Is there a right to take offence?

Is there a right to take offence at any form of speech?

Gautam Patel: No such right exists. The reasonable restrictions on free speech under Article 19(2) of the Constitution do not recognise offensive speech as a distinct category. Instead, the restrictions are narrowly defined and include security of the state, public order, decency, morality, and other specific grounds. Therefore, the notion of a right to take offence lies beyond the ambit of constitutionally permissible limitations. While the language used in the show is highly objectionable and unpalatable, it does not necessarily amount to a violation of decency or morality under Article 19(2).

Dushyant Dave: The right to free speech is always subject to certain exceptions, including decency and morality. However, these standards vary across jurisdictions and evolve over time. While I agree that the language used in the show was highly inappropriate, I have serious reservations about whether it meets the legal threshold to constitute a criminal offence. In reality, such language is widely used in everyday discourse and has become common parlance in society. Thus, the outrage surrounding it seems misplaced.

Should laws be paternalistic, or restrict speech only when it poses an imminent risk of public disorder?

Dushyant Dave: I believe that speech should remain unrestricted, except when it is seditious and incites violence. The Constituent Assembly debates reveal strong opposition to the restrictions imposed on free speech under Article 19(2)-19(6), with many members arguing that the government should not have the power to curtail expression. However, Dr. B.R. Ambedkar maintained that in the larger interest of the nation, some restrictions were necessary as long as they remained narrowly defined. However, the irony is that politicians routinely engage in hate speech, yet constitutional authorities fail to take any action. Given this, I would rather grant citizens greater latitude to express themselves than condone such reprehensible conduct from our political leaders.

Gautam Patel: The freedom of speech under Article 19(1)(a) can be restricted only by the limitations explicitly prescribed in Article 19(2). While the right to free speech is expansive, the restrictions on it remain narrowly defined. Therefore, the state cannot impose restrictions beyond these constitutional limits. More importantly, speech cannot be curtailed through executive action — such restrictions must be imposed solely through duly enacted legislation.

Is constitutional morality a vital safeguard against the moral convictions of the majority?

Dushyant Dave: Constitutional morality upholds the spirit of the Constitution by reinforcing values like social justice and equality. However, restrictions on free speech are governed by statute law. Any evaluation of whether speech constitutes an offence must be confined to these narrowly defined legal parameters, rather than the shifting moral sentiments of the public.

That said, society has every right to condemn the remarks made on the show. It can express discontent through criticism or boycotts. However, criminal sanctions are never the solution. Moreover, the increasing trend of filing multiple FIRs for the same offence constitutes harassment. It not only prejudices the accused but also undermines their right to a fair defence.

Gautam Patel: Constitutional morality is a nuanced and evolving concept. It is not an inherent sentiment but one that must be cultivated. There is also ambiguity regarding its application to constitutional processes. For instance, Dr. B.R. Ambedkar believed it was wiser to entrust the legislature with prescribing forms of administration rather than embedding them in the Constitution. That said, I agree that whether a form of speech qualifies as an offence is a matter strictly governed by substantive law.

Can profane speech necessarily be considered “obscene” speech?

Gautam Patel: A speech laced with profanities is not necessarily obscene. This understanding has evolved over five decades of judicial interpretation. In 1964, the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra applied the Victorian-era Hicklin test to ban Lady Chatterley’s Lover by D.H. Lawrence. It defined obscenity as anything with a “tendency to deprave and corrupt” those susceptible to immoral influences. Fifty years later, in Aveek Sarkar v. State of West Bengal, the Court embraced the “community standards” test, a more contemporary approach. However, community standards are amorphous and hard to define. Does it mean that discussions about sex in public discourse must be prohibited? If so, what does that imply for our ancient art and sculptures? These standards continue to evolve. Today, few would deem Lady Chatterley’s Lover obscene rather than a literary masterpiece.

Dushyant Dave: Obscenity is not explicitly defined under criminal law or the Information Technology Act 2000. Instead, its determination is a matter of degree, shaped by society’s evolving moral standards. Looking at the erotic art of Khajuraho and Konark. It seems that rather than becoming more progressive, our society has regressed over time. Justice Krishna Iyer captured this dilemma in Raj Kapoor & Ors. v. State (1979), where the court quashed criminal proceedings against the makers of the film Satyam, Sivam, Sundaram. He observed: “The relation between reality and relativity must haunt the Court’s evaluation of obscenity, expressed in society’s pervasive humanity, not law’s penal perspective.”

A recent study by the research group India Hate Lab found a 74.4% surge in hate speech against minorities by politicians in 2024. Is the relentless targeting of comedians a case of misplaced priorities?

Dushyant Dave: Yes, definitely. Politicians continue to spew hate speech with impunity. During the Lok Sabha elections, several politicians, including the Prime Minister, made blatantly divisive remarks against minorities. Yet, the Election Commission and the State Police remained silent spectators. Opposition parties also failed to challenge these violations in court. Meanwhile, mainstream television journalists amplify hate speech daily. This should alarm every member of society. Comedians are targeted across political lines because they expose uncomfortable truths. Politicians perceive them as a threat. But dissent and criticism are fundamental to democracy. Silencing them paves the way for authoritarianism.

Gautam Patel: Comedians play a crucial role in society by challenging authority and reflecting societal realities. I firmly believe in the Latin maxim “In joco veritas — In jest, there is truth.” Thus, the targeting of comedians is not just unfortunate but reprehensible. However, profanity is not humour; it is an indication of thoughtlessness. Intelligent humour does not require offensive language. As a society, we must understand that divergent views are inevitable. We can either engage with them or ignore them, but not silence the messenger. I also agree with Dushyant that we are failing to penalise the rising instances of hate speech.

Efforts to regulate digital content, such as the Broadcasting Services (Regulation) Bill, have intensified. What are your concerns?

Gautam Patel: I do not endorse any such regulatory attempts. Once free speech is restricted, it sets a dangerous precedent. Censorship creates uniformity, compelling everyone to consume the same sanitised information. But the essence of free speech is to prevent such conformity. In a democracy, divergent opinions are essential. Else, we risk sliding into authoritarianism.

Dushyant Dave: My concern is the selective enforcement of laws. Why do censorship laws primarily target Opposition leaders and government critics? People are dragged to court for merely criticising the government, even when their speech falls short of sedition. Laws must be applied fairly and impartially — something the judiciary is failing to uphold. A vibrant democracy demands unwavering protection of free speech.

Listen to the conversation in The Hindu Parley podcast