July 18, 2008

Freedom of Speech: Supreme Court stays the summons to Ashis Nandy

(Frontline, July 19 - Aug. 01, 2008)


Hate and abuse

in New Delhi

The Supreme Court stays the summons issued to Ashis Nandy for writing an article critical of Gujarat’s middle class.


ASHIS NANDY, POLITICAL psychologist. A file photograph.

On July 1, a Supreme Court Bench comprising Justices Altamas Kabir and G.S. Singhvi expressed its anguish at the growing intolerance over free expression of one’s views. The occasion was the hearing of the plea of the political psychologist Professor Ashis Nandy of the Centre for the Study of Developing Societies, New Delhi, for protection against arrest or detention by the Gujarat Police. Nandy feared that a first information report (FIR) registered against him at the Satellite Police Station in Ahmedabad in May would enable the Gujarat Police to arrest him whenever he travelled out of Delhi, especially to a State ruled by the Bharatiya Janata Party or its allies.

Nandy moved the Supreme Court after the Delhi High Court refused to grant him anticipatory bail. Even as the Supreme Court was hearing his plea, the Gujarat Police issued a summons to Nandy, which only vindicated his fears. The Bench not only stayed the summons but expressed its serious concern over the State government’s handling of the issue. It observed that Nandy was harassed because he was a soft target. It found nothing objectionable in Nandy’s article, published in The Times of India, which became the cause of action against him by the Gujarat Police.

The stinging article, which appeared on the newspaper’s editorial page on January 8, deplored the culture of Gujarat’s urban middle class. Titled “Blame the Middle Class”, it analysed the political situation in Gujarat in the aftermath of the Assembly elections in December 2007. Arguing that development in the State justifies amorality, abridgement of freedom and collapse of social ethics, Nandy alleged that Gujarat’s cities and, particularly, educational institutions were turning into cultural deserts.

He suggested that the urban middle class in Gujarat had found in militant religious nationalism a new self-respect and a new virtual identity as a martial community, in the way in which Bengali babus, Maharashtrian Brahmins and Kashmiri Muslims at different times have sought salvation in violence. In Gujarat, he said, this class had smelt blood for it did not have to do the killings but could plan, finance and coordinate them with impunity. The middle class, he said, controlled the media and education, which had become hate factories in recent times.

Read as a whole, the article has to be considered as an appeal for introspection so that ultimately Gujarat’s traditions of peace and tolerance triumph over what he called the culture of the State’s urban middle class.

But the article’s reformist objective did not register on the State’s thought police. The National Council for Civil Liberties (NCCL), Ahmedabad, a non-governmental organisation (NGO), which is apparently in pursuit of goals not in keeping with what its name proclaims, found the article objectionable under the law. In his complaint to the Satellite Police Station, NCCL president V.K. Saxena alleged that Nandy committed the offence that came under Section 153A and 153B of the Indian Penal Code (IPC). Section 153A deals with the offence of promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, and so on, and doing acts prejudicial to maintenance of harmony. Section 153B deals with imputations and assertions prejudicial to national integration.

A sample of sentences in the article which Saxena mentioned in his complaint as constituting the above offences is as follows:

■ The Hindus and the Muslims of the State – once bonded so conspicuously by language, culture and commerce – have met the demands of both V.D. Savarkar and M.A. Jinnah. They now face each other as two hostile nations.

■ Gujarat has already disowned the Indian Constitution and the State apparatus has adjusted to the change.

■ The actual killers are the lowest of the low, mostly tribals and Dalits…. And they receive spirited support from most non-resident Indians who, at a safe distance from India, can afford to be more nationalist, bloodthirsty, and irresponsible.

Considering the gravity of these offences, the lawmakers have provided for certain safeguards against the misuse of the IPC provisions by individual complainants against well-intentioned citizens. Thus, Section 196(1) of the Code of Criminal Procedure (CrPC) provides that no court shall take cognisance of these offences except with the previous sanction of the Central government or of the State government. The Gujarat High Court had held in a case in 1981 that the government, being an independent party not connected with the dispute between a complainant and the accused, was expected to act fairly and to make an objective decision in the matter whenever it was called upon to grant sanction under Section 196(1).

On April 15, the State government accorded sanction under Section 196(1), which helped Saxena to file his complaint with the police.

To understand how the State government accorded sanction without application of mind to the facts of the case, the object of Section 196(1) CrPC must be first spelt out. This section aims to prevent unauthorised persons from intruding in matters of state by instituting prosecutions and to secure that such prosecutions, for reasons of policy, shall only be instituted under the authority of the government. It was envisaged that an article may deal with social reform without intending to outrage the religious feelings of any class of citizens. In such a case, if the government is of the opinion that the author of the article has objectively attacked certain phenomenon or dogmas with a view to bringing about social reform, the government may refuse sanction, to avoid restricting the freedom of expression.

But neither the complainant nor the State government appears to have noted the following sentence in the article, which explains its whole thrust. Nandy wrote:

“Is there life after Modi? Is it possible to look beyond the 35 years of rioting that began in 1969 and ended in 2002? Prima facie, the answer is “no”. We can only wait for a new generation that will, out of sheer self-interest and tiredness, learn to live with each other. In the meanwhile, we have to wait patiently but not passively to keep values alive, hoping that at some point will come a modicum of remorse and a search for atonement and that ultimately Gujarati traditions will triumph over the culture of the State’s urban middle class.”

Neither the legal notice issued by Saxena to Nandy, nor the FIR registered by the Satellite Police Station, refer to this crucial paragraph in the article which only proves that Nandy’s intentions were impeccable.

In Manzar Sayeed Khan vs. State of Maharashtra, a case dealing with the police action taken against the author (James Laine) and publishers of the book Shivaji under Section 153A IPC, the Supreme Court said on April 5, 2007, that for the purpose of Sec. 153A, “the matter complained of must be read as a whole. One cannot rely on strongly worded and isolated passages for proving the charge nor indeed can one take a sentence here and a sentence there and connect them by a meticulous process of inferential reasoning.”

In this case, the Supreme Court not only restrained the Maharashtra government from proceeding against Laine and the publishers of his book, but observed: “It is the sole responsibility of the State to make positive efforts to resolve every possible conflict between any of the communities, castes or religions within the State and try every possible way to establish peace and harmony within the State under every and all circumstances.”

It will be useful to understand the origins of Section 153A. The section was part of the IPC when it was originally enacted in 1860. Although it was enacted by the British during colonial rule, it was not inspired by any antipathy towards free speech. As Soli Sorabjee observes in an article, the rationale underlying this provision is the maintenance of public peace and tranquillity in a country where religious passions can be aroused easily.

In 1886, a Select Committee was appointed to submit a report in connection with the enactment of Section 295A in the IPC, which punishes insult to religion. A member of this committee, P. Ananda Charlu, described the enactment of Section 153A “as a dangerous piece of legislation and has been impolitic (among other reasons) by necessitating government to side with or to appear to side with one party as against another. In my humble judgment, it will only accentuate the evil which it is meant to remove. Far from healing the differences which still linger, or which now and then come to the surface, it would widen the gap by encouraging insidious men to do mischief in stealth….”

Charlu’s objection was not only perceptive but prophetic. Provisions such as Sections 153A and 153B IPC (which was inserted in 1972) prohibiting hate speech and expression have over the years led to a disturbing degree of intolerance and unreasonable interference with the freedom of expression. That is why powers given to a government under Section 196 of the CrPC to prevent their abuse must be objectively and transparently exercised. The Nandy case raises serious questions on whether the political executive, entrusted with this responsibility, can be trusted to ensure high standards of objectivity and transparency while exercising its powers.