India's long history of assaults on free expression

Last Updated: Wed, Feb 06, 2013 10:55 hrs

New Delhi: The problem with this country’s vast throngs of would-be censors, from the genuinely easily offended to the professional provider of threatening mobs, is that they don’t co-ordinate their schedules.

If they had spread out their various grievances and attempts to grab media attention over a period of months, they might not have drawn as much indignation as they have through this last week.

Instead, they clashed — within a week, we saw attempts to shut down Kamal Haasan’s film Vishwaroopam, to jail the academic Ashis Nandy for his remarks on caste and corruption, and to prevent Salman Rushdie from going to Kolkata after he’d already visited three Indian cities without incident or riots.

Each group of protesters had their own agenda. A Muslim federation of various groups claimed to speak for those Muslims whose sentiments had been hurt by Vishwaroopam, even though other moderate Muslim bodies, including the Tamil Nadu Sunnath Jamath, said that they disagreed with the protests. A minor politician from Rajasthan barged into the Jaipur Literature Festival, using Professor Nandy’s speech to build credibility in his own constituency.

And Kolkata newspapers suggested that Mr Rushdie was refused the freedom of the city because of political calculations – in order not to alienate the Muslim vote in upcoming panchayat elections – and that his itinerary had been helpfully shared by unnamed intelligence officials in the state with Muslim groups so that they could arrange a protest. (One of the great uses of art and literature in this country is that it allows fringe groups and struggling politicians instant access to valuable TV time and the print media, chiefly by protesting art they haven’t watched and books they don’t intend to read. It’s cheaper than hiring a PR agency.)

The coincidence of timing helped to focus attention on the two-decade-long history of assaults on free expression in this country. Basharat Peer summarised this elegantly in The New Yorker: “Along with censorship and surveillance, an insidious trend of political, ethnic, and religious groups threatening artists, writers, and scholars with violence and legal action has been gathering strength across India.”

Parallel to that assault, and less often discussed than the attacks on free speech, have been the positions taken by the Indian courts on freedom of expression over the years. Just after Independence, the first amendment to the key principle of free expression was brought in, setting India on a radically different path than, say, the United States, where the primacy of free expression remains constitutionally enshrined in that country’s First Amendment. As Lawrence Liang pointed out in an interesting essay, that first set of limitations on free speech indicated that this would always be a balancing act for India — there were, as he says, “inherent tensions between balancing freedom of speech and expression and the promotion of national security and sovereignty”.

The courts, in those first decades after Independence, were inclined to uphold free speech. In a much-cited 1947 case, Judge Vivian Bose wrote: “…The effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view. This, in our opinion, is the correct approach in judging the effect of exhibition of a film or of reading a book.” This would prove to be an influential and lasting principle.

It is hard to remember a time before bans, challenges and threats to writers had not become commonplace, but in the early decades after Independence, the main battles over free speech were waged over the often harsh provisions left over from British rule, allowing the state to shut down books, theatre, art and cinema almost at will. The courts departed from opinion in the UK on a book such as Lady Chatterley’s Lover, ruling in 1964 that the book was likely to “deprave and corrupt” impressionable Indian minds, even though their Lordships acknowledged its literary merit and spoke with some approval of Lawrence’s Fantasia of the Unconscious. But the Bombay High Court delivered an equally landmark judgment in the Sakharam Binder case, overturning the ban on Vijay Tendulkar’s play and ruling certain kinds of censorship unlawful.

Through the 1970s and the 1980s – barring the Emergency period – court judgments on free expression, especially from the Supreme Court, tended to argue in favour of the rights of the creative community to free expression. Though the Supreme Court recently upbraided Mr Nandy for his remarks, telling him that he had “no license to make such comments”, they have by and large upheld the rights of authors and artists to hold opinions contrary to the norms of the day.

Gajanan Visheshwar vs Union Of India on July 12, 1994

Dismissing cases against the painter, M F Husain, the courts observed: “There should be freedom for the thought we hate.” This judgment dismissed most of the cases against Husain, and stressed that there should be room for the unpopular, and for art that caused discomfort. Instead of resorting to the criminal justice system, the judges felt that the onus was on those disturbed or unsettled by art to come up with their counter-arguments and their disagreement. It also spoke of the tendency to misuse the criminal justice system, and of the plight of artists “made to run across the length and breadth of the country to defend themselves against criminal proceedings initiated by oversensitive or motivated persons”.

Anand Chintamani Dighe And Anr vs State Of Maharashtra And Ors on October 9, 2001

Pradeep Dalvi’s play Mee Nathuram Godse Boltoy was brought before the courts for glorifying Gandhi’s assassin, and for being derogatory to Mahatma Gandhi. The state government had argued that it might disturb the public tranquillity and that it would promote disharmony and enmity between communities. “The law does not have to accept the views which have been expressed by the petitioner in the play in order to respect the right of the petitioner as a playwright to express those views,” the judges observed, striking down the attempt to seize and forfeit copies of the play, or to ban its performance. (In 1989, in a landmark judgment on the Tamil film Ore Oru Gramathile, the courts had observed that it was the state’s business to deal with the “hostile audience problem” — the state had to maintain law and order, rather than use the fear of public unrest as an excuse to shut down artistic expression.)

Sujato Bhadra vs State Of West Bengal on September 22, 2005

Refusing to consider a ban on Taslima Nasreen’s Dwikhandita, the judges declared that in order for a work of art to be considered insulting to religion, it must be found that the author’s intention was to deliberately cause malice. This was an interesting reading of Sec 295, As in several other judgments, this case also stressed the need for those who were offended to read a work – or to experience a work of art – in its totality, rather than extract portions from the text that might buttress a claim to offence.

In Ms Nasreen’s case, they felt that criticism of religion offered “in good faith” by an author who wanted to, say, bring about social reform by administering a shock, was protected speech. This continued the line of argument put forth in a 1988 case concerning Bhisham Sahni’s television serial Tamas, where it was argued in part that the protection of the “least capable and most depraved” must not determine what the morally healthy could not view or read.

The Tamas case makes for interesting reading, because so many of the fears expressed by those who wanted the TV serial pulled are also expressed today — the fear that the Partition violence depicted in Bhisham Sahni’s novel and the serial would lead to actual violence as memories were stirred, the fear that the conflicts depicted might be misused by some to stir up hatred within different religious communities. The judges at that time felt that the work had its own integrity, and that though television expanded the impact of a literary work, taking it to a wider audience and adding a layer of visual and emotional power, these fears were not sufficient to prevent the work from being shown.

Sony Pictures vs The State Of Tamil Nadu, on July 7, 2006, Madras High Court

The screening of the film version of The Da Vinci Code was suspended in Tamil Nadu after members of the Christian community objected. (Some didn’t — when the ministry of information and broadcasting invited several leading members of the clerical and the Christian community to view the film and offer their suggestions, they did not ask for a ban. They suggested, instead, that the film carry a disclaimer, stating that the film was pure fiction and that it had no correspondence to the historical facts of the Christian religion.)

The courts observed that “the persons who object to the film are not involuntarily and forcibly exposed to the film… they must buy tickets to see the film”. Refusing to ban the film, the courts upheld the right of “a work of art or literature or a film” to offer alternative assumptions about religious matters. Adding to a growing body of judicial criticism of the state’s reluctance to step in, the courts suggested that the State was bound to protect those whose fundamental rights had been violated by people who threatened to breach the peace, rather than to mutely watch such threats.

And the Bench made a more complex argument, one that might have a significant effect on future free speech cases. “The issue in the present case is not whether these alternative assumptions are true. The issue is whether there can be a work of art or literature or a film which propounds such interpretations and whether the public have the right to decide whether to accept or reject such alternative interpretation. The issue is whether the petitioner's right to freedom of expression and equally, a person's right to see the film can be curtailed by the State ostensibly on the ground that a section of the people does not accept that the petitioners have such freedom of expression.”

S Khushboo vs Kanniammal & Another on April 28, 2010

In a 2010 Supreme Court ruling on statements made by the actress Khushboo, it seemed that the apex court was also reluctant to use the obscenity laws to shut down discourse. Notions of social morality were subjective, they said, and there was a need to tolerate unpopular views, even if they differed from the mainstream opinion.

This was, it should be noted, in direct contradiction to the 2008 judgment of the Madras High Court, which appeared to find Khushboo’s views on premarital sex unsettling: “Incidentally, it is notable that the so-called open or permissive societies, blindly lauded by the petitioner, are ipso facto incapable of promoting conditions for any deep and intense love relationships. Their conditions lead to waywardness and wantonness, in the process of seeking transient affairs, if not while indulging in momentary and lustful pleasures.”

The Supreme Court refrained from either condemning or endorsing the practice of premarital sex, and commented: “The appellant has merely referred to the increasing incidence of pre-marital sex and called for its societal acceptance… For the sake of argument, even if it were to be assumed that the appellant's statements could encourage some people to engage in premarital sex, no legal injury has been shown since the latter is not an offence.”

The bench spent some time on a discussion of frivolous cases, observing that they clogged the courts, and also observed: “What is interesting to note is that not all of the complainants are women, and in fact almost all the complainants are associated with a particular political party… This fact does add weight to the suggestion that the impugned complaints have been filed with the intention of gaining undue political mileage.”

Many subcontinental writers have had to face obscenity cases, starting with Ismat Chughtai and Saadat Hasan Manto, to Arundhati Roy, to Mridula Garg and, most recently, Jeet Thayil faced four obscenity charges for a public reading he gave from Narcopolis at the Jaipur Literature Festival. (The charges have yet to be heard in court, and have not been admitted at present.)

For writers and the creative community, the battles of the last two decades have been sometimes frightening, often exhausting. But these judgments – and many more like them – stand as a reminder that while the cost of exercising one’s free expression rights has been rising, those rights do exist, and have been quietly upheld, even in times of howling mobs and threats of bloodshed and fire.

Not all battles are conducted in the blaze of media attention, and not all skirmishes are won in the glare of publicity. This Saturday, I dropped in at the India Art Fair in Delhi. As we turned from Waswo K Waswo’s subtle miniatures to the Chagalls and Dalis on display, we found M F Husain’s paintings, somewhere between Picasso’s lushly curved women and Souza’s saints.

People stopped in front of his version of the three graces, the women bending their bodies over his horses, or they went on without breaking stride to the installations ahead, not noticing the two policemen who stood by unobtrusively. Many Husain shows have been stopped in these last decades by protesters; in the past, his studios were vandalised, organisers threatened, and some galleries had said they were not able to exhibit his paintings because of the fear of violence. And yet, here he was, his paintings up for show for the simplest of reasons: because he belonged in the scrum of that mela, in that public fairground, along with the Bikashes and the Ganesh Pynes, the Ram Kumars and Tyeb Mehtas.

His work had never really left the public domain, despite the threats over the years, and it was back in the most unselfconscious way possible, Husain just one great painter among his peers. That might be the way it goes, too: despite the violence and the use of the law as harassment, perhaps beleagured art, cinema and books will keep slipping back into existence, when the brethren of the Offended are otherwise occupied.

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