The university versus constitutionally protected speech

The Hindu

a day ago

'Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties,' said John Milton in his famous pamphlet, Areopagitica (1644), opposing the licensing system (called imprimatur). Originally introduced in response to the introduction of the printing press in England in 1538 and reinstituted by the British Parliament in 1643, authors had to obtain permission or licence from the government prior to their publications. In India, several High Courts and even the Supreme Court of India are hearing petitions on the limits of freedom of expression. Should we really go back to that dated system where prior permission of the government or university is required to express one's views? Are university teachers mere robots who should write only research papers and not express their opinions on contemporary issues? Do we no longer consider free speech to be an integral part of human dignity and an individual's self-fulfilment? Is truth no more autonomous and the highest public good? Are not excessive restrictions on free speech based on the assumption of infallibility of the state or its stated positions? These are some of the pertinent issues that India must resolve because its position on these fundamental issues is bound to strengthen or weaken its ethical claim of being a true Vishwaguru. India's low rank of 151 out of 180 in the World Press Freedom Index does not enhance its stature in the comity of nations.
No doubt, 'nation first' should be the rule of thumb for all of us because no debate can survive if the nation itself perishes. We must be united in our fight against an enemy that has time and again been sponsoring and exporting terror to our country. A prompt and befitting response during Operation Sindoor has been given to the enemy nation.
The labelling of opinion as activism
We must now return to the realm of constitutional vision as we need to win the battle of ideas as well. Of course, every writer has the duty to make a disclaimer that his views are personal and do not represent the views of the institution he serves. But then a mere expression of views cannot be termed by the corporate owners of the universities or vice-chancellors as 'activism'. An expression of opinion may be dissent but not necessarily activism. Public academic institutions do not mind even activism and active politics. A professor became the national president of the Bharatiya Janata Party (1991-93).
Certainly, no writer should expect any institutional support for his personal views. No court should ideally shy away from its duty of safeguarding constitutionally 'protected speech'. It must remain consistent with its own past pro-freedom of speech judgments. The U.S. Supreme Court, in Texas vs Johnson, 491 U.S. 397 (1989), had even considered burning of the national flag as a protected expression. India need not go that far. John Stuart Mill, in his celebrated essay on liberty, said that ''If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind'. British jurist William Blackstone in 1769 considered a free press was essential for a free state. Though the 1787 U.S. Constitution did not include freedom of the press as a right (because Roger Sherman had said in the Constitution Convention that adopted the U.S. Constitution, that there was no need to mention freedom of press as the powers of the Congress would not extend to press yet within four years), the First Amendment in 1791 on freedom of press made a categorical and explicit declaration that the 'Congress shall make no law... abridging the freedom of speech, or of the press....'
Democracy is government by choice and people cannot exercise their choices if they are not told about all the available alternatives. Let alternative views be expressed and protected. Moreover, freedom of speech assures individual self-fulfilment. If a citizen is not allowed to express his emotions, his opinions, his frustration, and his happiness he will not feel self-fulfilled. University owners must understand that such suffocated individuals cannot produce scholarly research as knowledge cannot be created in a controlled environment. We produced greats such as Aryabhata, Chanakya, Gargi Vachaknavi and Charaka because the education in our ancient gurukuls was not controlled by the state. Within the portals of universities, all kinds of ideas, which include repulsive ones, must be expressed. Today, our universities are over regulated and grossly underfunded.
Expression and the truth
Freedom of expression helps us in attaining the truth. It was Milton who said, 'Though all winds of doctrine were let loose to play upon the earth, so truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and falsehood grapple, who ever knew truth put to the worse, in a free and open encounter'. In an age of fake news, let everyone speak so that people can decide for themselves who is speaking the truth. Justice Oliver Wendell Holmes Jr. of the United States rightly observed that in a capitalist market place, the 'best test of truth is the power of thought to get itself accepted in the competition of market'. Thus, an expression of all views would basically serve the government's cause in fencing off people from what is false.
This is nobody's case that freedom of speech is an absolute right. Indeed, no one should indulge in unnecessary talk. The exercise of right must be aimed to serve the constitutional objects of free speech, i.e., the search for truth and helping people in forming opinions about governmental actions and thereby ensuring sovereign people's participation in the governance.
The extent of restrictions
The Constitution permits only 'reasonable restrictions' on the freedom of speech and expression. The all-important word 'reasonable' was inserted by the first constitutional Amendment in 1951. These restrictions can be in the interests of sovereignty and the integrity of India, security of state, public order, decency, morality, friendly relations with foreign countries, and defamation or incitement of an offence. 'Public order and friendly relations with foreign states' too were inserted in 1951. Interestingly, restrictions in the interests of 'sovereignty and integrity' were inserted by the Constitution (Sixteenth Amendment) Act, 1963.
No restriction on freedom of speech can be imposed even by the government through an executive order. Restriction on free speech requires legislation. To satisfy the test of 'reasonableness', courts invoke the 'doctrine of proportionality'. In Anuradha Bhasin vs Union Of India (2020), the Supreme Court not only held the right to Internet as a part of free speech but also reiterated that the restrictions on free speech can be imposed after considering alternative measures. It added that such restrictions must be legitimate, necessary and least intrusive. It is the state which has the burden of proof in establishing that the restriction is proportionate, and thus reasonable.
No institution has any right to restrict anybody's freedom of speech on any ground other than the ones mentioned in Article 19(2). Thus, restrictions cannot be imposed by any institution just because it is a private educational institution or because it is bound by the regulatory control of regulatory bodies. These are lame excuses that do not have a leg to stand on.
The Supreme Court, in Dr. Janet Jeyapaul vs S.R.M. University and Anr. (2015), had held private universities as 'state' because they too discharge 'public functions' and thus, any arbitrary dictate by them would be hit by Article 14, i.e., the right to equality which includes the right against arbitrariness.
Returning to the issue of an author/writer facing the consequences, the law is crystal clear — if his speech is not protected by the Constitution, no one can or should defend him. But when the speech is well within constitutional limits, ideally, the institution should not disown him as it would not only demotivate the faculty but also result in a situation where such an institution would not be able to attract outstanding scholars. A student is the real conscience keeper of a university. Private educational entrepreneurs must know that the Supreme Court has had the consistent view that education is an occupation and not a business. Let us celebrate a diversity of opinions as in a vibrant democracy, every opinion counts and the university truly signifies a universe of knowledge.
Faizan Mustafa is a constitutional law expert and Vice-Chancellor of Chanakya National Law University, Patna, Bihar. The views expressed are personal