Screening intolerance

In a genuine democracy there should be freedom also for the thought we hate. The right to dissent is the very essence of democracy. Expression of opinion, which is contrary to the official stand of the government and is unacceptable to it, cannot be suppressed. Our Supreme Court has recognised that the voicing of a contrary opinion is a powerful and wholesome weapon in the democratic repertoire. Our Supreme Court in the Jehovas Witnesses case has reminded us: 8220;Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance. Let none dilute it.8221; Dissent cannot be penalised in a liberal pluralistic society.

The implications of this pernicious attitude are perturbing. Taken to its logical conclusion, no writer or public figure who does not endorse the stand of the Gujarat government can participate in a literary conference or deliver a lecture. An economist who has with facts and figures demonstrated the untenability of the Gujarat government8217;s claims may not be permitted entry into the state. Traders and business people who do not toe the official line could face commercial boycott and social ostracism. And pray, what happens to a lawyer who has strongly opposed the Gujarat government8217;s stand and supported the Narmada Bachao Andolan? Will he be prevented from appearing in any of the courts in Gujarat, including the high court?

The BJP8217;s diktat entails severe financial and other consequences to the actor. Worse, the threat issued to owners of cinema halls where exhibition of the movie is scheduled is clearly violative of their fundamental right to carry on trade and business. In this situation, the state cannot adopt an indifferent attitude. Its silence is culpable. It is settled law that the obligations of the state in the matter of fundamental rights are not merely negative. It is a positive duty of the state to prevent invasion of fundamental rights of citizens by non-state actors and take all requisite measures in that behalf.

A Tamil movie, Ore Ore Gramathile, was sought to be banned on the ground that its theme was severely critical of the reservation policy in favour of Scheduled Castes and Scheduled Tribes which was deeply offensive to their sentiments. The Board of Film Censors had certified the film as fit for exhibition. There were protests for banning the movie coupled with threats of violence like burning the theatre and releasing snakes if the movie was exhibited. The matter reached the Supreme Court. The argument of the authorities that the movie needed to be banned for preventing infraction of law and order was rejected by the Supreme Court. Justice Jagannath Shetty, speaking for the Bench, laid down an extremely important principle: 8220;It is the duty of the state to protect the freedom of expression since it is a liberty guaranteed against the state. The state cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.8221;

The Court further ruled that: 8220;If the film is unobjectionable and cannot constitutionally be restricted under Article 192, freedom of expression cannot be suppressed on account of threats of demonstrations and processions or threats of violence. That would be tantamount to negation of the rule of law and surrender to blackmail and intimidation.8221;

The Supreme Court approved the observations of the European Court of Human Rights that 8220;freedom of expression protects not merely ideas that are accepted but those that offend, shock or disturb the state or any sector of the population. Such are the demands of the pluralism, tolerance and broadmindedness without, which there is no democratic society.8221;

No doubt, it is necessary to maintain tranquillity but surely not by sacrifice of liberty. In order to prevent a threat to law and order, the state should take strong and effective action against the lawbreakers and not suppress fundamental rights, and particularly freedom of expression, which it is the duty of every democratic state to uphold. This virus of intolerance must be resolutely combated and exterminated lest the infection of fanaticism spreads further; and our democracy comes under siege.

The writer is a former attorney general for Indiaeditorexpressindia.com