Article 19 of the Indian Constitution enshrines Right to freedom of speech and expression. This Right is not only limited to the strict contours of speaking or expressing an idea, it has in it the particulars of life, and since everyone has this Right of expression it even subsumes the idea of equality.
Thus, this interrelation between the three articles, 14, 21 and 19 together form the golden triangle of rights which, if infringed by any law, would be abhorrent to the basic structure of the Constitution and is bound to be struck down.
The idea of expression cannot be devoid of limitations. Every society places some limits on the exercise of expression because expression always takes place within a context of competing values. As John Stuart Mill argued in On liberty, “All that makes existence valuable to anyone depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed by law in the first place, and by opinion on many things which are not fit subjects for the operation of law.”
The task, therefore, is not to expound for an unlimited domain of free expression; such a concept cannot be defended. Instead, we need to decide how much value we place on expression in relation to the value we place on other important ideals. But a lot of us take this idea of limitation and extend it to every spectrum of expression, to an extent where limitation takes the shape of curtailment, tyranny and violation of human rights. The Government can limit certain forms of actions, but when those limitations start to extinguish some basic expressions like one’s sexuality then it shapes into infringement of a right. Even in Hindu Mythology sex is considered to be one of the four basic tenants along with dharma, moksha, artha and kama. Kama is one of the basic instincts that man embodies within his self; absolute curtailment of it is not possible and, if propagated, would dilute the sanctity of law and justice. Even though the expression of this instinct has to be exercised with limitations, this stricture has to be just and has to set out the right
balance of values, morals and expressions.
Thus, when two active citizens of the same sex of our country choose to express their sexuality without creating substantial problems in the moral fabric of our society then it should be not be curtailed. The problem that is envisaged here is not that the majority considers it to be wrong, but that it breaks the substantial morals to an extent which affects the existence of majority. This idea of preservation and protection of an individual expression from any institution governed by majority is also emulated in all the fundamental rights given to an individual. They protect an individual against any form of oppression from the authorities, who embody the beliefs and values of the majority.
We seem to have reached a paradoxical position. On one hand, a majority of our society does not accept expression of one’s sexuality to the same sex and, on the other hand is the idea that it is a basic form of expression. The paradox is resolved by thinking of expression in the following terms. One is, indeed, free to express what one likes, but the state and other individuals can sometimes make that freedom more or less costly to exercise. This leads to the conclusion that we can attempt to regulate expression, but we cannot prevent it if a person is undeterred by the threat of sanction. The issue, therefore, boils down to assessing how cumbersome we wish to make it for people to express certain things. The best way to resolve the problem is to ignore the question of whether or not it is legitimate to attach
penalties to some forms of expression.
We have already suggested that all societies do correctly place some limits on free expression. If the reader doubts this, it might be worth reconsidering what life would be like with no prohibitions on libelous statements, child pornography, advertising contents and releasing state secrets. The list could go on.
The real problem we face is in deciding where to place the limits according to the time and space that we are living in. In the India of today, not just one or two but a substantial few are expressing their sexuality towards the same sex. Today’s society has matured sufficiently to reconsider this expression, on whether such expression should be curtailed absolutely as present in penal law or to allow it by redrawing new boundaries to limit this expression. These boundaries have to be redrawn after embracing all the opinions and attuning all the rights, not absolutely but with reasonable restriction. This will ensure protection of right of expression till the time we are again ready to redefine our boundaries.
(The writers are members of the legislative Research and Policy Club, National law University Odisha)