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Tuesday, May 24, 2022

Freedom’s our defence

If we legitimise the taking of offence there will be more provocations,not less

Written by Pratap Bhanu Mehta |
March 4, 2010 3:48:15 am

Few things are more crooked in India than the discourse on free speech and its relation to violence. Rather than focusing on the basic framework governing speech,the debate quickly descends into the politics of double standards. There is no question that M.F. Husain’s departure from India is a serious indictment of India’s claims as a liberal democracy,and especially the ability of the state to protect those exercising their rights. But this fundamental issue was obscured by three issues that govern the politics of double standards.

The first is,could Husain have gotten away with taking artistic liberties with Islam the way he did with Hindu icons? On this view free speech cases are not about free speech. They are the tests of two things. Does the state favour one community over the other in the way it interprets what is offensive and what is permissible? And these are occasions to expose how intolerant other religions are. So free speech is inherently tied to the politics of communalism. Neither Hindutva groups,nor Islamic groups who take offence at any lampooning of Islam,have an interest in delineating the justifiable contours of what counts as offensive speech. What they have rather,is an interest in demonstrating their power.

Second,what exactly are the protocols that govern offensive

art? Are these standards applied uniformly across different

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domains? And third,whether Husain’s acceptance of Qatari citizenship is exactly a ringing endorsement of the values of a liberal democracy? These political questions will continue to cloud the fundamental issue: can India as a society handle freedom of expression in a way that befits a liberal democracy?

The incidents in Shimoga have once again brought this question to the fore. There is a technical issue of whether Taslima Nasreen’s piece was used with proper authorisation and in proper context. But the ease with which the appearance of the piece sparked off violence by intolerant groups ought to be an abomination to our democracy. But the state’s reaction is typical: legitimise the violence by classifying the purported article as the culprit rather than those who took offence at it and engaged in violence. While our laws on speech undertaken with the malicious intent to give offence,or those governing attempts to produce enmity,are well intentioned,they have made the climate for free speech more,rather than less,precarious.

First,the simple fact that the state signals that it will easily punish those who engage in offensive speech creates incentives for offence mongering. Instead of sending a signal that a very high bar has to be crossed before speech is proscribed,the state essentially tells the people: if you can incite violence,or show that you are deeply offended,you will have your way. Indian laws are not protecting us against offensive speech; they are inciting us to produce it,and in turn provoking bans. Second,the jurisprudence on free speech in India is a disastrously mixed bag. If Dharamkaarana and James Laine’s book Shivaji can be banned for being offensive,what will prevent groups from mobilising to have other things banned as well?

While the Delhi high court gave a salutary judgment in the Husain case,the courts have been unduly squeamish about protecting free expression. This squeamishness can be seen in a deeply confused recent high court judgment: R.V. Bhasin vs state of Maharashtra. While the judgment,based on a plausible reading precedent,banned a book,Islam: A Concept of Political World Invasion,the normative and methodological claims in the judgment tell you how precarious free speech is. While the court makes expansive rhetorical claims on behalf of free speech,it equally makes expansive jurisprudential claims on restricting it. So under Section 153 of the IPC for example,it is “no defence that the writing contains a truthful account of past events or is supported by good authority.” No wonder even works of scholarship can be banned. In terms of incitement to violence it reiterates a rejection of the “clear and present danger test”; even a remote possibility is sufficient to invite a ban. Third,it does what a court should try and avoid. It directly engages in an interpretive battle with the petitioner over certain ayats of the Quran,trying to produce an “authorised” interpretation. This is disturbing because it frames the issue of religion in a bizarre way. Indian courts keep going to great lengths to show that there can never be anything offensive or bizarre in a religious text (and come up with claims like no religion can even preach violence,all religions are progressive if not the same and so forth). In short,courts confirm an ideology of respect for religion that emboldens those who claim they are offended. The particular book in question has some insulting stuff in it. But the court casts the issue in an unhelpful way. It says criticism of any religion is permitted so long as it is “academic”. Really? Lampooning and heaping insult are as much weapons of progress as anything. Imagine the poor philosophes of the Enlightenment achieving progress through “academic” criticism. While the court is right in its concern for hate speech,it has given too much leeway to those who take offence.

P. Ananda Charlu,as early as 1886,had prophesied how mischievous Section 153 of the IPC would prove to be. He described it as “a dangerous piece of legislation by necessitating the government to appear to side with one party against the other. In my humble judgment it will only accentuate the evil which it is meant to remove. Far from healing the differences which still linger,or which now and then come to the surface,it would widen the gap by encouraging insidious men to do mischief in stealth.” Both prophecies,that clauses on offence will induce rather than diminish competitive communal politics,and create a culture of mischief,have turned out to be true.

A lot of representations of religion are needlessly gratuitous. But if we legitimise the taking of offence there will be more provocations,not less. The law should send a clear message that we live in a world where people cannot be protected from assorted things like Danish cartoons,Husain paintings,burqa lampoons or speculative novels on godly love. And religious believers commit the ultimate blasphemy by thinking that they need to protect their gods rather than their gods protecting them.

The writer is president,Centre for Policy Research,Delhi

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