete opposite of what a government ought to be doing.
In 1962, the honourable Supreme Court ruled that an action or a speech could only be considered as sedition if it could incite chaos or violence. Despite this ruling, state courts have continued to charge people on sedition for far lesser. Even the honourable supreme court has not been consistent with its decisions when it comes to mattes of freedom of speech and expression. This has led to harassment of dissenting and unpopular sentiments at the hands of local officials and various interest groups.
In a democracy, it is the courts of law that protect the rights of a citizen and upholds the law of the land. But there rises a serious problem when the same courts of law are inconsistent in setting a precedent. It defeats the entire purpose of a democracy; that every voice is supposed is to be equivalent in front of a court of law, regardless of any biases. Political affiliations should not be a deciding factor in a court approved verdict of an individual. But Bentham could justify this by stating that an unpopular verdict on behalf of the court could upset the majoritarian sentiment leading to disorder and violence. By doing this the courts are promoting greater good of the society as listed in the basic human rights.
John Stuart Mill reworked on the utilitarian principle as put forward by Bentham. He reiterated that pleasure or the happiness should be concentrated on the “mental” rather than the “physical”. He famously said, “better unhappy than pleased with a donkey”. He faced the criticism in the order of how one would determine the importance of various forms of pleasure. He made the argument that an individual with different forms of pleasure in question would come to a decision on their own.
But an individual under the trance of a majoritarian sentiment will refrain from following what is morally and ethically right as a human being is a social animal by nature and going against the grain will put them in danger of becoming an outcast. The same problem is further compounded when the establishment exploits this trait to deflect off any criticism in the name of nationalism. Low employment, a suffering economy, mistreatment of minorities, etc. cannot be justified by high sentiments of nationalism.
Conclusion
“Our democracy will not sustain if we can’t guarantee freedom of speech and expression.”
The above statement made by the prime minister of our nation is the very backbone of our constitution and of a thriving democracy. A democracy is severely crippled when the sitting government uses all the resources at its disposal to discredit legitimate dissent and portray the dissenters as enemy of the public and an “anti-national”. When the government in power makes the argument of undoing the wrongdoings of previous regimes, it is echoing Bentham’s view of long sightedness of a policy. However, that cannot be an answer to all the problems going on within the country. In the government’s eyes, a strong feeling of nationalism within its citizens can justify the many ongoing problems. If that is the case, how can one single social media tweet rattle these deep-rooted feelings of nationalism so hard. If praises from foreign media can be sung about, why is it that critique from foreign media is viewed as anti-national forces trying to break of the unity of this nation.
The government in power must realise and understand that there are bound to be differing perspectives in a democracy and those pointing out the shortcomings mean well and do not have an anti-national agenda. Or else the fabric of this democratic nation is bound to become a fictional ideal.
BIBLIOGRAPHY
- Stifling Dissent the Criminalization of Peaceful Expression in India- Anindito Mukherjee
https://www.hrw.org/report/2016/05/24/stifling-dissent/criminalization-peaceful-expression-india
- Curbing Dissent Is the Beginning of The End of a Democracy, Says Justice Gautam Patel Of Bombay High Court- Arpan Chaturvedi
- Application of utilitarianism principle in India- Ayush Verma
- Analyzing global response to the controversial Citizenship Amendment Act- Prithvi Iyer
- The Right to Dissent is the Most Important Right Granted by the Constitution: Justice Gupta
https://thewire.in/law/right-to-dissent-constitution-justice-deepak-gupta
- Our Fundamental Rights to Free Speech and Protest Are Being Eroded and Mauled: Justice Lokur
https://thewire.in/rights/fundamental-rights-free-speech-protest
[1] 1962 AIR 955, 1962 SCR Supl. (2) 769.
