If you are anything like me, in that you were bought up on a steadfast diet of strictly American TV series and movies and the odd snippet of political tidbit from halfway around the world, you might belabour under the illusion that India, like America, has the freedom of speech and expression (FoSE).
In fact, you might fortify your delusion with your half-forgotten lesson from your Civics class and misguidedly presume that the Freedom of Speech and Expression is a fundamental right guaranteed by the Constitution of India. This is only partially true. You do not have ‘complete’ freedom of expression. Some restrictions are necessary and are employed even by countries like the USA under the ‘harm principle’.
No one is arguing for absolute FoSE. You need to have laws against things such as child pornography, the use of untruths to harm others, etc. and these restrictions are present in the Indian constitution but so are certain restrictions that make our FoSE grossly inadequate for a global citizen in a more scientific, digitally and globally connected world.
How much FoSE do you have?
The Constitution says FoSE
19. Protection of certain rights regarding freedom of speech etc
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the 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
… but …
- security of the State – Other laws are there that deal with this.
- friendly relations with foreign States – Other laws are there that deal with this.
- public order – Other laws are there that deal with this.
- decency and morality – Completely arbitrary
- contempt of court – Other laws are there that deal with this.
- defamation – Other laws are there that deal with this.
- incitement to an offence – Other laws are there that deal with this.
- sovereignty and integrity of India – Other laws are there that deal with this.
… and also the Indian Penal Code says…
Section 153A: Deals with words, spoken or written, or representations that promote disharmony and feelings of enmity, hatred or ill-will between groups. The penalty is 3 years in jail and/or fine.
Section 292: Makes obscene publications (book, paper, pamphlet, writing, drawing, painting, representation, figure or any object) an offence. The penalty is 2 years (first conviction) or 5 years (second conviction), and/or fine.
Section 295A: Criminalises “deliberate and malicious acts, intended to outrage religious feelings, including words, signs, visible representations”; entails 3 years and/or fine.
Section 298: Penalises the “utterance of words” that might hurt the religious feelings of any person; the penalty is 1 year and/or fine.
There are other laws including the Indecent Representation of Women (Prohibition) Act of 1986, and the SC and ST (Prevention of Atrocities) Act enacted to protect specific sections from representations and speech which they find offensive or which mocks or insults them.
What this means is that technically you should not be able to say any of the following:
Quran (2:191-193) – “And kill them wherever you find them, and turn them out from where they have turned you out. And Al-Fitnah [disbelief or unrest] is worse than killing… but if they desist, then lo! Allah is forgiving and merciful. And fight them until there is no more Fitnah [disbelief and worshipping of others along with Allah] and worship is for Allah alone. But if they cease, let there be no transgression except against Az-Zalimun(the polytheists, and wrong-doers, etc.)” (Translation is from the Noble Quran) The verse prior to this (190) refers to “fighting for the cause of Allah those who fight you”leading some to believe that the entire passage refers to a defensive war in which Muslims are defending their homes and families. The historical context of this passage isnot defensive warfare, however, since Muhammad and his Muslims had just relocated to Medina and were not under attack by their Meccan adversaries.
Deuteronomy 17, The Bible
If there be found among you, within any of thy gates which the LORD thy God giveth thee, man or woman, that hath wrought wickedness in the sight of the LORD thy God, in transgressing his covenant; 17:3 And hath gone and served other gods, and worshipped them, either the sun, or moon, or any of the host of heaven, which I have not commanded; 17:4 And it be told thee, and thou hast heard of it, and enquired diligently, and, behold, it be true, and the thing certain, that such abomination is wrought in Israel; 17:5 Then shalt thou bring forth that man or that woman, which have committed that wicked thing, unto thy gates, even that man or that woman, and shalt stone them with stones, till they die.
- “I am an atheist because God does not exist”
Why do we not have near-complete FoSE?
Many will be familiar with the basic formulation of free speech in India as a set of freedoms matched by a set of reasonable restrictions. However, not many may know that this was not the original framework. The early judgments on Article 19(1)(a) were too speech-protective for the rulers’ comfort, and the ‘reasonable restrictions’ were introduced through the first amendment. It is equally interesting to learn that one of the grounds for curbing free speech was ‘sedition’ in an early draft, drawing derisive comments from some members of the Constituent Assembly. Sardar Patel, who chaired the Fundamental Rights Sub-Committee, moved for the deletion of the proviso the very next day. However, the word ‘sedition’ made a mysterious comeback in the draft Constitution in 1948. Once again, it required quite a fight from members to get the proviso withdrawn. Thereby hangs a tale of how rulers, colonial or democratic, have always wanted to retain the power to prosecute for sedition.
One among many other reasons is the egoistic and insecure way in which the first Nehru government governed India.
Journalist Romesh Thapar’s left-leaning magazine Cross Roads had been banned for being critical of Nehru’s policies in Madras. Thapar challenged the ban in the Supreme Court, which lifted the ban in May 1951. After that, independent India’s first government added the caveat to the right to freedom of speech and expression.
Source: Explained: ‘Freedom’ to express oneself, but within limits (The Indian Express)
What has our FoSE laws resulted in?
The Madras High Court (or the Chennai High Court as it will be known from now on) recently issued a statement which is a succinct summary of how the laws regarding FoSE have to be interpreted.
If the contents seek to challenge or go against the very Constitutional values, raise racial issues, denigrate castes, contain blasphemous dialogues, carry unacceptable sexual contents or start a war against the very existence of our country, the State would, no doubt, step in.
This leads to books being outlawed
… in a manner eerily similar to Fahrenheit 451 …
… books about Nehru, Dhirubhai Ambani, Hindu culture, Shivaji …
See full list here: https://www.wikiwand.com/en/List_of_books_banned_in_India
As a simple thought experiment, under these laws, some other books that could be banned are:
- Harry Potter – Blasphemy – Glorifies witches which is against Christian theology. In fact, a church in the US did try to get the book banned from libraries for that reason. It didn’t pass there. It would likely not be upheld here but only for the liberal interpretation that our still mostly sane higher courts would make.
- 1984, Fahrenheit 451 – Public Disorder – Incites people to question the government ministry, work against public order.
This leads to death threats and forced exile
- Writers – Salman Rushdie, Taslima Nasreen, etc.
- Artists – M. F. Husain, etc.
- Rationalists – Sanal Edamuruku, etc.
This leads to movie and TV censorship
- Independence Day: Resurgence deliberately chose to not show any buildings in India being destroyed while they did show every other major landmark like the Burj Khalifa citing “Indians are too touchy”. (Source: Mumbai Mirror)And they are not wrong to do so.
- The CBFC asks Pixels to delete a scene that shows the Taj Mahal being destroyed from their trailers. (Source: Hindustan Times)
- BBC documentary India’s Daughter that shows the callous and abhorrent attitude of the Indian populace regarding rape is banned
- Words like ‘sex’, ‘ass’, ‘breast’ (as part of the phrase ‘breast cancer’), ‘fuck’, ‘Jesus’, ‘Islam’, ‘bitch’, ‘beef’ etc. are beeped out on TV and replaced in the subtitles. Not because they have to be but only because TV channels would much rather avoid any suit or controversy that might arise from someone somewhere being offended. (Source: Firstpost, IBF’s Self-Regulatory Guidelines)
- Clevage from movies like Queen on TV are pixelated.
This leads to Indian being one of only 17 countries where FoSE on the Internet is not a basic human right
This puts us in the esteemed company of countries like:
- Bangladesh – where secular bloggers are literally hacked. To death.
- China – which is a democracy in name only
- Qatar – an Islamic country employing slave-labour
Why any of this matters?
One, you should be aware that things that you would normally say in everyday conversation are technically illegal.
But more importantly:
The ‘chilling effect’ of excessive curbs such as the threat of exorbitant awards as damages for defamation, the casual resort to a ‘decency or morality’ standard based on a section of public opinion, or succumbing to the threat of violence by a purported offended section of society — popularly called the ‘heckler’s veto’ — are issues that all citizens should familiarise themselves with. For often, what is at stake is not merely the freedom of political activists, writers and journalists alone, but that of every citizen, voter or resident.
Source: Explained: ‘Freedom’ to express oneself, but within limits (The Indian Express)