By Varghese K. George, Satish Nandagaonkar, Omar Rashid
January 18, 2015
Pope Francis’s recent statement that he would punch anyone who insulted his mother reminded one of a heated discussion on Salman Rushdie’s The Satanic Verses by a group of train passengers. As the dispute got animated, a Muslim youth enraged a Rushdie supporter by making offensive comments about the latter’s parents. Then, apologising for the outrage, the young man said: “I did this only to give you a sense of the outrage that Muslims feel. What I just told you is a passage from The Satanic Verses, replacing the names of the Prophet and his wife with your father’s and mother’s. For a Muslim believer, the Prophet and his wife are manifold more respected than his own parents.”
However, what is offensive is a matter of subjective feelings, and therefore, cannot be a reason for restricting an individual’s freedom of expression, which must be absolute, the liberal opinion concluded, after the massacre of Charlie Hebdo cartoonists who drew offensive cartoons.
“My right to free speech has to be absolute, and if you are offended, you have the right to respond. But if we start placing restrictions, we are shaking the foundations of tolerance for views that one finds disagreeable, and tolerance has to be one of the foundations of a true democracy,” Rakesh Sharma, documentary film-maker, says.
The cartoonists apparently drew with the purpose of making Muslims immune to the ridicule heaped on the Prophet. Around the same time, in yet another episode in India, the writer Perumal Murugan has been forced into a creative exile as a section of society felt “hurt” over one of his works.
Both events have been debated primarily as a question of freedom of expression, but the more fundamental issue at stake is the terms of engagement between various cultures in a multicultural society. That similarity apart, the two incidents highlight divergent challenges in their respective contexts of France and India. In France, the cartoonists were promoting a French culture in which individual freedoms are absolute and collective sensibilities overlooked. Murugan’s case is part of an ongoing political project to eradicate multiple voices for the sake of a grand cultural narrative, a claimed collective hurt shutting out an individual.
The Charlie Hebdo episode questions the desirability of an assimilative approach to diverse cultures; Perumal Murugan’s literary suicide represents the dangers that lurk behind India’s multicultural existence.
Inclusive state, inclusive society
While in most Western societies, individual rights are absolute and community rights limited or non-existent, in India, the situation is the opposite. While individual rights are not respected, community is valorised and glorified in India. Individual rights still do not command social legitimacy as opposed to the sentiment of “collective hurt.” The “hurt sentiment” phrase is often quoted to define or represent the feelings of a larger group and rarely of an individual, when outrage is created. And this is when vested interests can latch on to “hurt sentiments” to accentuate any act that supposedly critiques a group or tradition or culture as it has happened in the case of Murugan.
Experts say there is a clear exploitation of religiosity in projecting “hurt sentiment.” Whose hurt sentiments, the question is. “Individual right is not established while community rights, which are valorised and glorified, are easy to manipulate,” says Subhash Gatade, author.
It is not that the individual’s right to criticise others, including communities and religions, should be made absolute. “Criticism should be given space, but it should be done under a certain sense, under a limit. There are no two views to blocking out inflammatory material, but a censure to all forms of criticism is not the solution. We must give ‘soft directions’ to people and not merely censure,” says Badri Narayan, Professor at the G.B. Pant Institute of Social Sciences, Allahabad.
What is happening in India is perhaps one extreme, where even stray references questioning beliefs and faiths are censured, academic commentaries on religions and social groups are banned, even as vested interests, groups and political parties play upon fears, alienation and differences between communities for gains. While real offenders who peddle hatred through speeches and create social disharmony get elected to legislative bodies and find protection routinely, rationalists are silenced by death or exile. To cite one recent example, anti-superstition campaigner Narendra Dabholkar was brutally killed in Pune in 2013 by people who considered his ideas “offensive.”
That is why good laws are necessary but not sufficient for the building and sustenance of a multicultural society, says Anand Patwardhan, film-maker. “I do not think the law in India on the subject of freedom of expression needs substantial revision, but it still needs wisdom to apply it without prejudice. Having been on the receiving end when several of my films and those of other colleagues encountered attempts at state censorship despite the fact that our work explicitly promoted secular, democratic values and was factually correct, I am reluctant to call for greater control mechanisms than those that already exist. Outright racist, malicious and bigoted content apart, all expression must be legally permissible. But outside the legal frame, a lot more work needs to be done culturally to embrace our pluralist society with all its angularities and difference,” he says.
Though laws are an important part of maintaining communal harmony and restricting hate, more engagement at the social level will play a big role in bridging gaps, particularly in the context of growing suspicion about Muslims. The first step in building trust between communities is to stop ghettoisation, which Mr. Badri Narayan says defines religious identities and leads to regimentation, thereby increasing alienation and leaving groups vulnerable to communal mobilisation.
To ensure harmony, Anand Patwardhan says, there must be acceptance of other religion but as long as it does not impinge upon others’ freedom.
T.K. Oommen, Professor Emeritus, Jawaharlal Nehru University, says: “If a Muslim woman wears hijab in France, does it anyway impinge on anyone else’s freedom or rights? As long as one’s cultural expression is not harming anyone else, there is no reason why it should be disallowed.”
Director-General of Police, Maharashtra, Sanjeev Dayal recently told a newspaper that to stop radicalisation of Muslim youth, he had suggested to the Maharashtra government to take inspiration from the Singapore model of housing, which mandates housing complexes with a fixed percentage of different communities — in its case, Malay, Chinese and Indian owners. While our cultural sensibilities and logistical limitations may not allow this model to be replicated in India in its entirety, Mr. Gatade endorses the DGP’s views and says that engaging the people at the community level is the right approach. “The State and the political parties can enforce laws, but as importantly, a dialogue between communities must be initiated,” he says.
Mr. Gatade says the judiciary must become proactive and take suo motu action in cases of hate speech, which have the potential of triggering communal tensions. “A lot of the problem arises from not knowing each other,” he says. “Intolerance will lead to violence, so we must learn to give space to all cultures. There is a need for a people’s movement and increasing awareness about each other,” Mr. Badri Narayan says.
It is a difficult situation when political interests manufacture the feeling of being offended. Artist Atul Dodiya cites the example of painter M.F. Husain. “Husain was a modern painter, and if you see his Madhuri Dixit or Ganesha or Mother Teresa series, there is no sensuality in his painting. He was a formalist and painted without stylisation. He never painted Mother Teresa’s face in his paintings, but used the space to convey certain darkness. But, that does not mean he was showing disrespect,” Dodiya says. “Husain was misunderstood. He was not a calendar artist. He was a modern painter. If someone feels he was depicting Hindu goddesses as nude, it is very difficult to explain why. A fixed law would not help, true education about modern art would,” Dodiya says.
When political groups play the communal card, following the thumb rule of dealing with offensive material — avoid it — becomes impossible. A small minority begins to adjudicate what truly represents a particular culture or tradition and takes up cudgels on its behalf.
Immigrant-receiving societies are increasingly multicultural and correspondingly, the challenge of squaring notions of individual freedoms allowed by Western modernity with demands of cultural rights of various groups is also increasing. In India, the challenge is in the form of various political forces trying to negate diversity by homogenising projects, seeking to shut out alternative voices and narratives.
“The challenge is to strive for a balance where individual freedoms are protected, but in the process, no offence is caused to collective sensibilities. When you talk about causing offence, we have to understand that there is also a hierarchy of sensitivity regarding various aspects within a particular culture — some things are sacred, some things are ritualistic. An order based merely on individual freedoms cannot be sustainable in a multicultural society,” says Professor Oommen. “Perhaps, one way out is that restrictions that we impose in our interpersonal interactions could apply in interactions between communities. We don’t defend on grounds of freedom, a person abusing another. If that is the case, should we allow a person to abuse a community?” asks Shajahan Madampat, a cultural critic.
The ‘reasonable’ man vs. the ‘hypersensitive’ man
January 18, 2015
In India, the fundamental right to free speech and expression is subject to the mercy and intellect of the “reasonable” man. It is not an absolute right, unlike in the West, but restricted and measured by the ambiguous scales of public order, decency and morality of men, their elected representatives and judges.
The Constitution makers have left it open for the courts to interpret, by the standards of reasonable men, if an expression is art, literature, satire, insult, ridicule or offence.
Time and again, the constitutional courts have interpreted what a “reasonable man” is — “an ordinary man of common sense and prudence and not an out-of-ordinary or hypersensitive man.”
The Constituent Assembly debates were not without extensive discussions about imposing reasonable restrictions on the fundamental rights of freedom.
While some of the founding fathers felt that by imposing restrictions, they were taking away with “one or five hands” what they gave to the citizens with the other, their compatriots justified that a reasonable fetter on “Rights of Freedom” will not “destroy the liberties of the people.”
The wounds of Partition were still fresh, the people had seen the rise and fall of Fascism in Europe — this fledgling, multi-religious country could just not afford another instant of communal disharmony. Shackling free speech was just a small price to pay to ensure that, or so they thought.
One of them, Algu Rai Shastri, felt that “freedom by its very nature implies limitations and restrictions.”
“The dancer dances to the measure of clapping. The poet is bound by the significance of words. A dancer dances according to certain fixed timings and never makes a false movement. His movements are in harmony with the tal. When a nation or a community attains freedom, it begins to bear a great responsibility on its shoulders. We cannot, therefore, say that the restrictions that have been imposed will retard our progress. Good citizenship implies restrictions,” Shastri argued in the Constituent Assembly.
But Amiyo Kumar Ghosh struck a cautionary tone against imposing reasonable restrictions. He felt the checks “should be very precise, clear and not couched in ambiguous language and left to the courts for decisions.” He thought how it would take “centuries” for the Supreme Court to exactly say what words like reasonable restrictions in the “interests of general public” or “public order” meant.
Ghosh voiced apprehension about the “wide powers” such vagueness would leave in the hands of the Legislature.
So the right to freedom of speech and expression guaranteed in Article 19 (1) (a) escaped the ambiguity of “reasonable restrictions” and remained unfettered for 15 months of the working of the Constitution until the Constitution (First Amendment) Act, 1951 was passed.
The 1951 Act modified free speech and expression and made it subject to reasonable restrictions of Article 19 (2) to preserve public order, decency and morality.
In his introduction to the First Amendment, Prime Minister Jawaharlal Nehru explained why it was imperative to modify the right to free speech and expression in the “interests of the general public.”
“During the last 15 months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements especially in regard to the chapter on fundamental rights. The citizen’s right to freedom of speech and expression guaranteed by Article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence,” Nehru said.
With this, free speech and expression was again left open to the “reasonableness” of the judges and legislators.
The trust placed in modern-day legislators by Constituent Assembly members like K. Hanumanthaiya is being increasingly tested in recent times. Hanumanthaiya supported reasonable limits on the belief that legislators, as representatives of the people, would tolerate only such restrictions that would be in the interest of the people.
The ongoing hearing of the Shreya Singhal vs. Union of India case in the Supreme Court is an example of how his trust in legislators may have been misplaced. In his arguments in the case, civil rights lawyer Prashant Bhushan details the “chilling effect” Section 66A of the Information Technology Act, 2000 has on free expression.
He narrated how two girls, Shaheen Dhada and Rinu Shrinivasan, based in Thane district of Maharashtra were arrested under the Act for allegedly posting and ‘liking’ a comment against the shutdown in Mumbai following Shiv Sena leader Bal Thackeray’s death on their Facebook accounts.
Over the decades, the courts have given mixed signals while struggling to strike a balance between free speech and restrictions on it.
In March 2014, a Bench led by the then Chief Justice of India, R.M. Lodha, dismissed a plea by advocate M.L. Sharma for a direction to curb hate speeches.
“We cannot curtail the fundamental rights of people,” Chief Justice Lodha had said. “It is a precious right guaranteed by the Constitution. We are a mature democracy and it is for the public to decide.”
This when only a year earlier another Bench led by one of his predecessors, Chief Justice Altamas Kabir, had issued notice to the Election Commission on a public interest litigation petition by Pravasi Bhalai Sangathan to curb leaders from delivering hate speeches.
In 1957, in Ramji Lal Modi vs State of Uttar Pradesh, a five-judge Bench headed by the then Chief Justice of India, S.R. Das, fortified Section 295A of the Indian Penal Code (blasphemy law), a British-regime law, against the right to free speech.
“It (Section 295A) only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of a class of citizens,” the judgment observed.
In State of Karnataka vs. Praveen Bhai Thogadia of 2004, the Supreme Court said whether a person had “malicious intention” to insult another’s religion can be fathomed from his past conduct.
In the S. Rangarajan case, the court observed that the right to restrict free expression should be exercised only if it acted like a “spark to a power keg” and not if the “anticipated danger is remote, conjectural or far-fetched.”
The Supreme Court’s overriding concern, over the years, has been that free speech should not affect communal harmony. The ground rule has been that religious harmony cannot be sacrificed at the altar of free expression.