By Soli J. Sorabjee
February 14, 2013
Freedom of expression will continue to remain under siege unless all groups accept that people can have different opinions and beliefs in a free country
“Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it.” These stirring sentiments were expressed by Justice Chinnappa Reddy in a Supreme Court judgment pronounced in August 1986 which invalidated expulsion from school of students belonging to Jehova’s Witness faith. Regrettably, over the years, tolerance has been replaced by the rising menace of intolerance which strikes at various fields of human endeavour and creativity: writings, music, drama, paintings and movies.
Intolerance stems from an invincible assumption of the infallibility of one’s beliefs and a dogmatic conviction about their rightness. An intolerant society cannot tolerate expression of ideas and views which challenge its current doctrines and conventional wisdom. Consequently, unconventional and heterodox thoughts and views have to be suppressed. That is the prime motivation for censorship.
Extent of Dissent
One criterion to determine whether a country is truly democratic is the extent of dissent permitted. A liberal democracy is one in which all groups in the country accept the fact that in a free country, people can have different opinions and beliefs and shall have equal rights in voicing them without fear of legal penalties or social sanctions. Right to dissent and tolerance of dissent are sine qua non of a liberal democratic society.
Today we have reached a stage where expression of a different point of view is viewed with resentment and hostility and there are vociferous demands for bans. The banning itch has become infectious. Sikhs are offended by certain words in the title of a movie; Christians want the movie, The Da Vinci Code, banned because they find some portions hurtful. The ban was struck down by the Andhra Pradesh High Court. No one dare write an authentic and critical biography of a revered religious or political leader. The American author James Laine who wrote a biography of Shivaji in which there were unpalatable remarks about Shivaji was sought to be prosecuted which was quashed by the Supreme Court. Worse, the prestigious Bhandarkar Institute at Pune where Laine had done some research was vandalised. That was mobocracy in action. The exhibition of M.F. Husain’s paintings was stopped by intimidation followed by vandalism of the premises. The exhibition The Naked and the Nude at the Art Gallery in Delhi is threatened with dire consequences because it is considered obscene by the Vishwa Hindu Parishad women’s wing. The musical performance by a teenage girl rock band in Kashmir was coerced into silence because the music was termed un-Islamic by a popular religious leader. There are media reports that Mani Ratnam’s latest movie Kadal has come under fire on account of Christian ire that it has ‘hurt’ the feelings of the community. One wonders whether we are hell bent on emulating the Taliban.
Fortunately, our Supreme Court has been a valiant defender of freedom of expression. The well known actor Khushboo faced several criminal prosecutions on account of her remarks on premarital sex and its prevalence in metropolitan cities which were considered to be against the dignity of Tamil women and ruined the culture and morality of the people of Tamil Nadu. The Supreme Court quashed the criminal proceedings on the ground that “under our constitutional scheme different views are allowed to be expressed by the proponents and opponents. … Morality and criminality are far from being coextensive. An expression of opinion in favour of non-dogmatic and non-conventional morality has to be tolerated and the same cannot be a ground to penalise the author.”
The movie, Bandit Queen, was banned on the ground of obscenity because of the very brief scene of frontal nudity of the bandit Phoolan Devi in the movie. The Supreme Court struck down the ban and ruled that nakedness is not per se obscene. The Court emphasised that the Censor Tribunal which is a multi-member body comprised of persons who gauge public reactions to films had approved exhibition of the movie. This aspect was also highlighted by the Supreme Court in its judgment in T. Kannan.
Exhibition of movies is included in the fundamental right of freedom of expression guaranteed by the Constitution. One of the reasons frequently assigned for imposing a ban is that it hurts the sentiments of a certain section of people in society. ‘Hurt feelings’ is a slippery slope for banning expression. Any book or movie or play which criticises certain practices and advocates reforms will ‘hurt’ the sentiments of the status-quoists. For example, the abolition of Sati or the abolition of certain superstitious practices in the name of religion. Criticism should not be equated with causing offence. In the context of hurt feelings, the Supreme Court has repeatedly laid down that the standard to be applied for judging the film should be that of an ordinary man of common sense and prudence and not that of “hypersensitive” persons who sense offence in every scene or perceive hurt in every statement. The right method is to vigorously refute the criticism by rebutting its reasoning and data on which its conclusions are based.
Another ground for imposing a ban is the bogey about apprehension of breach of law and order and outbreak of violence in view of threats by certain groups about the exhibition of the movie. As far back as November 2000, the Supreme Court in KM Shankarappa’s case categorically ruled that “once an expert body has considered the impact of the film on the public and has cleared the film, it is no excuse to say that there may be a law and order situation. … In such a case, the clear duty of the government is to ensure that law and order is maintained by taking appropriate actions against persons who choose to breach the law.”
The same bogey of breach of law and order and violence was raised by the State of Tamil Nadu regarding exhibition of the movie, Ore Oru Gramathile. The Supreme Court firmly rejected the State’s plea in its decision in Rangarajan in March 1989 in these words: “Freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation.” The Court reiterated that “it is the duty of the State to protect freedom of expression. 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.” It is noteworthy that the Supreme Court endorsed the celebrated dictum of the European Court of Human Rights that freedom of expression guarantees “not only views that are generally received but also those that offend shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no democratic society.”
During the hearing of the writ petition regarding the movie Dam999, certain observations were made orally off the cuff by the Supreme Court about law and order problems that may arise because of the exhibition of a movie. The writ petition was in fact dismissed as infructuous because the period of the ban had expired. There is no mention or discussion of the decision in Rangarajan at all in the operative part of the Supreme Court order. The salutary principle laid down in the Rangarajan decision has been approved in three subsequent decisions of the Supreme Court. It firmly holds the field and has not been diluted at all.
In Contravention of the Law
Banning of the movie Vishwaroopam by the State of Tamil Nadu was clearly in contravention of the law laid down by our Supreme Court. The sad part is that Kamal Haasan, producer of the movie, agreed to carry out cuts in the movie as demanded by certain Muslim groups. It was not a settlement but surrender by Mr. Haasan albeit for pragmatic reasons. However it lays down a bad precedent because it concedes to certain intolerant groups demanding a ban, a veto or appellate power over the decision of an expert body like the Censor Board.
Our Constitution prescribes certain fundamental duties to be performed by citizens (Article 51-A). One duty of paramount importance which should be performed is the duty to practise tolerance. Otherwise democracy, a basic feature of our Constitution, will be under siege and the cherished right to freedom of expression will be held hostage by an intolerant mindless mob.
Soli J. Sorabjee is a former Attorney General of India