One might wonder whether the series of death threats and abuses hurledat 10 Minute School, an online education platform, allegedly over a comment made by one of its former educators appreciating a pro-LGBTQ post and videos relating to menstruation and sexual consent posted on its website, can invoke the constitutional debate of balancing freedom of expression against other interests.
Constitutional rights are principally considered to regulate the relationship between the individuals and the State (classical vertical approach). Had the State itself adopted measures to take down those videos from the website citing the debatable claim of hurting religious sentiments, the action could have been constitutionally challenged, like it had been done in the case of Bangladesh Anjumane Ahmadia v Bangladesh (1985) where the State itself confiscated copies of a book that were considered by the State as outrageous and offensive towards the feeling of the majority of the Muslims in the country. However, in the case at hand, the education platform was forced to take down those videos following the threats made by private individuals who believed those videos ran counter to their religious ethos. More often than not, in seemingly pseudo-legal sense, such incidents are labeled as 'clamp down on free speech and expression' which raises the most pertinent question –can the constitutional right of free speech and expression guaranteed in article 39 of the Constitution be justiciable in actions between private individuals?
This question brings to the forefront the issue of the horizontal concept of constitutional rights as opposed to that of the vertical one. The horizontality of constitutional rights implies that the Constitution, besides the State, binds private individuals as well. The inclusion of 'any person' or 'any authority' in article 102(1) of the Constitution of Bangladesh (that lays down in particular against whom remedy can be sought for infringement of fundamental rights), to a certain extent, indicates the radiating approach of the Constitution in both public and private sphere. Despite the presence of such wordings, the vertical concept pervaded the judicial decisions of Bangladesh. Nonetheless, the horizontal approach has unfolded itself steadily and incrementally over the years. It finally bloomed through the decision of Liberty Fashion Wears Ltd v Bangladesh Accord Foundation and others(2016) where the High Court Division held that a plain reading of article 102(1) of the Constitution empowers the court to give directions or orders to any person irrespective of whether he is in the service of the Republic or acting merely in private capacity for the enforcement of any aggrieved person's fundamental rights. The court's validation for enforcing a claim by a private person against another, solely based on constitutional right,was a manifestation of'direct horizontal effect.'
It appears that there has not yet been a case in Bangladesh where a claim of right of freedom of speech has been made and successfully debated by one private party against another. However, recourse can be had to the case laws from other jurisdictions. For instance, in the United States of America, in the case of New York Times v Sullivan (1964), libel suit was filed against Times.The Alabama jury deciding against Times awarded damages to Sullivan. On appeal, the US Supreme Court found the libel award violative of constitutional protection of freedom of expression. Thus, although it was a libel suit between two private parties, constitutional protection of freedom of expression successfully came to play.
In the famous Luth case (1958) of Germany, Eric Luth, in an open letter criticised the film director Viet Harlam for his involvement in Nazi regime and called for a boycott of the latter's new film. The producer and distributing company obtained injunction against Luth. In turn, Luth made constitutional complaint of free speech. The constitutional court, despite the matter's being between two private parties, applied 'the indirect effect of constitutional right' to hold that the injunction objectively limited Luth's right to free speech.
The theory of 'indirect horizontal effect'regards constitutional rights as 'objective system of values' capable of advancing their effects in private affairs. The preamble pledge of the Bangladesh Constitution for securing fundamental human rights and freedom for all citizens, the incorporation of the supremacy clause (article 7) and the requirement of all laws to be consistent with the fundamental rights (article 26) can be understood to inhere a similar notion of 'objective system of values' and to equip the constitutional rights with an indirect horizontal effect. This notion is considered to impose positive obligations on the State to make sure that the fundamental rights are realised in practice. In case of freedom of speech,it requires the State to create an atmosphere where the right can be exercised effectively without any fear.
The anguished question as to the State's obligation had been raised by the Indian Supreme Court in S Rangrajan v P Jagjivan Ram(1989)- "what good is the protection of freedom of expression if the State does not take care to protect it? "Itwas further stated by the court that freedom of expression cannot be suppressed on account of threat of demonstration or threats of violence and the State cannot plead its inability to handle the hostile audience problem. Till date, no substantial step is reported to have been taken against those who posted death threats on social media against 10 Minute School.
As discussed, the constitutional jurisprudence of Bangladesh as it stands today makes room for both 'direct' and 'indirect horizontal effect' ofconstitutional rights. The latest stance of thecourt in Liberty Fashion case also points towards the shift inrecognising the constitutional rights' horizontal aspect. Now it is to be seen whether the recent clamp down on the online education platform's right of free speech andexpression gets the constitutional scrutiny that it deserves under the constitutional mandate of horizontality or it gets subdued by the impulses of the majority.
The writer is Assistant Judge, Bangladesh Judicial Service.