The Republic of Hurt Sentiments - India must rethink religious hate speech laws

From: The Hindu, February 9, 2012

The Republic of Hurt Sentiments

[by] Mukund Padmanabhan

The protest-readings from Salman Rushdie's The Satanic Verses must force a rethink of our religious hate speech laws and what they mean for freedom of expression.

As the controversy over the protest-readings from Salman Rushdie's The Satanic Verses raged, I found myself pitched in the middle of more than one discussion of a legal nature at the Jaipur Literature Festival. A sample of the questions debated. Is it illegal to read from a proscribed book? Is it prohibited to read even the inoffensive portions? Since Mr. Rushdie's novel was banned under customs law, doesn't any proscription apply only to the import of the book? And surely, by implication, not the mere printing and downloading of a few pages from it?

Such questions presume there exists a specific law or some legal precedent that can conclusively settle the legality or otherwise of the readings by four writers, who sought to express solidarity with Mr. Rushdie and protest against those who prevented, and colluded in preventing, his visit to the Festival. The truth is that no such thing exists. Those who were looking for such clear cut answers were asking — in the Indian context — the wrong kind of question.

It isn't what the four ‘Rushdie readers' did that was germane. It was what could be done unto them, thanks to our much misused hate speech laws. The two Jaipur city courts that initiated proceedings earlier this week against a JLF organiser and the four writers (Hari Kunzru, Amitava Kumar, Jeet Thayil and Ruchir Joshi) are not going to be dealing with the kind of questions raised above. The complaints before them, and three other courts in Rajasthan's capital, are based on the claim that Muslim sentiments have been hurt by the readings from The Satanic Verses.
Umbrella term

Hate speech is an umbrella term that covers any form of expression that disparages people on the basis of social characteristics such as race, community, religion, gender and sexual orientation. The intentions behind laws governing such expression (for example, protecting minorities from abhorrent diatribes) are generally blameless. The problem, however, is that the laws are inherently vague and subjective. There is no objective way of distinguishing between unacceptable hate speech and an acceptable rant. There is no way of determining what will outrage the sentiments of someone. In this respect, hate speech laws bear a close resemblance to the law on criminal contempt — as the media have learnt over the years, it's impossible to tell what will scandalise a judge.

The laws operate in a manner that allows those who claim to be offended or insulted to lay down what constitutes hate speech. It is an insidious form of censorship and control. And in India, it assumes truly sinister proportions because of a dangerous cocktail of circumstances — a citizenry that takes offence much too easily; governments and political parties that prefer to collude with the malcontents rather than stand up for free expression; and courts that are willing to entertain what are clearly frivolous petitions. The controversy over the ‘Rushdie readings' has all three ingredients in the brew.

That some forms of harmful speech (defamation, plagiarism, etc.) must be prohibited is universally accepted. But should mere offensiveness be a ground for proscription? John Stuart Mill didn't think so. In his classic defence of free speech in On Liberty, Mill maintained that the only justification for silencing a person against his will (or restraining him from living the way he chooses to) is to prevent him from causing harm to others. His so-called ‘harm principle' has found expression in the widely accepted principle that explicit and unequivocal incitements to violence are a valid ground for curbing free speech and expression.

Hate speech laws require no such stringent condition. The United States, where the First Amendment trumps restrictions on hate speech, is unique. But most other countries and their legal systems accord a much greater play for people's sentiments and sensitivities.

Predictably, the complaints against those who read The Satanic Verses have sought registration of FIRs under two familiar and overused Sections 153 A and 295 A of the Indian Penal Code. The former makes it an offence to say anything that “promotes disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes and communities.” The latter singles out religious sentiment and punishes those who intentionally outrage religious feelings or insult any religion or religious belief held by Indian citizens. Introduced in 1927, Section 295 A protects all religions equally — a kind of egalitarian and abridged blasphemy law.
‘Marketplace for outrage'

The law takes the feelings of offended groups — religious fundamentalists, language chauvinists, caste formations — very seriously. It has helped to feed what Monica Ali described in another context as a “marketplace for outrage” — a new economy that thrives on emotion, one in which “if the feelings run (or are seen to run) high and deep enough, a good price will be fetched.”

The most common source of such outrage is of course religion. Section 295 A of the IPC is intended to apply only when there is a “deliberate or malicious act” to outrage religious feelings. But it has become a handy tool to harass all manner of people, including writers, artists and filmmakers.

We have allowed hurt sentiment in this country to become a cover for aggressive moral vigilantism, an excuse to take the law into one's own hands, and to perpetrate violence in the name of emotional victimhood. Our artistic and cultural freedoms are threatened routinely by violence and vandalism — as during the controversies over M.F. Husain's paintings, Taslima Nasreen's novels and articles, Deepa Mehta's Fire and Water, Jaswant's Singh's book on Mohammed Ali Jinnah, and Pakistan's cricketers playing in India. The colossal irony here is that these belligerent vigilantes usually belong to organisations that make a living out of promoting enmity between different communities and religious groups — the very thing they accuse artists, filmmakers, writers and journalists of doing.

We have become so used to being offended in the name of religion that we rarely stop and ask the philosophical question: why should religious belief or sentiment receive special protection under the law? Is there any rational ground for not extending this privilege to atheists or agnostics? Do we refuse to extend this for merely pragmatic reasons — namely, that non-believers are less likely to get inflamed and turn violent when offended? Is there any basis for maintaining that religious beliefs or religious figures should not be exposed to scorn or ridicule in the manner that secular opinions or worldly figures are?

Such questions may end in only a typically inconclusive philosophical debate. But they draw attention to an important truth. If we must have laws that prohibit offences against religious sentiment, then the very least we must do is to ensure that they apply only in cases of deliberate provocation, where the form of expression — whether words or visuals — is principally designed to humiliate or debase believers. This applies to all hate speech laws, including those that apply to causing offence on the basis of class, race, gender or sexual orientation.

The mere criticism of a religion — that is, its religious tenets — can hardly be the basis for taking offence. If no one else, surely the devout should understand this. Whether we like it or not, many of the world's religions do not portray — to understate the point — non-believers in a kindly light. Implicit in the very nature of some religions are the criticism of certain others that find expression in a variety of terms such as infidels, idolaters, pagans, mleccha and so on. So isn't it somewhat hypocritical to be deeply religious — at least in a conservative sense — and at the same time take offence very easily at criticism against your own religion?
Petitions should be thrown out

If good sense prevails, the courts will throw out the petitions relating to the ‘Rushdie readings' — and quickly. Offensive speech must satisfy at least two conditions to qualify as hate speech — it must be a “deliberate and malicious act” and it must pose a clear and present danger to society (as opposed to something “remote, conjectural and far-fetched”, in the Supreme Court of India's words). Using this standard, the four writers who read from The Satanic Verses are not guilty at all. Neither are the JLF organisers, who have been drawn into a murky legal web because of where the readings were staged.

Opinions vary on whether it was appropriate for Hari Kunzru, Amitava Kumar, Jeet Thayil and Ruchir Joshi to have used the JLF platform for the protest-readings, an act which risked bringing the festival to a halt. But there is a more important issue here. If the ‘Rushdie readings' trigger a much larger rethink about our religious hate speech laws and what they mean for freedom of expression, then the controversy would have been well worth the making.

mukund@thehindu.co.in