THE HINDU, SEPTEMBER 26, 2013
Illustration: Satwik Gade
Governments have ritually abused the latitude granted by the Indian Penal Code and the Constitution to harass, intimidate and arrest scores of writers, journalists and artists
It is common knowledge that Article 19 (1) (a) of the Indian Constitution lays down that “all citizens shall have the right to freedom of speech and expression”; it is also common knowledge that this fundamental right is not absolute, as the immediately following Article 19 (2) says “nothing prevents the State from making any law in the interests of the sovereignty and integrity of India, the security of the State […] public order, decency or morality, or in relation to […] defamation or incitement to an offence.” What is not common knowledge is that this fundamental right has almost been eroded completely.
The extensive Constitutional amendments carried out in 1972 replaced section 153 of the Indian Penal Code with sections 153 A and 153 B. These newly added sections are so extensive that today, as the increasing court cases establish, “the right to freedom of speech and expression” has almost been nullified.
The relevant sections are 153A and 153 B of the IPC which penalise “promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc.,” and committing acts “prejudicial to maintenance of harmony”; and sections 295, 295A and 298 which deal exclusively with “religious harmony”.
Government anxiety
It is obvious these sections mirror the anxiety of the then Indian government to maintain peace and harmony in a multi-religious, multi-cultural and multi-lingual nation. One can understand this anxiety considering the socio-political conditions existing in 1972: the Bangladesh war had just ended, and the nation was yet to recover from the huge refugee influx. It was also during that period that regional parties such as Shiv Sena and Asom Gana Parishad were becoming more strident, and religious-cultural organisations like the RSS and Jamat-e-Islami had become aggressive in their tone and acts. Still, there is no doubt that the Indian government over-reacted in enacting the draconian IPC sections referred to above and, later, in imposing the Emergency.
Identifying ‘intentions’
It is true that to be accused under these sections, the “intention” and “result” of the acts of the accused are crucial. But the problem is that it is almost impossible to concretely identify either “intention” or “public order” and “morality” as, at best, they can only be speculative. But what is not speculative is that scores of writers, speakers and thinkers of all castes, creed, and social positions have suffered, and are suffering, due to these “reasonable restrictions”. On most occasions, writers and speakers have been charged and arrested, causing them mental anguish and physical/ financial suffering. Apart from the well-known cases of Salman Rushdie’s Satanic Verses, banned in India, and M.F. Hussain being forced to flee the country, there are many others not so well-known. They include writers, journalists, artists and public speakers. Here’s a list of a few of such cases, in which the provisions of IPC 153 A and B, along with those of IPC 295-296 have been invoked, leading to immediate arrests and long-drawn court-proceedings.
August, 2013: Yogesh Master (his Kannada novel Dhundhi depicts Ganesha, a non-Aryan hero as appropriated and deified by the Aryans; accused of hurting religious sentiments of the Hindu community; charged and arrested);
May, 2013: K. Senthil Mallan (his historical research work in Tamil, Meendezum Pandiyar Varalaru,attempts to trace the roots of Mallars, Dalit community; charged with ‘sedition’ and ‘prone to disturb communal harmony’; book banned);
November, 2012: Shaheen Dhada and Renu Sreenivasan (their comments in Facebook regarding Bal Thackeray’s funeral procession; charged under 295 A and IT Act 66 A, with ‘hurting the religious sentiments of Hindus’ and arrested);
February, 2009: Ravindra Kumar and Anil Sinha (editor and publisher of The Statesman; they reprinted the article “Why Should I Respect Oppressive religions?” by Johann Hari, published in The Independent; charged under 295 A for ‘hurting the sentiments of the Muslims’);
July, 2008: Ashish Nandi (charged with potential for ‘communal violence’ for his article “Critically Analysing the Outcome of the 2007 polls’; got anticipatory bail from Supreme Court);
December, 2008: Lenin Roy (charged and arrested in Odisha for writing “pro-Naxalite” articles);
January, 2007: R.V. Bhasin (his book Islam: A Concept of Political World Invasion by Muslims, published in 2003, was translated into Hindi in 2007; Charged with ‘hurting Muslim sentiments’ and banned);
March, 2007: B.V. Seetharam (editor of Karavali Ale and periodicals in Kannada; charged with ‘defaming Jainism and hurting Jain sentiments’; arrested);
May, 2007: Chandramohan Srimantula (a student of fine arts in Gujarat and a Lalit Kala Akademi Award winner; charged with ‘making obscene religious images and hurting Hindu sentiments’ and arrested);
April, 1993: Nancy Adajania (a 22-year-old student of Bombay university; her article “Myth and Supermyth,” published in The Illustrated Weekly of India, on April 10-16, 1993, argued that ‘new nations, in their attempts to establish an identity, create icons out of the past heroes’; she took the examples of Shivaji, Lakshmibai the queen of Jhansi and Gangadhara Rao the king, to prove her thesis. The publication led to a chain of protests throughout Maharashtra; she was charged with defaming Shivaji and hurting the sentiments of Maharashtrians, and was immediately arrested; the editor of the weekly tendered a public apology).
The list is unending. In Karnataka alone, it includes Masti Venkatesha Iyengar (accused of hurting Veerashaiva sentiments in both of his novels), Shivarama Karanth (accused of hurting the sentiments of the Vishwakarma community), K.S. Bhagawan (accused of defaming Hindu Acharya and hurting Hindu sentiments and arrested); H.S. Shivaprakash, P.V. Narayana , Banjagere Jayaprakash (all three were accused of defaming Veerashaiva saints); H.S. Nagaveni (accused of hurting sentiments of the Vishwakarma community); Bhagawan and Govinda Rao (for a public lecture), among others.
One wonders if ancient and established religions like Hinduism, Jainism, Veerashaivism, Islam and Christianity are so vulnerable as to be hurt by a book or an article!
Turning the clock backwards
In this context, the remarks of Justice M. Saldanha, in his Bombay High Court judgment on the bail-application of Nancy Adajania, are worth recalling. He began, stating that the entire episode was “[d]istressing, misguided and misdirected,” and went on to comment that while charging a person under Section 153 A, especially a writer or a journalist, the concerned officers “should carefully evaluate the matter,” and then concluded: “This is very necessary if constitutional guarantees are to be safeguarded and concepts that hold good in the dark ages are not to be allowed to turn the clock backwards” (delivered on April 23, 1993). Indian authorities do not seem to have learnt any lesson from this judgment, delivered two decades ago; if anything, things have gone from bad to worse.
The task before all the writers, journalists, and artists today is clear and cut out; it is to exert pressure, through legal means, on the Indian Parliament either to repeal or amend the existing IPC sections 153 A and B, and 295-298; or, at least to define ‘the frame of applicability’ of the phrases “public order” and “decency and morality” in Article 19 (2) of the Indian Constitution.
(C.N. Ramachandran is a retired professor of English and a well-known literary and cultural critic from Karnataka)
C N Ramachandran's article on freedom of expression evoked the need of
amendments so as to defend the sovereignty and secularism of the nation.
This revamp and range of definition has to be done not only on the
freedom of expression but also on all the fundamental rights. Effective
growth of the any country depends on effective utilization of the
fundamental rights and fundamental duties. This is also time to add more
fundamental rights and duties such as right to privacy and Respect
towards woman.
It was the Assam Gana Sangram Parishad that was formed around the 1980s
and which was the coordinating body for the Assam agitation. Section 153
A and section 153 B did not come in the way of the activities of this
organization or that of any other. As far as the fundamental freedoms
are concerned it is good to remember that we have not produced a Tom
Payne or a John Locke. The culture of freedoms with us is superficial
and superimposed on what is fundamentally a culture that is comfortable
with autocracy.
Excellent article. The time to defend Free Expression in this country has already come and gone, yet, we need to act, better late than never. We need to recover what is lost as outlined in the last paragraph. Whenever someone vouches for Free Expression, he/she is branded as a pseudo-intelluctual by non-intelluctuals (fools). Actually, one need not be an intellectual or wealthy or healthy in order to be Free or in order to think. The middle class and the poor who cant make ends meet can (in fact, should) participate in the discussion of right and wrong. Should it not be a concern if a writer is threatened with violence for writing a book? If a painter is chased out of the country, for painting? If a couple of girls are threatened for voicing their opinion on their Facebook page? It should be a matter of grave concern for the decent thinking people. Of course, it would not be a concern for people who do not think at all as one of the previous comments indicate.
Right to freedom, as our constitution mentions, comes with certain restrictions.I agree
by author on that terms such as public order etc should be more clearly defined the
enacted laws.For example, in case of 66A of IT act where there is lot of scope of
misusing it, there is need of legislative debate.For nation like india where multi ethnic
and multi lingual culture prevails, it becomes sine qua non to exercise restraint on
freedom of speech and expression otherwise muzzafarnagar riots type situation are
waiting in the coffins.Thus a judicious balance of freedom of speech & expression
along with reasonable restrictions should be there.
The author's arguments for unrestricted freedom of speech are too idealistic to work in practical life, and they are best left to the confines of school textbooks or pseudo-intellectual ivory towers. Limitless freedom of speech could lead to incitement of violence, and in the long run, could act as a garb for incitement to anti-national activities. The already overburdened State cannot afford to waste precious resources handling such unnecessary situations. If you really think about it, the Indian middle class is too busy trying to make ends meet, to have the time to worry about the rights and wrongs of imposing restrictions on the articles/essays/works of art that the author has cited. The Indian state by far and large gives us the freedom to express our views. It shouldn't be such a cause for concern if a few exceptional situations arose.
" One can understand this anxiety considering the socio-political
conditions existing in 1972: the Bangladesh war had just ended, and the
nation was yet to recover from the huge refugee influx. It was also
during that period that regional parties such as Shiv Sena and Asom Gana
Parishad were becoming more strident." Asom Gana Parishad was formed 13
years after 1972!
It is a really terrible state of affairs, esp in the age of the
Internet and social media. Even a private statement/comment online
could invite the wrath of some "hurt" section of society and land u in
jail. These laws are primarily used by publicity-seeking pressure
groups to gain some political mileage. It's not just police action but
also physical/mental intimidation employed by them.
Unless and until it is unequivocally demonstrated that citizens
freedom of expression will be preserved, it will keep getting chipped
away by these so-called custodians of "culture/morality/patriotism".
It is not just enough to have laws which safeguard freedom of
expression but ppl should feel secure to know that they can exercise
it.
Whatever pressure is exerted and ammendments made ..someone will come up tomorrow with some other idea of subverting it.
The whole idea of limiting the freedom of expression.it should have been made absolute some years ago.Because the infringment that the right speaks of,who decides it,how its decided.Yes court can protect you but the very issue of getting arrested and following the legal process will intimidate a lot of people.You have killed the freedom of expression there itself.
There is a factual error in claiming AGP was formed during 1970s. Asom Gana
Parishad (AGP) was formed in 1985, more than a decade after the 1972 amendments.