The Supreme Court Moves To Defend Free speech

(The Hindu, July 4, 2008)

Strong message to the intolerant

Editorial

The Supreme Court’s quashing of the summons issued by a Gujarat court to political scientist Ashis Nandy should send a strong message not just to harassers of free speech, including intolerant state governments, and religious and chauvinistic groups, but to the lower judiciary as well. The summons were issued on a first information report (FIR) registered by the Gujarat police on the basis of a complaint filed by a non-government organisation that his analysis of the 2007 Gujarat elections published in The Times of India in January tended to promote enmity among different groups and was derogatory to the state as a whole. The Supreme Court bench found that Dr. Nandy’s academic analysis was hardly the incendiary material it was alleged to be and the attempt to prosecute him was only a demonstration of intolerance. This is the latest in a series of court orders that have sought to protect writers, artists, film makers, entertainers, and public personalities from harassment through frivolous cases filed by intolerant religious or regional forces, self-proclaimed enforcers of morality, and governments. In May, the Delhi High Court quashed proceedings in three cases in which the renowned painter M.F. Husain was charged with painting Hindu gods and goddesses in an objectionable manner. The Supreme Court itself had earlier come to the rescue of Richard Gere, who was sought to be arrested and prosecuted for his demonstrative gesture of kissing Shilpa Shetty.

That the Supreme Court and the high courts should step in to prevent the harassment of writers and creative artistes through the abuse of the legal process is not a surprise. What is disquieting is that despite repeated judicial pronouncements, there seems to be no let-up in the attempts to silence free speech and expression that some group or the other finds objectionable. In part, that is due to the overly broad interpretation by the lower judiciary of what constitutes an offence under Section 153-A of the Indian Penal Code, which deals with writings and creative activities that promote “disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups, or castes or communities.” Often enough, magistrates are persuaded by vocal and powerful religious or chauvinistic groups playing upon local sentiments to take up cases and issue summons on the most frivolous grounds. They would do well to heed the caution urged by the Delhi High Court while quashing the cases against Mr. Husain that they should strictly scrutinise frivolous and vexatious complaints that impinge on the basic freedom of an individual. The intolerant need to be told clearly and firmly of the level of tolerance called for in a democratic society. While court orders in specific cases illustrate what cannot be considered objectionable, the Supreme Court in the case relating to the film Ore Oru Gramathile had adopted a broad standard that “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.” The permissive legal culture that provides any bigot a forum to turn perfectly acceptable speech or expression into a crime and harass writers and creative artistes is clearly in need of an attitudinal, if not structural, overhaul.