Removing Bol Na Aunty Aau Kya from YouTube won't curb free speech
The recent controversy over the song "Bol Na Aunty Aau Kya", produced in 2015 by self-styled rapper Omprakash Mishra has, among other things, triggered discussions on the contours of the freedom of speech and expression. To recap, Mishra's song gained instant viral status on social media platforms earlier this month for reasons, one suspects, that primarily have to do with its cringe pop ethos.
The song's popularity ended up transcending online memes, and burst into the real world, as, amazingly, a few hundred seemingly jobless youngsters gathered in central Delhi's Connaught Place to chant the lyrics of the song.
With its increased notoriety, however, came scrutiny. Several publications, including a piece in DailyO, called out the misogynist nature of the song's lyrics. A journalist from The Quint made a video exhorting viewers to report the song's video on YouTube so that it could be taken down.
This, in turn, attracted criticism from several quarters for being an overreaction, and as a call for censorship. YouTube did eventually remove the video, but only on a copyright claim by a YouTube channel. A lot of people blamed The Quint journalist for its removal all the same; some of them, most egregiously, harassed her online and even threatened her with rape and murder on various social media platforms, forcing the website to remove her video from its portal, as well as filing a police complaint demanding protection for The Quint's journalists and their office premises from any untoward incident.
Amid this entire remarkable series of events, I shall attempt to answer two questions that remain in many people's minds: Is Mishra's song a valid exercise of his right to freedom of speech and expression, guaranteed to all Indian citizens by Article 19(1)(a) of our Constitution?
And is demanding the removal of his song's video from YouTube an illiberal invitation for censorship, and thereby in conflict with the spirit of free speech?
The answer to the second is quite clear: the right to freedom of speech and expression is available only against the State, and not against private parties. In other words, one doesn't have the right to exercise this freedom against private platforms, which get to decide what kind of content they host.
YouTube, like every online media platform, has a set of community guidelines regarding what kind of content is not to be put up on its platform. YouTube users have the option to report any video they think is in contravention of these guidelines, and the website's staff reviews these reports. In case they determine that a reported video does violate one or more of YouTube's guidelines, the video is removed.
Therefore, choosing to report a video that one feels contravenes any of the guidelines, and even exhorting other people to do so, is a perfectly legitimate and legal. Whether the reported video is removed or not is up to the discretion of the reviewing staff, and is purely based upon whether the video stands in violation of the Community Guidelines, not on the number of reports received. Comparing this to an act of censorship by the government, therefore, betrays a poor understanding of the right to free speech itself.
In order to answer the first question, we must get introduced to free speech's notorious cousin, hate speech.
According to Terry A. Kinney, in law, hate speech is any speech, gesture or conduct, writing, or display which is forbidden because it may incite violence or prejudicial action against or by an individual or group, or because it disparages or intimidates an individual or group. Hate speech could be seen as the manifestation of prejudices and stereotypes held by the offender(s) against the members of a certain social group or community.
It is, therefore, a form of discrimination.
India does not have any specific hate speech legislation, and our hate speech jurisprudence has evolved as a result of the judicial interpretation of Article 19(2) of our Constitution, which prescribes restrictions on the right to freedom of speech and expression. In one of its judgments from 2013 in the case of Pravasi Bhalai Sangathan versus Union of India and Others, the Supreme Court used the term "hate speech" for the first time, and dwelled upon Canadian jurisprudence in this matter as per which the phenomenon is not about causing distress to an individual or community, but about laying the groundwork for later attacks on a community, which can range from discrimination to ostracism, segregation, deportation, violence and, in extreme cases, genocide.
In our country, the government has exercised censorship primarily on the basis of the heckler's veto - self-appointed cultural guardians threatening or actually committing violence against any perceived slight to their culture. This fits within the conception of the welfare theory of justice, conceptualised by English jurist Jeremy Bentham and revised by English philosopher John Stuart Mill, which states: that which secures the maximum happiness for the maximum number of people in a society is just.
In such a utilitarian model, the happiness of the many (the numerous violent hecklers) is more important than the happiness of the one (the artist whose free speech is restricted by the hecklers).
We must aspire to advance to the community theory of justice to tackle hate speech. The community theory, advocated by American legal scholar Michael Sandel, assumes that no proper model of justice can be neutral to the merits of the ends pursued, and that which promotes what is most honourable and virtuous is what is just. In this conception of justice, the community is to decide the values that are honourable and just for it.
In light of these, Mishra's song is certainly not a valid exercise of his right to freedom of speech and expression. His speech is not mere annoyance one can turn a blind eye to. The song, with its misogynistic content, may not cause immediate suffering to any woman, but by perpetuating problematic stereotypes and the sexual objectification of a woman, along with normalising the disregard of consent for sexual acts, it will certainly lay the groundwork for violence against and harassment of women if it gains credence.
Comparing those demanding the removal of Mishra's song from YouTube to the Right-wing goons who exercise the heckler's veto is, therefore, incorrect. Their opposition was firmly grounded in values, not in utilitarian calculus.
Actively countering such unabashed misogyny — which contributes to the creation of a non-secure environment for all women — in a reasonable manner is surely honourable and virtuous, and must be given precedence over the exercise of unrestrained free speech by our society.