Between free speech and hate speech
- Sudarshan TV case will have several implication for the regulation of free speech.
- In principle, Indian law allows prior restraint on broadcasting. This prior restraint should be used sparingly and must meet a high constitutional bar.
- Indian law also allows regulation for hate speech.
Maintaining the equilibrium
- The government feared that if it did not have the power to regulate speech, it will threaten the stability of society.
- The hate and violence got the state to betray its own liberal commitments
- Liberals never acquired the confidence of people to let go of state regulation in the name of defending the republic.
- The spread of hate speech and its political consequences are now infinitely greater.
- The situation, where communication mediums are used to target communities, are not outside the realm of possibility.
- It is for this reason we still have so many restraints on speech.
Challenges in regulation of speech
- Almost every regulation of speech, no matter how well intentioned, increases the power of the state.
- But now, in the current context, empowering the state is a frightening prospect as well.
- The issue is fundamentally political and we should not pretend that fine legal distinctions will solve the issue.
- An over-reliance on legal instruments to solve fundamentally social and political problems often backfires.
3 lessons to learn
1) The more the state regulates, the more it politicizes the regulation of speech, and ultimately legitimate dissent will be the victim.
2) There is a whole bunch of laws and regulation already on the books for regulation, these have been ineffective because of institutional dysfunction.
3) Social media operates on a set of monetizing incentives. But broadcast media is also based on political economy.
- The granting of licenses has always been a political affair; the pricing structures set by the TRAI have perverse consequences for quality and competition.
- Our current media landscape is neither a market nor a state. The more the underlying political economy of media is broken, the less likely it is that free speech will stand a chance.
- Not post facto content regulation, but a market structure that can help provide more checks and balances.
- Not let bad media drive out good.
- The Court suo motu setting up a regulatory framework does not inspire confidence. It is not its jurisdiction to begin with. This is something for Parliament to think about.
- The government must walk the tight rope of regulation and safeguarding the rights of all.