Courts should review laws that constrain freedom: Amartya Sen

Calls for comprehensive action to reduce number of laws impinging upon freedom of expression

Nobel Prize-winning economist Amartya Sen on Friday called for comprehensive action to reduce the number of laws that impinge upon freedom of expression in India. Stepping aside from the “intolerance” debate, he said the country and its laws were, in fact, too tolerant of intolerance.

On a day in which JNUSU president was reportedly arrested for sedition, Sen, who is also renowned as a political philosopher, said colonial penal codes that went against freedom should be changed, or challenged in courts. He added that courts should step in to scrutinise any laws made by states which extended the imagined “right against offence”. The judges, he argued, should examine whether such laws were compatible with the fundamental rights guaranteed in the Constitution. Sen was delivering the annual Rajendra Mathur Memorial Lecture, which is organised by the Editors Guild of India.

Sen emphasised that the Constitution “should not be blamed for what it does not say” — that, in fact, the Constitution has “no restriction against offence as such” but only reasonable restrictions on freedom of expression. It was only the colonial-era criminal laws used by the British to maintain law and order and control the colonised population that were to blame, he said. Calling for judicial scrutiny of laws limiting freedom of expression, Sen said: “The courts should examine… [whether] India is led seriously astray by the continuance of the rules of the Raj.” In that context, he welcomed the Supreme Court’s recent decision to review its judgment upholding Section 377 of the Indian Penal Code, which criminalises homosexuality.

Sen said while the right to not be offended was always a problem, instances when the government caved in to organised political activism and restricted freedoms were growing more common. He cited control of individuals’ diets in particular, saying children had been denied eggs in school to satisfy vegetarians’ sentiment.

The problem, he emphasised, had not started with the current government, though it had added substantially to the restrictions that were already there.