Editorial
A limited right to free speech is not enough
The judgement in the Perumal Murugan case shows this yet again
Percy
Bysshe Shelley famously called poets the “unacknowledged legislators of
the world”. Christopher Hitchens—part of the cohort of writer
provocateurs that emerged from England in the 1970s (Salman Rushdie,
Martin Amis and James Fenton were some of the others)—would echo Shelley
almost two centuries later in Unacknowledged Legislation: Writers in the Public Sphere,
arguing in favour of the role played by writer in the politico-cultural
life of a state. It is an ideal with a long civilizational history.
Rushdie, as it happens, was cited in the judgement handed down by
the Madras high court on Tuesday granting relief to Tamil author Perumal
Murugan. It is a welcome redressal of the persecution Murugan has faced
for over a year now for his novel Mathorubhagan (translated into English as One Part Woman),
depicting the social pressures exerted upon a childless couple in
Tiruchengode, Tamil Nadu—and the wife’s eventual participation in a
religious festival where sexual intercourse with strangers is permitted
in order to conceive.
As per the caste-based
groups that protested against his book, the political and cultural ambit
of writers like Murugan should be circumscribed by easily bruised
public sensibilities. And state functionaries seemed to agree with them,
coercing Murugan into acceding to the protesters’ demands in the name
of law and order. Here, however, is the real problem: the judgement
notwithstanding, India’s legal framework actively enables such an
approach when it comes to freedom of expression.
Section 295A of the Indian
Penal Code (IPC), introduced in 1927, is aimed at punishing writers who
offend the religious beliefs of any group. At the time, Lala Lajpat Rai
and Muhammad Ali Jinnah spoke against it, arguing that it would be used
to obstruct scholarly research and social reform. The decades have
proved them right. The first amendment to the Indian Constitution did
more damage, hedging the freedom of expression guaranteed by Article 19
of the Constitution with ambiguously worded caveats that are open to a
range of interpretations and misinterpretations. Jawaharlal Nehru and
B.R. Ambedkar, among others, allowed the exigencies and fears of
post-Partition politics to subvert a tenet of liberal democracy, Shyama
Prasad Mukherjee’s opposition notwithstanding.
In a perverse way, the Madras
high court judgement reveals the extent of the damage this has done to
the manner in which the right to free speech is perceived in India at
every level—public, political and judicial. Laudable as the verdict is,
the bench arrives at it by examining Murugan’s novel and the charges
levelled at it within a framework of religious sentiment, obscenity and
intrinsic value and original intent of a work of art. It finds in
Murugan’s favour on each of these counts—but the mere fact of judging a
work of art on these criteria reinforces their validity. It is an
implicit acknowledgement that banning a book or a movie would be
justifiable if it falls afoul of any of them.
This is incompatible with the
spirit of free speech. And it leaves individuals exercising their right
to expression at the mercy of public opinion and judicial
interpretation. For every Murugan, there is a Devidas Ramachandra
Tuljapurkar, against whom the Supreme Court upheld charges of obscenity
last year for writing an “objectionable” poem about M.K. Gandhi. Taslima
Nasreen, Rushdie, M.F. Husain, M.M. Kalburgi, Deepa Mehta—the list of
individuals whose rights have been encroached upon is extensive. The
Supreme Court’s 1989 judgement placing the burden of maintaining law and
order upon the state—a common excuse for caving to offended groups—has
had little practical effect.
The right to free speech is
the right to offer offence. Libel and slander laws exist to offer
reasonable recourse to those who believe they have suffered from the
exercise of that right. No other restrictions can truly be justified; it
is well past time the relevant provisions in the IPC and Constitution
were revisited. Shelley’s unacknowledged legislators have been let down
by their elected counterparts in India.
