FoE, or ‘Freedom of Speech and Expression’, is a topic which was especially triggered and has been talked about globally after the Charlie Hebdo incident. There have been quite a few incidents in India as well which have resulted in acrimonious debates giving further credence to ‘The Argumentative Indian’ notion, or might I add, ‘The Irreconcilable Indian’. FoE is one hotly debated topic because it is intrinsic to people’s thoughts and inextricably linked to the idea of freedom in totality. It probably wouldn’t even be in the discussion if not for the vagueness of this phrase.
The problem comes here, when the nuances of the argument in any particular case of breach of FoE are not understood and the matter is obfuscated, to suit one’s standpoint. Obfuscations don’t a law make. Neither do exceptions. It is best to understand the gravitas of the Fundamental Rights as entailed in the Indian Constitution, before we can decide where to draw the line.
Indian Context
Constitutional provision
Article 19 (1) (a) of the Constitution says, “All citizens shall have the right to freedom of speech and expression.”
Article 19 (2) states that – Nothing in sub-clause (a) of the said clause shall affect the operation of any law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions in the interests of
- Sovereignty and integrity of India
- Security of the State
- Friendly relations with foreign States
- Public Order
- Decency or Morality
- Contempt of court
- Defamation
- Incitement to an offence.
Clearly, from both the clauses of the article we can understand that this freedom is not absolute. There is a reasonable caveat attached to it and for good reasons. So, first of all, those who endlessly whine about the breach of FoE are advised to read up for the Constitutional validity of argument, cause it’s neither going to be absolute nor to their whims and fancies. Secondly, the caveats in place are both in terms of national security as well as conduct in social sphere. There’s a moral and rational check in place. We may object to that, but we may not deny that. Although, the ambiguity still remains – Where and how to invoke any of the restrictions? For this purpose, laws/statutes were made and are invoked from time to time as has been guaranteed to the State by the Constitution.
Penal Code
In such a scenario, the IPC/CrPC has statutes like Section 295 A, Section 153A, Section 66A, etc., in place. These act as a rulebook for the law enforcers. But there’s a dilemma there, like always. These statutes are not fundamental, not part of the constitution either. Therefore, they can be challenged in the courts, as they quite often are. Even in the social sphere, some laws are considered draconian like Section 66 A, which bears punishment for sending offensive messages through communication service, etc. The problem with such a law is in its broad-based understanding and subjectivity, which brings in the moral dimension so as to judge which content is offensive or not.
On the ground
All of this leads to 2 significant eventualities,
- Dissension with the given laws
- Curious interpretation by the Judiciary.
While as a people, the Indian society has well and truly accepted the Constitutional provisions and rarely challenge the wisdom of the Fundamental Rights, there are vociferous debates on Penal Code laws which are said to be an import of Macaulay’s laws during British Raj and often found anachronistic.
The Supreme Court of India is the final interpreter of the Constitution and also the ‘Court of Precedence’. This means that any judicial pronouncement becomes a precedent for not just the lower courts but also the Supreme Court itself. Yet, Supreme Court alone has the power and wisdom to take a position contrary to its earlier pronouncements. What this implies is that the Supreme Court is an ever-evolving organization and the Constitution is being re-read and differently interpreted time and time again. The only constancy in their approach has been the ‘Doctrine of Basic Structure’ which the SC considers sacrosanct.
A person can directly move the SC in case of breach of FoE. Article 32 of the Constituiton gives one the ‘Right to Constitutional Remedies’. Similarly, a case can be filed against a person/institution when any FR, like FoE, is breached, even though the defendant perceived it to be within his/her FR at the first place. This is where the whole question of ‘FoE’s stepping over each other’ comes in. Absolute freedom, for all practical purposes, is anarchy and that is not desirable.
FoE Transgressions
The most discussed cases of FoE violations would be in the fields of art and literature. For example – Wendy Doniger, MF Hussain, Salman Rushdie, and more recently Charlie Weekly (Hebdo) and recent movies like PK.
All of these are symbolic of one thing, intolerance and sensitivity towards religion. Having said that, let’s look at each of the cases to understand the FoE violation starting with the most recent first. Charlie Hebdo is a weekly satirical cartoon newspaper and has long been lampooning, parodying, and satirizing religious and political figureheads. France ensures superlative FoE for its citizens and is one of the most liberal societies. In France’s culture, satirizing is not restricted. Charlie Hebdo has, in the past, shown equal disdain towards all Abrahamic religions including Judaism, Christianity and Islam. They’ve made cartoons on Jesus as well as Prophet Muhammad. Inspite of repeated warnings and death threats by Islamist outfits, they didn’t relent. Alas, a couple of cowards massacred the editor and others in one of the most despicable and gruesome acts seen in Paris in decades.
While, the debate raged on the topic of FoE, I’d beg to differ. Charlie Hebdo is within its rights to publish outrageous cartoons and it has the legal backing of the French Laws. In fact suits were filed against them, but to no avail. But the ‘aggrieved’ party, which in this case is the whole community of Muslims, has to ensure that their sensitivity toward religious figureheads does not translate into passive endorsement of acts of hatred in the name of religion. I’d like to emphasize that majority of Muslims do not endorse such violence, yet, they’d take out rallies in protest of cartoons, blasphemy and not against wide-plagued terrorism, which is the ultimate blasphemy. One may not approve of the cartoons, one is within his rights to get offended, but one may not passively/actively endorse violence. It is not just a FoE violation but a ‘Right to Life’ violation, which should be inviolate.
‘Terror has no religion’ is the popular aphorism these days. This is nothing but a glossing of reality. Terrorists (Jihadists) do have a religion and all of this is being validated by some contentious verse of Qur’an, interpreted by the clerics, not novices. Therefore, it is not a matter of FoE that we should be protecting but a matter of humanity that we’d be protecting! Reform is the word you’re looking for, if you haven’t got that already.
Food for thought – There’s little or no FoE granted in Islamic Republics. Ever wondered why? Or is that cool?
Coming back to India, the pulping of the book of Wendy Doniger and the exile of MF Hussain was put in perspective to ‘showcase’ that India is intolerant to FoE as well. This was directed primarily at the lumpen elements of Hindutva outfits. They are a menace to society without a doubt. But to draw parallels, deliberately and repeatedly, with acts of terrorism is a bit of a stretch, in fact, obfuscation and misrepresentation. Yet, curiously, in both the cases of Wendy and MF Hussain, it weren’t only these lumpen elements which curbed FoE, but actually legal suits.
Now, there’s a section of society which insists FoE should be inviolate and legal suits are antithetical to that. I’d beg to differ again. We are not living in a perfect society with all the sections/factions of society having the same morality and value system. We can only have a blanket legal system and minimum ethical standards, practically. Yes, in a society we should be more tolerant to even obnoxious and irreverent texts and paintings as a form of expression. But one’s right to get offended is also an expression of FoE, although, it ought to be in a dignified and humanly manner giving due respect to what you disagree with. Legal suits are the mark of protest and such dissent is acceptable to a democracy rather than vandalism and/or extremism. The canvass of tolerance should ultimately expand, without a doubt. Why should one be touchy to defend their expression when challenged?
Let’s check the controversy around the movie, PK.
What is the big deal in questioning religion? You can’t assign motifs to the movie for selectively picking on Hinduism and not on other religions. It did prick other religions but surely not as much as Hinduism. So what? I completely stand by the movie even if I could sense it didn’t showcase many of the hypocrisies, dogmas of other religions. This is where as a society the envelope of tolerance has to be pushed. More importantly, the movie is not even against Hinduism but against the fake god-men who pose as the custodians of religion. It is about time we address that! At the same time, the constitution provides for freedom to dissent within the precepts of democracy. It is this basic principle which reaches out to the maximum number in the maximum possible ways. It is the principle of reasonability.
Bigger Picture
What people forget is that no religion is above scrutiny and above all, anybody who deliberately (if at all) ridicules or denigrates a religion exposes his own pettiness and crassness. Again, agreed that FoE allows you to get offended, but honestly, if you can be convinced that some mongrel can beat your religion hollow, then probably it’s you who has a problem.
As an evolving society and a relatively young democracy, we are grappling with this issue as a sign of the changing times. Adapt, we must. All we should be fighting against is hypocrisy of intelligentsia and extremism, the actual blasphemy.
astronomick 