My dear law students, now that contempt of court is in the news again, I thought it would be a good time to talk to you about freedom of expression. I don’t have to force you to pay attention to this topic as this is something that every law student loves to talk about.

Like you, I am also fascinated by freedom of expression although my earlier enthusiasm has dimmed somewhat after I have had a teenager in the house.

Now, I believe that taking someone like Kunal Kamra to task for criticising the Supreme Court is a futile exercise. He is a comedian. He makes outrageous remarks for a living. To punish him for provocation is to silence the very idea of a comic.

But I am not here to talk about Kunal Kamra but about how to talk about the freedom of expression. The debate on freedom of expression in India goes round in circles. One side says freedom of expression is a western import and has no place in India.

The other side says freedom of expression is the key to democracy in India. Since there is so little of it, there is not much democracy in India as well.

You law students must resist the temptation to enter these debates through familiar fault lines like the ones I have mentioned above. What’s the point of that? You have the opportunity to bring new perspectives and approaches to legal discussions.

When I was a student, Indian scholarly work (outside of textbooks) on constitutional law and history was largely non existent. Today we have several scholars actively writing and speaking on Indian constitutional issues.

The Indian constitution makes the right to freedom of expression a fundamental right but subjects the right to reasonable restrictions in the name of, among other things, public order, morality and yes, contempt of court.

The crucial idea here is that of reasonableness and the term is so wide as to be open to various interpretations.

My daughter’s Hindi textbook has a lesson on freedom, which, by the time I reached the end, told me that freedom means responsibility. Quite how this interpretive feat was achieved is still beyond me, but the underlying idea was that untrammelled freedom is not freedom at all.

I would like you to look at various approaches to the interpretation of the scope of freedom of expression under the Indian constitution. One useful work to refer to is @gautambhatia88 work: ‘Offend, Shock and Disturb: Free Speech under the Indian Constitution’.

While discussing freedom of speech, Bhatia uses a device that should be familiar to students of Ronald Dworkin: using different ‘models’ to understand the law.

Bhatia provides us with two models. The first model is the liberal-autonomous model under which the laws that restrict expression respect people as persons capable of making up their minds and taking responsibility for their actions.

The second model is the moral-paternalistic model under which the government assumes that people, because of their inherent tendencies towards corruption and violence, need to be protected against different kinds of expressions-seditious, obscene and insulting.

Your thoughts on the more granular issues relating to freedom of expression-whether a comic making sweeping statements about the Indian Supreme Court is unreasonably exercising his freedom of expression-must be informed by your position on the two models discussed...

...although I must add that this is not a linear process. Your suppositions on the applications of the two models will in turn influence your understanding of the scope and reach of the respective models.

Please remember that the models are helping us determine not what the law ought to be but what the law is. Of course the models are value laden-each makes ethical and moral assumptions about human beings.

Without taking moral positions, it would be impossible to take a position on freedom of expression. I urge you to take such positions yourselves. Ask what kind of conception of a rational person best fits the constitutional principles of freedom of expression and vice versa.

Don’t be hesitant to enter into this kind of overarching moral analysis of the law in order to excavate the content of the law.

Of course your analysis will be complex (and intriguing). But you are the generation that has cut its teeth on making sense of
Dark, so what I am suggesting will not be a problem.