Sunday, May 27, 2007

WHAT IT MEANS TO BE A LIBERAL IN INDIA-PART III

The range of opinions expressed on the issue (in the comments section) convinces me of two things: One, we are all concerned about the negative consequences of hate speech laws, primarily with the way they are being applied by the authorities, sowing seeds of discrimination between various religions. The second, which stems from the first, is that there is a gulf between the objective of these laws, and the reality; that is, in practice, these laws have been so identified with the compulsions of maintaining peace and l aw and order, that their original objectives have been more or less discarded.
The debate is mainly about Vadodara and the Punjab incidents. My initial feeling that they are unrelated – because the former was a private exhibition whereas the latter was in the public realm – cannot be legally sustained. (Here, I thank Mr.Srinivasan, though I am not sure whether his reservation against my earlier stand was on similar grounds). In other words, the fact that Vadodara was a private exhibition, meant for peer review cannot be the sole ground of defence for Chandra Mohan. Section 295 A IPC – which is applicable in both Punjab and Vadodara cases – is silent on whether an exception could be granted if the alleged act took place in the private realm. The possible view that this qualification has to be read into the provision makes no sense, as the alleged act, even if held in the private realm, can come within the scope of this section. The test has to be whether Chandra Mohan and Dera Chief had “deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, and insulted the religion of that class.” I am revising my earlier view that the test has to be whether the alleged act is likely to lead to disturbance of law and order. I based that view on the rationale underlying this provision, which is the maintenance of public peace and tranquility in India, where religious passions can be easily aroused and inflamed.
While reading on this issue, I came across an insightful article by Soli Sorabjee in the book Law and Justice: An Anthology, edited by him (Universal Law Publishing Co.Ltd.,2003). He cites from the Report of the Select committee in connection with the enactment of S.295A in the IPC in 1927. The Committee was impressed by an argument that an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a sock to the followers of the religion as would ensure notice being taken of any criticism so made. We have therefore amplified the words ‘with deliberate intention’ by inserting reference to malice, and we think that the section which we have now evolved will be both comprehensive and at the same time of not too wide an application.”
In Ramji Lal Modi v. State of Uttar Pradesh (AIR 1957 SC 620), the Supreme Court upheld this section, and reasoned that it did not penalize any and every act of insult to religion or the religious beliefs of a class of citizens but was directed to acts perpetrated with the deliberate and malicious intention of outraging the religious feelings of a class of citizens. “The calculated tendency of this aggravated form of insult is clearly to disrupt the public order….” (from the SC Judgment in this case).
However, it is, in my view, possible to suggest that an alleged act may not have this tendency; in other words, disruption of public order need not be a test to determine whether an alleged act falls within the four corners of this section.
Sorabjee says: “One may legitimately criticize the tenets of a particular religion and characterize them as illogical or irrational or historically inaccurate. But it is not permissible to condemn the founder of a religion or the prophets it venerates as immoral persons or frauds and charlatans. Courts would in such cases probably infer a “deliberate and malicious intention” to insult the religion, particularly if the language is abusive or vituperative. Ultimately, it depends upon the approach of the judges. Do they attach more weight to freedom of expression or are they more concerned with preservation of peace and order?”
He continues: “ The authorities deem it prudent to play it over-safe. The tendency is to ban a book or a play, if there is the slightest possibility of demonstrations and disturbances, to forfeit it and drive the aggrieved person to court to obtain a judicial verdict.”
Sorabjee cites from the observation of five dissenting members of the Select Committee which approved S.295A: “It’s a regrettable concession to fanaticism, it will on the contrary, make the situation worse; each side will accuse the other of publishing writings which are against their religion, and government will again be seen siding with one party or the other.” Another member warned: “It will only accentuate the evil which it is meant to remove. Far from healing the differences which will linger, or which now and then come to the surface, it would widen the gap by encouraging insidious men to do mischief in stealth…” Sorabjee says his objection was not only perceptive but prophetic. According to Sorabjee, criminal laws prohibiting hate speech and expression will encourage intolerance, divisiveness and unreasonable interference with freedom of expression. “We need not more repressive laws but more free speech to combat bigotry and to promote tolerance”, he says.
Put in this historical context of the genesis of S.295A, I feel both Chandra Mohan and the Dera Chief cannot be accused of deliberate and malicious intent – the true test for invoking this Section. They are not guilty of using abusive or vituperative language or sign. Clearly, there has been a concession from the authorities to crossing the limits of tolerance as perceived by a section of the people. The number of people wrongly feeling outraged in Vadodara may be less, and more in Punjab, but that itself does not justify the use of S.295 A.
Does the law needs amplification, as suggested by Mr.Dilip, so as to make it detailed with reference to the scope of this section? I think that would further curtail the scope of freedom of expression, even though it may be justified on the basis of past experience. It can be suggested that the Courts could decide whether S.295 A is attracted, depending on the facts and circumstances of each case. A list of such acts falling under S.295A as Mr.Dilip suggests, may be an answer to limit the discretion of the courts which may be carried away by the ‘disturbance to law and order’ argument. At the same time, it helps to know what act is likely to outrage a particular religion. However, we need to take precautions that the Khajuraho sculptures and their modern counterparts do not become vulnerable to misconceived attacks from the moral police due to such legal amplification.
The Dera chief would not have had deliberate and malicious intention to insult the Sikhs by dressing like their Guru. But it needs to be asked why he did it in the first place. If it is an inadvertent error, then including this act in the proposed list under S.295 A, would stop repetition of similar acts. After all, what great freedom of expression is involved in this? If a particular form of dress is likely to offend a religion, why should a person have a licence to wear that dress in public, especially when that person himself is a public personality, and his actions and symbols are closely scrutinized by public for hidden messages?
In the case of Vadodara painting, Chandra Mohan’s painting would have been entirely due to academic interests. Since such actions need legal protection from vandalism, there can be a proviso to S.295 A clearly mentioning that if the alleged act was done in the course of an academic study, meant for peer review, and not strictly for public exhibition, the section would not apply. That way, we could balance the demands of free expression as well as the compulsions to protect religious sentiments from being outraged by irresponsible or inadvertent actions by individuals.
UPDATE: WHY DO WE REQUIRE S.295 A IPC? In the comments section, doubts have been expressed whether we require S.295 A IPC at all in view of its possible abuse by those who don’t value freedom of expression (Mr.Srinivasan has this view). Mr. Suresh asks why can’t we have the right to criticize other religions? The answer has to be found in the origin of S.295 A. This section was enacted in 1927 when the existing provision (which still continues) S.153A was found inadequate in the Rangila Rasool case. (Ray Paul v. Emperor, AIR 1927 Lah 590). A tract, Rangila Rasool, was published in which there were offensive references to the Prophet Mohammed’s personal life. The High Court took the view that the prosecution which was launched under S.153A was not legally sustainable because the writing could not cause enmity or hatred between different religious communities though it was certainly offensive to the Muslim community. Justice Dalip Singh who delivered this judgment was a Christian, and there was an unreasonable demand to sack him. The plea for a change in the law thus emerged. Such was the outrage caused by the tract that the author of the tract was later killed. (Source: Law and Justice: An Anthology Ed. By Soli J.Sorabjee)

7 comments:

Srinivasan said...

Thanks to Mr.Venkatesan for the revisions and amplifications. I entirely agree with the test for deliberate malice as a reasonable option in S.295.

However I do find that that debate about the Dera Chief's dressing up 'dresses up' certain issues beneath. Dressing up like the Guru cannot be a sin according to the Sikh religion. There are so many instances when Sikh children are dressed up like Gurus in dramas, and other cultural events in veneration. The charge is that the Dera chief is trying to capitalize on, imitate and arrogate himself the authority to initiate "amrit sanskar" and hijack/counterfeit the Sikh Religion. The issue is wholly in the realm of religion as to determining who is authentic and genuine. It is not clear to me as to what could be the legal basis for the State to intervene in a religious issue such as this.

V.Venkatesan said...
This comment has been removed by the author.
V.Venkatesan said...

Dear Mr.Srinivasan,
It is clear that the Dera Chief's dressing like the Guru has hurt the Sikh sentiments. It is however debatable whether S.295A is attracted. In my view, it is not. The solution apparently has to be extra-legal. He has rightly apologised to defuse the situation, though one is sure to interpret the apology as the triumph of religious bigotry over liberal principles of the Constitution.

Arun Thiruvengadam said...

Dear Mr. Venkatesan,

The issue dated June 04 of India Today has a story about the clash between the Dera Sacha Sauda head and the Sikh clergy which suggests that the issue is not a clear cut conflict between religious bigotry and liberal principles. The story notes that the Dera chief has several cases (of murder and sexual exploitation) pending against him, and suggests that the Dera chief's controversial ritual was "meant to send a veiled warning to the [Union government] against nailing him in the investigations." The story further notes that the Dera has been engaging in state politics for a while, and it appears that this was a spontaneous gesture, but a well planned one.

It would seem, therefore, that the issue is murkier than it appears on the surface. Again, this is not new in Indian politics, where liberal values are often invoked by people who are not necessarily liberal in their own conduct. Which raises an interesting question for people genuinely committed to liberal value: should liberal values always be championed, regardless of the actual motives of those who espouse them, or whether those calling for such liberal values actually have illiberal motivations?

Dilip said...

I thank Mr. Venkatesan for a very insightful article. With reference to Mr. Srinivasan's comment, I think the Dera's chief's action falls under the category of expressive conduct where the message inferred is context dependent. Seen that way, there is a clear distinction in this case between a child dressed up as Guru Gobind Singh where the expression is of educational or entertainment value from the Dera chief's message where, by seeking to don the Guru's mantle, he was laying a public claim to religious authority. It is certainly possible that in other cases, the message is not always as clear.

The two-pronged test that you propose – deliberate and malicious intent to insult and the successful result of the intended effort as evidenced by disturbance of public order – is a reasonable one. You correctly suggest that the test of what constitutes an insult cannot be divined from the disruption of public order ex post facto but ought to be defined ab initio. Based on the paragraph you quote, I think Sorabjee's test to determine whether section 295A applies – an ad hominem attack on a prophet or founder of a religion especially if it involves abusive or vituperative language – is a good way to draw a line though I am not entirely convinced of its efficacy. For example, one could attack the followers of a particular religion rather than its founder using the same kind of language and cause a riot – surely, section 295A should apply then as well since malicious intent exists. Also, it is perfectly possible to be irreverent of a prophet without being abusive: for example, if one were to speak or write a piece highlighting the dark side of a prophet’s life – would that attract section 295A? I am not clear but I assume it would not. Mr. Thiruvengadam’s comments that the Dera chief’s actions might have been a well-planned one raise a further question: should the intent to insult be determined facially from the actual act of expression and the limited context in which it occured or should a larger view of the individual/organization’s activities and intentions play a role?

I found Sorabjee’s view on hate speech – that the best way to prevent it is to protect it – very interesting. It is questionable though whether it would actually work. Hate speech can be a more powerful tool to mobilize politically than talk of unity and compromise, so it is unlikely to go away easily. Secondly, its likelihood to cause violence and the resulting counterviolence – Praveen Swami’s essays highlight how Thackeray’s and Modi’s speeches form good propaganda material for jihadist groups – suggest that the notion that the public would mature or grow weary enough to learn to ignore it or treat it with contempt and disdain is simplistic; instead the consequences of bigotry and hatred are likely not to heal but to render us a more fractious, balkanized society with violence, alienation and poverty all feeding on one another.

Lastly, the proviso providing for an academic exception is a very good idea. However, being limited to the private realm, it can only be a beginning.

Srinivasan said...

No one can disagree with the view that the issue is a lot murkier. Congress saught the Dera help and acquired it in the last elections which did help the party in the Malwa region to make inroads into the SAD vote. But the SAD's response has been rather moderate and it has been led by SGPC. Even SGPC has been outflanked on the right by groups such as Damdami Taksal. Another question to ask is why these charges of rape and murder, the CBI investigations are arising in this context.

But here when priciples are involved, I believe the protection of the law should be according to where everyone stands on a particular issue without looking into the antecedents or politics.

For example if Bal Thackeray draws an offensive cartoon and is hauled to the court, he would be an hypocrite to invoke principles of liberalism and free speech in his support. However, in my view,episodically, he should be supported by liberals. Not doing so would weaken the credibility of liberals and liberalism. Standing up for such values uninformly and always, strengthen these values in the long run. Sadly a perceived lack of this quality is the reason why liberal arguments lack broad support in our society.

V.Venkatesan said...

Dear Arun,
I am sure you would agree that liberal values of the Constitution, especially the freedom of expression in Art.19,have been guaranteed to all, without discrimination between liberals and illiberals, or innocents and criminals. Thus the question of motives of those invoking the liberal values does not arise. Liberal values have to be guaranteed also to those who espouse illiberal values in their conduct and behaviour, as long as they don't violate the laws of the land imposing certain restrictions on the exercise of freedom of expression.
The issue involved in Punjab perhaps is the feeling among Sikhs that the identity of their religion itself is under challenge because of Dera sect's attempt to offer a parallel religion of sorts to those feeling marginalised within Sikhism. It is a serious issue. It may not be S.295A which is involved, but the right to practice and preach one's religion. The Sikhs rightly or wrongly feel that that if the symbolic imitation of Guru by Dera chief is permitted, it would then be a licence to woo Sikhs to follow the Dera sect, without invoking the process of conversion. Clearly, larger issues are involved, and I don't think it makes sense to trivialise the issue in terms of a few criminal cases against the Dera chief.