What can I say? (without being charged?)

The Gopalan Nair saga (whatever the wisdom or lack of it that got it started) highlights another more important issue: The freedom to express one's views. How important is this right? What is the extent to which this right can be stretched?

Rights are the antidotes to power.

Often it has been stated that the freedom of speech cannot be unlimited; that freedom must be accompanied by responsibility. Whilst a person has the freedom to speak, he doesn’t have the freedom to hurt or harm. Instigating racial and religious hatred and creating social tensions in the name of free speech is a misguided use of the freedom. So far so good. I’m willing to concede.

What about the use of free speech against public officials?

Constitutional Rights are not rights operating in a vacuum. They are relational. The citizenry’s relationship with the state is spelled out in the form of rights. These are not weapons that we use against our fellow men nor are these empty propositions that we can claim as the badge of a free people. These rights are protections. Protections against potential abuse. Governance entails giving power to a few to administer the many. Societies are complex and governance of all by all is impracticable. So, for want of a better alternative, we confer authority upon those who govern to govern for out benefit. In recognition of the fragile and fallible nature of the human will, we have created systems. The objective and abstract system is intended to ensure that even if human fallibility were to creep into governance, the system would extract and terminate that virus. The Constitution is the anti-virus software running in the background and assisting us in isolating human failings as and when they crop up.

The Freedom of Speech is one such tool. This freedom’s purpose is not to enable an individual citizen to cause harm to others. Its purpose is, amongst others, to enable a citizen to call out and name officials who have allowed their personal frailties to compromise the responsibilities they bear as officials. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role is not an invitation for chaos to visit the nation. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role does not result in a riot. To allege that an official is corrupt, derelict in his duties, lacking in independence or otherwise deficient in his role is not even a case of tiptoeing onto the slippery slope leading towards the ‘Hock Lee Bus Riots’ (the caricature of chaos within our nation’s collective meta-narrative).

The very purpose of the constitutional right to free speech is to question the actions of those who govern; if necessary, to question the integrity of individual officials. There is no higher purpose that this right serves than to enable the citizen to speak truth to power. Of course, just as the citizen has the right to allege, the official has the right to defend himself against such allegation. The defence against such allegations ought to be conducted in the public sphere through clarifications by the official of the position he adopts.

Criminalization of criticism of public officials runs counter to the fundamental purpose behind the freedom of speech. A threat of force or a threat to the safety of a public official is not a legitimate exercise of one’s freedom of speech. But, an insult is nothing more than a forceful expression of one’s disgust with an official or a system. The Freedom of speech bestowed upon the citizenry is a mechanism for dissent and criticism to be voiced and accommodated within a system of consensual governance. To criminalise the criticism is to nullify the freedom.

I am not trumpeting this freedom as a religion here. (Yes, that is a reference to the Attorney General’s recent comment.) I am merely asserting that it is a practical tool in the hands of the citizenry to make sure that the human failings of those who govern do not compromise the collective good. Often there is a tendency to argue that the freedom of speech is an individual right and that sometimes it has to be compromised in the interest of the greater good of society. But, when the freedom is exercised as a critique of those who govern, it is in fact acting as a tool furthering the collective interest. It is the suppression of criticism that tends to serve individual interests and as a consequence fails to advance the collective good.

Salus populi est suprema lex. Public welfare is the highest law.