Sunday, June 28, 2009

Noorani on Freedom of Speech and Religion: A Comment

I read A.G.Noorani’s article titled ‘Free Speech and Religion’ in the June 6th issue of EPW with interest wherein he argues that the March 26th resolution 7/19 of the Human Rights Council of Geneva on ‘Combating Defamation of Religions’ was entirely appropriate and criticizes Western opposition and Indian skepticism. As for the resolution itself which was previously discussed on this blog and elsewhere, it is generally consistent with Indian laws and India could therefore have justified virtually any position it took. Noorani however makes some additional points: (1) that defamation of religion is well recognized and ‘the distinction [between defamation and criticism] is well settled in law, politics and civic discourse’ (2) Citing the Danish cartoon controversy, he appears to suggest that blasphemous libel is no different from ordinary defamation (3) Western free speech arguments against blasphemy are false. All of these claims are debatable.

He cites Lord Scarman’s views expressed in his opinion in R v. Lemon (1979) to support these arguments. That judgment is however only a part of the record. The question in R v. Lemon (1979) was whether, in order to secure a conviction of blasphemous libel, it is necessary or not for the prosecution to prove the intent of the defendant to blaspheme (in addition to his intent to publish the allegedly blasphemous material). The Lords held, by a 3-2 decision that it is not required. Lord Scarman summarized his view as follows:

Every publication is said to be blasphemous which contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ, or the Bible, or the formularies of the Church of England as bylaw established. It is not blasphemous to speak or publish opinions hostile to the Christian religion. or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not as to the substance of the doctrines themselves. Everyone who publishes any blasphemous document is guilty of the [offence] of publishing a blasphemous libel. Everyone who speaks blasphemous words is guilty of the [offence] of blasphemy.

Following this, the Law Commission, in a working paper in 1981 followed by a full report in 1985 recommended abolition of the offense. Here, it discussed in detail each of the points that he mentions. On the question of whether matter and manner may be distinguished for the purpose of the offense as Lord Scarman suggests, it said:

Frequently matter and manner cannot easily be disentangled and upon analysis it is often the message which repels as much as the language in which it is couched. That may well have been so in regard to much if not all of the material found to be blasphemous in reported cases. Matter which consists only of vulgar abuse or insults may thus on examination prove to be so insignificant in quantity and so insignificant as a social problem as scarcely to merit notice by the criminal law; and it seems to us that any wider categorization may indeed have adverse consequences for freedom of speech and communication.

Such restrictions would in particular have adverse consequences for what many would consider to be proper criticism of matters pertaining to religion and religious belief. Ridicule has for long been an acceptable means of focusing attention upon a particular aspect of religious practice or dogma which its opponents regard as offending against the wider interests of society, and in that context use of abuse or insults may well be a legitimate means of expressing a point of view upon the matter at issue

On the question of extending a similar protection to other religions in a plural society (English common law only extended this protection to the Church of England) as Lord Scarman suggested and Noorani endorses, it noted:

The imposition of criminal penalties upon such abuse or insults becomes, in our view, peculiarly difficult to defend in the context of a “plural” or multi-racial, multi-religious society. Here one person’s incisive comment (or indeed seemingly innocent comment) may be another’s “blasphemy”, and to forbid use of the strongest language in relation, for example, to practices which some may rightly regard as not in the best interests of society as a whole would, it seems to us, be altogether unacceptable. But such would be the consequence if, as many of our commentators urged, a crime of blasphemy were to be extended to religions other than Christianity. Of course, such abuse or insults directed at the beliefs or practices of a particular religion may in substance amount to an attack upon adherents of that religion because of the views they hold. The line may be a fine one; but as we have emphasized above, if such attacks appear to be or become a real social problem, the appropriate response in our view is not to extend the law of blasphemy but rather to adapt the present offence penalizing the publication of matter likely to arouse hatred towards persons on account of their race so that it would penalize publication of matter likely to arouse hostility to others on account of their religious beliefs.

This is very similar to the Canadian delegate Terry Cornier’s view that ‘it is individuals who have rights and not religions’. Indeed, the Racial and Religious Hatred Act passed in 2006 incorporates this view. While making the publishing or distribution of offensive material with the intent to stir up religious hatred an offense, it explicitly declares that ‘Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytizing or urging adherents of a different religion or belief system to cease practicing their religion or belief system’ (section 29J). Clearly, there is nothing preposterous about it as Noorani suggests.

Quoting an article from The Economist regarding the Danish cartoon controversy, Noorani argues that ‘A living per­son caricatured thus would have a valid cause of action in law for libel. So would members of a religious community if the founder of the faith is thus libeled.’ Firstly, it was reported that the lower courts in Denmark had dismissed libel charges against Jyllands-Posten and the matter had been appealed in the Supreme Court. Secondly, unlike ordinary libel, neither the artistic nor other merits of the material nor a public good defense was available for blasphemous libel under English common law (Media Law by Sallie Spilsbury, 2000). Also, as the working paper noted, it was doubtful that dissemination could be prevented by application of criminal law as ‘special protection for the religious believer could lead to widespread flouting of legal sanctions by those wishing to focus attention upon its discriminatory character or to be seen as martyrs in the cause of freedom of expression’ and it ‘might well stimulate activities designed to display its unacceptable character and the impossibility of securing its proper enforcement’. Several previous episodes attested to this reality. William Foote, a journalist determined to bring down English blasphemy laws in the 19th century published irreverent pieces on biblical characters in his paper Freethinker including pictures depicting the ‘Comic Life of Christ’ and an image of the Almighty’s posterior. His prosecution however resulted in the widespread dissemination of the material turning him into a cause célèbre (Blasphemy in the Christian World by David Nash, 2007). Again, few people had heard of the gay newspaper or of James Kirkup before the Lemon case was brought to court. Clandestine distribution of the material afterwards helped it reach a much wider audience than it would otherwise have. If the idea is to protect society by preventing dissemination, it appears unlikely to have a salutary effect.

Finally, based on this recommendation and others (including a report by a select committee of the House of Lords delineating the various options in 2002), the offenses of blasphemy and blasphemous libel under the common law of England and Wales were abolished by the Criminal Justice and Immigration Act, 2008. Lord Scarman’s view is therefore no longer good law.

Noorani also refers on several occasions to ‘some US talk on free speech’. I have no idea what that means but it suffices to note that he cites no American case to buttress his claim that religions require special protection. The US Supreme Court has never ruled on blasphemy but it did hold the New York state law on sacrilege which was defined in very similar terms to be unconstitutional in Joseph Burstyn Inc. v. Wilson 343 US 495 (1952) ((Blasphemy: Verbal offense against the sacred from Moses to Salman Rushdie by Leonard W. Levy, 1995). The majority opinion in that case held: "In seeking to apply the broad and all-inclusive definition of "sacrilegious" given by the New York courts, the censor is set adrift upon a boundless sea amid a myriad of conflicting currents of religious views, with no charts but those provided by the most vocal and powerful orthodoxies. New York cannot vest such unlimited restraining control over motion pictures in a censor..." Justice Frankfurter, in an eloquent concurrence was even more explicit. Though several states continue to retain blasphemy laws on their statutes, prosecution attempts ended in the early 1970s. It is virtually certain that any such censorship today would be struck down on First Amendment grounds (In the more recent National Endowment for the Arts v. Finley (1998), even Justices Scalia and Thomas did not dispute an artist's right to create indecent and disrespectful art).

Whatever one thinks of the resolution, some things are clear. Blasphemy in the West is headed to oblivion if not extinction – several countries have abolished it while others that retain the offence on their statute no longer enforce it. He says that ‘the issue is not freedom; it is self-indulgence with an eye on publicity’. With respect, this is a distinction without a difference. He further adds 'Such people falsely raised the banner of freedom and sailed with the anti-Muslim current in Europe'. I do not believe this either. Blasphemy laws in Europe have been shaped by centuries of struggle both within Christianity usually spearheaded by marginal sects such as Unitarians and Socinians against its dominant form as well as against Christianity led by the deists and others. From that standpoint, it is not difficult to see why preserving these hard earned freedoms is very much a matter of principle in these countries.

9 comments:

Kaushik Krishnan said...

While it's important to protect religions for defamation, there is a dark side to this story which played itself out in India some months ago. Johann Hari wrote an article in the Independent on the importance of the right to criticize religion (http://www.independent.co.uk/opinion/commentators/johann-hari/johann-hari-why-should-i-respect-these-oppressive-religions-1517789.html). A Kolkata newspaper, The Statesman, reproduced the article in its newspaper. This article was promptly paraded by religious fanatics as "deliberate and malicious acts intended to outrage religious feelings". The editor and publisher of the Statesman were promptly arrested by the police under S. 295A, IPC. The arrest went uncovered by the Indian media. Only BBC, the Independent (http://www.independent.co.uk/news/world/asia/editor-arrested-for-outraging-muslims-1607256.html) and a few other foreign papers reported it. Subsequently Johann Hari published another article in the Independent justifying his stance (http://www.independent.co.uk/opinion/commentators/johann-hari/johann-hari-despite-these-riots-i-stand-by-what-i-wrote-1608059.html).

All three pieces form an essential background for India's refusal to vote in favour of the proposal. There are three good reasons why abstaining was a correct course of action: (1) In Hari's words, 'an independent society cannot be structured to soothe the hardcore faithful'. His entire article makes out a good case for abstaining. (2) India already has S. 295A, IPC which reads - 'Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.-- Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.' (3) As India's ambassador rightly pointed out, there is hardly any reason for any particular religion to deserve special mention. I see no reason why the resolution would have lost its meaning if it omitted to mention any particular religion.

The liberal and rational viewpoint, while it seems anti-religious to suggest it, is that there is no reason why I should not be allowed to criticize something just because it is part of a religion. Eg. Assume that in some alternate reality, Buddhism's main tenet was that all children with blue eyes should be put to hard labour on reaching puberty. Assume also, that by some bizarre chance, Buddhism became the dominant religion in this alternate reality. Such a tenet is so deeply in contradiction with any sense of fairness or ethics that no one would have any hesitation in calling it absurd. In fact, even in our reality, if such a tenet were not a religious edict but the law of a secular state, such a law would attract severe criticism. Yet, if this tenet was the cornerstone of any dominant religion today, be it Hinduism, Christianity, Buddhism, or any other religion, any attack on the tenet would be interpreted as an attack on the religion. And since all attacks against a religion are bad, my calling the rule vile would make me a bad person.

Dilip said...

Kaushik,

Thanks for the comment. Tarunabh brought up this Johnann Hari episode earlier on this blog (click here). As Noorani points out, the resolution was specifically brought forward by Islamic countries because of concerns over discrimination of the muslim minority in the West and attacks of Islamic doctrine in the West. Hence the special mention of Islam in the resolution. Because, as you indicate, India already provides protection against religious defamation, a vote in favor could also have been justified.

As for Johann Hari's article, even under the standard that Noorani endorses, it would be fair game and ought not to be penalized. The same would go for any criticism of Buddhist doctrine under your hypothetical example. As per this view, as Lord Denman once put it, the opinion is less important than the 'tone and style and spirit'. This view has found some endorsement in the past in a ruling of the Rangoon High Court in a s.295A case King v. Ngi Shwe Hpi and Another AIR 1939 Rangoon 199 where the Court upheld a sentence on U Shwe Hpi for publishing and distributing a book with passages containing 'most intemperate and provocative language', in particular, with reference to the manner of the death of Lord Buddha. The Court also noted there that 'if the [respondent] chooses to write such a pamphlet, he must take care of the language which he employs'.

john said...

Hey Buddy! It's R v. Lenon, may be just a printing error.

Dilip said...

It is a printing error. It is actually Lemon.

tarunabh said...

thanks for this informative post dilip. i thought blasphemy is not a crime in india --- isnt that right? we have an IPC privision against religious hatred (with, if i remember correctly, a significantly high intent requirement). but it is not a crime to defame/critice religion as such, is it?

Dilip said...

Tarunabh,

You are right that India does not have a separate blasphemy law. But the relevant IPC provisions are worded broadly enough to cover this also. Both s.295A and 298 use words such as 'outrage/wound religious feelings of any class...' which could very well be used to any statements pertaining to religious figures or doctrine. Contrast this with the narrow language that defines religious hatred now in England - as hatred against a group of persons defined by religious belief and the material or behavior needs to be 'threatening'.

As for the intent requirement of the IPC provisions, I am not aware of any authoritative Supreme Court pronouncement laying down the law (please post if you happen to know of any). The words 'deliberate and malicious intent' do suggest that the offense is not one of strict liability and the bar may well be higher than in English common law.

There is an interesting discussion on this question in Narayan Das and Another v. State (1951). Here J.Narasimhan draws a parallel between the use of the words 'willful intention' in Russell's definition of the English law of blasphemous libel and 'deliberate intention' used in section 298 calling them 'almost synonymous'. The use of these words 'wilful intention' came from a portion of the judgment of Lord Coleridge in R v. Ramsey and Foote (1883) (actually a textbook quotation that he recited) but this part of the opinion was rejected as not being authoritative in Lemon. So that analogy may no longer hold. The other point he makes which is still valid is the use of 'deliberate and malicious intent' in s.295A, 'deliberate intent' in s.298 and 'intent and knowledge' in s.297 and s.295. From this, he concludes that deliberate intention might be inferred if the intention to wound is either premeditated or the words used in the discussion were not in good faith. Whether 'deliberate intent' is different from 'deliberate and malicious intent' is again not very clear. In Lemon, Lord Scarman quoted F.L.Holt approvingly as saying 'malice, in legal understanding implies no more than willfulness' but that would seem to render the word redundant. Another case with a discussion on this is Shalibhadra Shah and Others v. Swami Krishna Bharati and Another (1980) but I did not find it as illuminating.

Dilip said...

Dear Tarunabh,

Thanks for all the files. As you said, Balwant Singh v. State of Punjab is the relevant and clearly lays down that 'intent to promote enemity' must be shown for successful prosecution under 153A. The words in the two instances are however a little different: 153A only uses the words 'promote or attempt to promote' whereas 295A and 298 use the word 'intent'. The key question though is not so much whether there is a mens rea requirement here - there clearly is - but how it is inferred: is the intent to pen an article or give a speech that the judge finds prima facie to be insulting and wounding religious sentiment sufficient or does the prosecution also have to establish it based upon whom the author/speaker was targeting and how he might reasonably have construed their expectations and response? In other words, if the author's intent to cause insult is required, is it with reference to those who are being addressed at that time and place or any segment of the wider public whom the material may reach in due course? A speaker or writer has at least a rough idea of the taste and expectations of his/her target audience but the same cannot be said of the larger public where views, beliefs and sensitivities can be far more diverse.

That was the question in Lemon as well. The author who composed his sex-with-Jesus poem was a well-known poet with a history of writing on religious themes penning his work in a low circulation newspaper dedicated to gay people (and apparently offering them the hope of salvation) who were not at all offended to read it. But the jury which looked at the work itself found it offensive and the Lords upheld this on the ground that intent to publish was sufficient. One could argue that under 295A, things would have been different and he would have been acquitted because no deliberate and malicious intent to insult is established.

Comment continued....(see below)

Dilip said...

Comment continued from above:

The flip side of that is that it could render the provision toothless. All that a political leader has to then do is convene a group of the already converted (like say, a party leader preaching to his faithful), make strong observations in front of them and then allow the material to be leaked to the press which, in this current age, can be expected to be disseminated widely almost instantaneously. Since it was meant to an audience who were not and could not have been offended, he could easily get away with claiming that his primary motive was not to insult anyone, merely to motivate his audience or alleviate their concerns. Being a consensual affair, any benefit of doubt would have to favor him. S.298 could potentially lend itself to such a meaning because it circumscribes the reach of the provision to words within the hearing or sight of the person but no such limitation is placed in s.295A. This indicates that 295A was probably meant to have a broad reach to cover virtually any offending material regardless of what the author might have anticipated or intended. Given that it was enacted through an amendment in the aftermath of the Rangeela rasool case (see venkatesan's post on this), a more expansive interpretation that mirrors English law might make sense.

Usually Indian courts take an overall view looking not just at the pamphlet or speech but the occasion, how learned the author is, the likely effect of the words on his target audience, etc. But if the judge considers the objectionable nature of the material to be self-evident, the writer's beliefs and explanations are disregarded. Babu Rao Patel v. State of Delhi which you cited is a good example where the conviction was upheld solely on the basis of the content of the articles in question. This suggests that the current Indian legal position is best captured by Lord Abbott's jury instruction on whether malicious intention is necessary for a libel conviction:

'The man who publishes slanderous matter, in its nature calculated to fame and vilify another, must be presumed to have intended to do that which the publication is calculated to bring about, unless he can shew the contrary; and it is for him to shew the contrary.’

tarunabh said...

dear dilip. thanks very much, this is very informative. i just think that the indian judiciary has done the right thing by rquiring a very high intent threshold for these provisions. criminalising speech is murky business, so i am glad the threshold is high.
perhaps some of your concerns regarding communal politicians can be addressed by the fact that there is a separate criminal provision against them in the representation of peoples act, where the intent requirement (i think) is lower. i can send you some key cases under RPA if you want.