Economic and Political Weekly, 4 October 2014
Decriminalising Creative 'Offence'
by Srinivas Burra
Banning of books takes place in the name of reasonable restrictions on freedom of speech and expression. Though these laws are of colonial times, they have been upheld through constitutional provisions on the ground of preventing hate speech. While limiting these restrictions to the narrowest possible circumstances of hate speech, it is necessary to draw juridical severance between academic, artistic and creative work, and hate speech, allowing absolute freedom to the former, while preventing the latter.
Srinivas Burra (srinivasb@sau.ac.in) teaches at the Faculty of Legal Studies, South Asian University, New Delhi.
Wendy Doniger’s The Hindus: An Alternative History has become another addition to the longlist of books either banned or withdrawn from circulation in India. This book was withdrawn as a result of the case filed by Dinanath Batra of Shiksha Bachao Andolan Samiti against the author Wendy Doniger and the publisher Penguin India. The publisher entered into an agreement with the plaintiff to withdraw the book from circulation and stop publication in India, and, therefore, the case was not pursued further. Looking at the case from the plaintiff’s side, it is a standard allegation that the book hurts the sentiments of a particular community (in this case, the Hindus) and causes tension between communities (in this case, Hindus and non-Hindus). This is not unusual as it has happened in the past in respect of most of the books either banned or withdrawn.
What is unusual is that the publishers, Penguin India, succumbed, ostensibly, to the pressure of litigation, which it admirably withstood on some previous occasions. What would have been reasonable on the part of the publishers is the continuation of the litigation up to the highest court. This is not to argue that the publisher should defend the right of the authors to their freedom of speech and expression. But, it is the moral responsibility of the publishers to defend a legal case at least in favour of books which they accept to publish. However, what one can derive from this episode would be that defending authors’ right to express their opinion is for the individual author, and publishers cannot withstand, beyond a point, the considerations of market and political pressure.
In this case, the publishers seem to have buckled down to the extent of accepting something that is not related to the dispute. The agreement says that the publisher “submits that it respects all religions worldwide”, though the dispute is not about the religious loyalties of the publisher. In lieu of this, inter alia, the plaintiff agreed to withdraw all the cases against the author and the publisher (Outlook 2014). Penguin India blamed, in its statement, Indian laws as responsible for their action. Wendy Doniger also found fault with Indian laws governing free speech.
Restrictions on Books
Books, like other artistic and creative works, are considered as the scholarly and creative expression of views attributed to the author and the creator. In a normative scheme, this creative engagement with oneself and with others falls under the freedom of speech and expression, which is generally a constitutionally and statutorily protected right in liberal democratic systems. However, this right does not always come as an unfettered one as it is mostly accompanied by certain restrictions as well. In certain situations these restrictions come in the form of criminal prohibitions, an example being hate speeches. This, broadly, is also the case with India.
The banning, criminalisation, or forced withdrawal of books is primarily seen as gagging dissent and difference under the garb of reasonable restrictions on freedom of speech and expression. These restrictions mostly come with a positive agenda of protecting people belonging to certain identities, that is, to prevent hatred or enmity between communities and to prohibit hate speech. Their presence is legitimised on their apparent indispensability in any society with variant social formations. Thus, one arguing against the banning of books has to confront and negotiate with the normative constraints on the freedom of speech and expression, as these constraints justify their existence on the necessity of protecting the interests of certain groups.
Freedom of speech and expression in India is protected by Article 19(1)(a) of the Constitution as a fundamental right. Article 19(2) moderates the scope of this right by permitting the imposition of reasonable restrictions “in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”. The original Article 19(2) was amended through the first amendment to the Indian Constitution.1 This amendment was brought in as a response to some of the judicial pronouncements which nullified measures under some laws or the laws themselves as they were found to be unconstitutional in accordance with Articles 19(1)(a) and 19(2). The discomfort felt by the then government with those judicial pronouncements was articulated in the Statement of Objects and Reasons of the First Amendment Act of 1951, as stated by Jawaharlal Nehru, which says:
During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom (GoI 1951).
This statement juxtaposes the freedom of speech and expression with the misuse of such freedom to the extent of propagating hatred and violence which continues to be the standard argument for any form of restraint on free speech. There was opposition to this amendment, which was intended to expand the scope of restrictions, as some argued that it would bring in colonial legacy and further curtail the freedom of speech and expression. Despite such opposition, the amendment was made to Article 19(2) of the Constitution. Thus, free speech in India is not absolute and it comes with certain statutorily defined restrictions.
Criminalisation of Restrictions
The reasonable restrictions as stated in Article 19(2) of the Constitution are transformed into operational form through various other statutes. The law that actualises these restrictions is found mainly in the Indian Penal Code (IPC), the Criminal Procedure Code (CrPC), and also in other statutes. The most cited provisions of the IPC in this regard are Sections 153A and 295A. They became part of the Indian penal system during the British rule and underwent modifications at different times through amendments to the IPC.2
Section 153A is intended to prevent spoken or written words and acts that promote “enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony”. The constitutional validity of this provision was challenged as it was argued as contravening Article 19(1)(a) of the Constitution. The then East Punjab High Court declared it unconstitutional as imposing unreasonable restrictions in Tara Singh vs The State.3 However, after the first amendment to the Constitution in 1951, the provision was found to be valid in subsequent cases.4
Similarly, Section 295A is meant to prevent “deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs”, by way of spoken or written words, or by signs or visible representations, or otherwise. Constitutional validity of this section in relation to public order was upheld by the Supreme Court of India in Ramji Lal Modi vs The State of UP.5
The substance of these provisions is to prevent any kind of hate speech that may create enmity between different groups, or targets a particular group as defined therein. Most of the books banned or prevented from circulation in India were in accordance with these provisions. The procedure to be followed for that purpose is laid down in the CrPC. Section 95 of the CrPC6 empowers the state government to ban books under conditions mentioned therein. In addition to it, the central government may issue a notification prohibiting the import or export of goods under Section 11 of the Customs Act, as was the case with Satanic Verses written by Salman Rushdie.
These provisions essentially criminalise hate speech. However, they not only criminalise spoken words but written text too, and, therefore, include all forms of written texts, including academic works like The Hindus: An Alternative History. The provisions that deal with hate speech do not distinguish between malicious speech and word, and academic and literary works. Whenever a book is banned or targeted with litigation by individuals and groups, it is seen as an affront to the freedom of speech and expression. Despite such criticism, the state and often organisations of religious persuasion resort to criminal litigation against the authors and book publishers.
Thus, the questions arise: Is it imperative that the existing constitutional and statutory framework needs to be revised to give way to an unfettered freedom of speech? Is it that any form of restraint is antithetical to freedom of speech and expression? Or, is it that in an identity-based and hierarchical social reality, reasonable restrictions of specific nature would prevent hate speech and hate crimes and should be seen as an essential component of free speech?
The present laws, including the IPC and other statutory provisions that deal with criminalisation of certain forms of speech and expression, are constitutionally upheld as reasonable restrictions. While taking that into consideration, if the freedom of speech and expression is contextualised in relation to the banning or withdrawal of books, a few possibilities may be explored in terms of bringing in changes in the existing constitutional and statutory framework in India.
Absolutist Freedom
One possibility is to argue for the laissez-faire view of the freedom of speech and expression. That is, to argue against any form of restriction and seek absolute freedom, which implies that those words and speech which are found to be offensive in any form may be defeated through counter speech and expression, and not by imposing restrictions. This is considered as the marketplace of ideas, where ideas counteract each other, and the acceptable ones or those ideas which are reflective of truth would prevail over the other. This idea of freedom for every idea to be allowed to be expressed, coming from the views of J S Mill and others, was taken into American constitutional jurisprudence through the dissenting opinion of Judge Oliver Wendell Holmes in the case of Abrams vs United States in 1919 (Ingber 1984). Based on the first amendment to the United States (US) Constitution, views like “the marketplace of ideas” provide lesser restrictions on the freedom of speech and expression in the US in comparison to many other countries.
In India, the hate speech-related provisions, which are the same as those invoked for banning books, in the IPC were added through amendments during the colonial rule at different times. This was purportedly to maintain religious and communal harmony in India. Whenever these provisions are invoked mainly for banning books, their continuation, which have colonial origins, is seen as an unwanted colonial legacy which can be done away with. Without denying the discursive value of tracing the origins of these provisions to colonial times, one cannot ignore the fact that hate speech prevention provisions have become part of the progressive human rights discourse at the international level and domestic levels of various countries.
Therefore, international human rights treaties make specific reference to prevention of hate speech. An example of this is Article 20(2) of the International Covenant on Civil and Political Rights, which says that “(a)ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. A similar provision is also found in the International Convention on the Elimination of All Forms of Racial Discrimination.7 These provisions prohibiting hate crime have become part of the human rights corpus seeking state parties to these treaties to criminalise such acts. Such criminalisation is seen as protection of human rights than merely as punishing the criminals.
Thus, the criminalisation of hate speech, despite being colonial in its origins in the Indian context, has come to constitute an important component of the human rights framework. The hate speech provisions, which essentially operate as restrictions on freedom of speech and expression, seek legitimacy through the language of human rights protection of certain groups. Apart from penal code criminalisation, there are also restrictions imposed on speech and expression in some progressive legislation in India like the prohibition of the egregious practice of untouchability.8
Therefore, an argument for absolute freedom of speech and expression would ignore the possibility of misuse of such freedom leading in certain situations to hate crimes. Hate speech provisions having attained their legitimacy through progressive human rights discourse are seen as an inevitable component of the freedom of speech and expression framework as reasonable restrictions in certain circumstances. Thus, opposing banning of books while relying on absolutist freedom may be tantamount to justifying every form of speech, including hate speech.
However, a contrarious position as it exists today would essentially justify banning of books and criminal proceedings against the authors for hate speech. Hence, it becomes necessary to negotiate between academic, artistic, and creative freedom, and the inevitable minimum restraints on the freedom of speech and expression to prevent hate speech.
Delinking Creative Work from Hate Speech
Academic, artistic and creative expressions of views may not always necessarily be acceptable to all, and may go against the established norms and belief systems. However, that should not be the ground for banning of such works as these actions would lead to silencing any form of dissent to the dominant views. Therefore, they need to enjoy absolute freedom while limiting the scope of criminalisation to certain forms of speech which could be considered as hate speech. The criminalisation of speech can be made possible only in situations of violence and fragile social relations. A juridical severance has to take place between academic works and hate speeches that lead to criminal acts, while granting complete freedom to the former despite its potentially offensive nature, at the same time making the latter criminal in specifically defined circumstances.
In other words it should be made clear that every form of academic, artistic and creative work should be left for evaluation by counter opinions than by the state to criminalise the same. The emphasis of this juridical severance should be on protecting academic works like Wendy Doniger’s book, while preventing the possibility of hate crimes in certain situations.
Conclusions
Sections 153A and 295A are colonial continuities which are in contradiction to the postcolonial constitutional structure of India, where freedom of speech and expression are explicitly protected by the Constitution. However, one cannot ignore the fact that the continuity of these provisions or similar such provisions is not merely a colonial legacy, notwithstanding their colonial origins, as they owe their existence to the very Constitution which guarantees freedom of speech and expression, as it also permits reasonable restrictions. Similar measures against hate speech have been resorted to increasingly after the second world war in many countries. They have also got their legitimacy through the international human rights framework. Therefore, any argument for elimination of these provisions in favour of absolutist freedom needs to be evaluated against the backdrop of compulsions for prevention of hate speech in certain circumstances.
However, the scope of these criminal provisions became expansive in their application to include every form of speech, including academic, artistic and creative works. Hence, it is of necessity to make a juridical distinction between academic, artistic and creative works, and hate speech, and allow the former to enjoy absolute freedom while limiting the criminalisation of the latter in certain circumstances.
Notes
1 First amendment to the Indian Constitution added friendly relations with foreign states, public order and incitement to an offence as the grounds on which reasonable restrictions can be imposed. The text of the Article 19(2) before the first amendment read as follows: “nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to, libel, slander, defamation, contempt of Court or any matter which offends against decency or morality or which undermines the security of, or tends to overthrow, the State.”
2 Sections 153A and 295A were added to the IPC in 1898 and 1927, respectively.
3 Tara Singh vs The State, All India Reporter, 1951, Punjab, 27.
4 Sheikh Wajih Uddin vs The State, All India Reporter, 1963, Allahabad, 335, and Gopal Vinayak Godse vs Union of India, All India Reporter, 1971, Bombay, 56.
5 Ramji Lal Modi vs The State of UP, All India Reporter, 1957, 620.
6 Section 95 of the CrPC reads as follows: “Power to declare certain publications forfeited and to issue search warrants for the same. Where
(a) any newspaper, or book, or
(b) any document, wherever printed, appears to the State Government to contain any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 292 or section 293 or section 295A of the Indian Penal Code…, the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government”.
7 Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination reads:
“State Parties…
(a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;
(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law.”
8 Section 7(1)(c) of the Protection of Civil Rights Act of 1955 makes punishable words either spoken or written, or signs or visible representations or otherwise, that incite or encourage any person or class of persons or the public generally to practice untouchability in any form whatsoever.
References
GoI (1951): “Statement of Objects and Reasons Appended to the Constitution (First Amendment) Bill, Which Was Enacted as the Constitution (First Amendment) Act, 1951”, Legislative Department, Ministry of Law and Justice, Government of India, viewed on 14 March 2014, http://indiacode.nic.in/coiweb/amend/amend1.htm
Ingber, Stanley (1984): “The Marketplace of Ideas: A Legitimising Myth”, Duke Law Journal, 1984(1): 1-91.
Outlook (2014): “Penguin to Withdraw ‘The Hindus: An Alternative History’”, 11 February, viewed on 14 March, http://www.outlookindia.com/article.aspx?289467
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