Updated: June 18, 2020 2:51:23 pm
In the wake of Ramjas violence and debates burgeoning around Gurmehar Kaur, freedom of expression in India is being debated intensely. Union ministers Kiren Rijiju and Venkaiah Naidu amply provided their opinions on the subject, with Naidu reminding all that “Right to Freedom [of expression] does not give you the right to offend”. In this context, it may be helpful to revisit the fundamental right and the constitutional caveats to it.
Article 19(1)(a) of the Constitution makes the “right to freedom of speech and expression” a fundamental right. But it is not an absolute and comes with qualifiers. The First Amendment to the Constitution, made on June 18, 1951, states that “interests of the sovereignty and integrity of India, the security of the state, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence” will be paramount and that freedom of expression will not be unconditional.
This amendment was provoked after an incident in 1951 in which journalist Romesh Thapar’s left-leaning magazine Cross Roads was initially banned for being critical of Nehru’s policies in Madras. Thapar approached the Supreme Court which overturned the ban, but independent India’s first government soon followed with an amendment of the fundamental right with the above caveat.
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Several clauses within the Indian Penal Code since then make it contingent upon the person expressing himself or herself not to “hurt sentiments” or “cause public discord”, something that is open to broad interpretation. Section 295(A) and 298 criminalise acts and speech intended to outrage religious feelings, including words, signs, visible representations”. Who is motivated by ‘deliberate malice’ is left for the court to decide. There are also other laws like the IPC section 124A, popularly known as the Sedition Act which criminalises words, signs and visual representations that “ bring or attempt to bring hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law [in India]”
In Jaipur Literature Fest of 2013, Sociologist Ashis Nandy, a prominent public intellectual, was booked under the Prevention of Atrocities Act which protects SC and ST sections from representations and speech they find offensive or which mocks or insults them. The reason for it was a comment pulled out of the context of his panel discussion (Nandy had made a nuanced argument about the prevalence of corruption amongst the Dalit classes) — even though right after the panel, upon the insistence of the organisers, he issued an apology for any feelings hurt by his statement.
The Supreme Court which finally stayed Nandy’s arrest, didn’t do so without reprimanding Nandy and stating in no vague terms that statement and comments (even if made in the spirit of a panel discussion), if they disturb others, could be penalised. “Every citizen has right to free speech but not at the cost of others. We are not at all happy with the way the statement was made. Why do you make such a statement in the first place,” the bench said, according to a Times of India report. Citing the issue, Suketu Mehta wrote in the New York Times, “[Nandy’s] remarks, arguably, were no more provocative than an American professor’s saying that some early Irish and Italian immigrants joined corrupt political machines like Tammany Hall to climb the socioeconomic ladder“.
2017 also saw a group of Islamic fundamentalists bully Jaipur Lit Fest organisers into a commitment of never inviting Taslima Nasreen in future. Last month, Jodhpur University Professor Rajashree Ranavat was suspended for organizing a conference that included Left-leaning JNU Professor Nivedita Menon (among other scholars with center and rightward leanings) due to vehement demonstrations by the RSS-affiliated ABVP. The point of the matter is that it is easy to intimidate scholars, academicians and students engaged in discussions — especially on any subjects related with India’s fault lines of religion, caste, tribes and states with troubled histories. Such attitudes encourage thin skins and taking offense to ideas, which are frequently dragged out of their context and spirit. On one hand, it is easy to target those citizens who at best, in case of academicians, writers and artists, wield soft power of ideas. While on the other hand, there is no restriction acting on the likes of ministers like Anil Vij courting discord through abominable comments like, “Those who support Gurmehar Kaur should go to Pakistan”.
One isolated placard out of several held by Gurmehar Kaur in the course of an anti-war appeal from April 2016 led ministers Naidu and Rijiju to categorically paint Kaur and the students targeted by the ABVP violence as pawns in the hands of “Leftists” who were misusing freedom of speech by “abusing the motherland”. There have been no confirming reports as to whether the students violently attacked by the ABVP, were criticising certain university, state or army policies in troubled regions (which would be well within their rights — provided it were peaceful and not inciting violence or advocating ‘independence’) or chanting ‘separatist’ slogans with the goal of breaking the nation into pieces, as unilaterally alleged by ABVP and its supporters. The clean chit provided by investigating officers yesterday to former JNUSU president Kanhaiya Kumar, who was charged under the Sedition Act last year, shows that initial allegations of this nature cannot be taken on face value.
The right ‘to be offended’ has variously been exercised at convenience to shut down and punish any contrarian voice. Before it was struck down by Supreme Court in March 2015, the IT Act of 2000 contained the controversial Section 66A which defined the punishment for sending “offensive” messages through a computer or any other communication device such as a mobile phone or a tablet. What was “offensive” was left to interpretation of authorities and was widely misused in police cases. Infamous cases under this section included the arrest of two girls by Thane police in 2012 over writing and “liking” a Facebook post on the occasion of Bal Thackeray’s passing and the arrest of Aseem Trivedi for drawing cartoons lampooning Parliament and the Constitution to depict their ineffectiveness and sharing that content on his website. The charge against them: they had ‘offended’ political figures.
Freedom of expression without any concept of a right to offend but with free reining demarcations for ‘right to be offended’ is somewhat toothless. It forces some to walk over egg shells while questioning while encouraging others to take offense to comments isolated from their core message or spirit of discussion. The sum total result of that is not less offensive speech but hanging a sword over free expression (as many unjust arrests and internal actions demonstrate). When coupled with threats of violence and easily ‘offended’ brute force, it translates into gagging of academic debate and discourse about what is the best, most ethical and inclusive course to make us a stronger nation.
Freedom of information – or Press freedom – which is closely linked to Freedom of Expression is a crucial pillar of democracy and India in 2016 ranked a miserable 133rd in the global index of press freedom by Reporters Without Borders – behind even Afghanistan (120) and Qatar (117). Going forward, without a firmer, enforced protection for freedom of expression crucial for a diversity of opinions, India cannot expect to be the cultural capital of the world in the true sense.
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