09 Jun Speech That Outrages Modesty or Ridicules Immodesty
I have long found it curious that those who favor constitutional comparativism often fail to appreciate the particular cultural distinctives that imbue different legal systems. It is rare that comparative scholars will outline those differences, many of whom wish to deny that they exist or diminish their importance.
It was therefore of great interest to me today when I came across a fascinating line of Indian Supreme Court cases that impose criminal sanctions on sexually suggestive speech. Article 509 of the Indian Penal Code provides that “whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.” Last year the Indian Supreme Court reaffirmed the test for outraging the modesty of a woman to include “any act done to or in the presence of a woman” that is “clearly suggestive of sex according to the common notions of mankind.” Mahale v. State, 2004 AIR (SC) 1677. This test was used by the Bombay High Court to acquit a defendant who made insulting remarks to a woman, but only because those remarks were not sexually suggestive enough and therefore did not “violate the concept of feminity.” Kshirsagar v. State, 1991 CLJ 410. There is no discussion in any of these cases regarding a constitutional right to free speech, which is not surprising given that that right in Article XIX of the Constitution expressly permits the State to impose “reasonable restrictions … in the interests of … public order, decency or morality…”
Coincidentally, today I also happened upon a book review of Judges in Contemporary Democracy edited by Justice Stephen Breyer and Robert Badinter, former President of the Constitutional Council of France. See 80 NYU Law Review 694 (2005). The book review includes an excerpt of a dialogue between Ronald Dworkin and Minister Badinter addressing the question of when a French judge may restrict political advertisements that ridicule a political opponent:
DWORKIN: …[Y]ou cannot accuse your opponent of a crime. But can you show a picture of him picking his nose?
BADINTER: No, no, that would not be appropriate.
DWORKIN: What stops that?
BADINTER: That would be the judge.
DWORKIN: Now, under what regulation?
BADINTER: The general statute on defamation and ridicule.
DWORKIN: But this is not defamation. There is no lie; there is no falsehood. You are simply using your time to show an ugly picture of your opponent. . . . Is there anything in a judge’s power that can stop this kind of ad?
The dialogue concludes with Dworkin and Badinter conceding that ultimately cultural differences anchor the legal differences. Badinter was of the view that the American approach to political advertising was “horrible” and “shocking.” Many Americans may well agree, but would find the French system of prior restraints on political speech even more offensive.
Query what utility these two experiences from India and France offer the United States in defining its free speech protections. Speech that outrages the modesty of a woman or ridicules the immodesty of a politician should be subject to prior restraint or even criminal sanction? I frankly can find very little utility in these comparative experiences. They simply underscore the cultural divide. I’m not suggesting they are necessarily wrong for India or France. But they would be lost in translation if they were borrowed for comparative reference.
Which raises the larger question of whether it is better to try to find a common consensus on what is acceptable speech or is it better to simply admit that sometimes on some things different cultures are so foreign that “common notions of mankind” do not exist and should not be pursued?