I find Mr.Srinivasan’s arguments in the Comments section very compelling, insofar as it contends that might is not always right, and that to insist on might, that is, numbers, to assess whether the protest against an alleged insult is widely shared by the bulk of a religious population is putting a higher threshold limit, than what may be warranted. I see his point: that majority of Hindus are docile, and tolerant of insults to their religion, because it is not homogenous, or as organized as other religions, to register an effective protest. Therefore, absence of widespread protest should not be construed as a licence to an attempt to insult religious sentiments.
I think we need to look at in a different way. I did not suggest that the authorities should actually do a head-count of the protestors against an alleged act, or form a prima facie opinion whether the protest and the feeling of outrage is widespread cutting across all sections or limited to a group of hardliners. These are very difficult questions to be assessed in a given situation, even though they may be relevant inputs to a decision to ban.
The practical test would be to see whether if an alleged insulting act is allowed to continue, it would lead to breach of public peace, from the point of view of a reasonable and prudent citizen. In the fire-crackers case, the Bombay High Court rightly came to a conclusion that the printing of goddess pictures on fire-cracker wrappers was unlikely to lead to breach of public peace, because it had been done for a long time, and none had objected. The petitioner in this case contended that the labels carrying the divine pictures got mutilated, wasted, and thrown into the dust-bin, and subjected to all sorts of indignities. But the Court was unconvinced, suggesting that the petitioner could stop firing crackers if he felt outraged.
In the Vadodara case too, if Chandramohan’s exhibition was allowed to continue for restricted viewing by his peers, it was unlikely to have led to breach of public peace. It was only because the Bajrang Dal volunteers stormed into the exhibition on the basis of a probable tip-off, and sought his arrest amidst media glare, it came to public notice, and passions were aroused, leading to a threat to breach of public peace by a small group of hardliners, claiming to represent the majority of Hindus, backed by powerful State machinery.
Put in this context, I agree, the police mistakenly thought it had no option, but to arrest Chandra Mohan, aiming to prevent further breach of public peace by those who want to take law into their hands. Remember it was against this tendency, the Supreme Court ruled in the Ore Oru Gramathile case, when the Tamil Nadu Government sought to ban a film, because it feared it would lead to breach of public peace. The Court had held that maintenance of law and order was the State’s responsibility, and merely because there was a threat to the breach of public peace, rights cannot be curtailed.
In Punjab, if you look at the way the events unfolded, the clergy in the SGPC, first wanted to give 10 days ultimatum to the Dera chief to apologise and make amends for the perceived insult caused by him to the Sikh religion. But the agitation forced SGPC to reduce it to three days. Thus it was a case of the clergy succumbing to the general public outrage, rather than the clergy dictating the tone and tenor of the protest. I think Mr.Srinivasan’s point about lathi and sword wielding protesters forcing the submission of the majority of the Sikhs is misplaced. These are cultural symbols, and have been used to give vent to their sense of outrage. It is futile to look for a parallel between Vadodara and Punjab incidents, even though they appear to be similar in the sense, religious groups were in the forefront of the protests in both. It is true that in Punjab, the former terrorists have got a fresh issue to mobilize themselves, and fish in troubled waters. But that is no reason to underestimate the sense of outrage, caused by Dera chief’s public display of the alleged act of insult.
I think we need to look at in a different way. I did not suggest that the authorities should actually do a head-count of the protestors against an alleged act, or form a prima facie opinion whether the protest and the feeling of outrage is widespread cutting across all sections or limited to a group of hardliners. These are very difficult questions to be assessed in a given situation, even though they may be relevant inputs to a decision to ban.
The practical test would be to see whether if an alleged insulting act is allowed to continue, it would lead to breach of public peace, from the point of view of a reasonable and prudent citizen. In the fire-crackers case, the Bombay High Court rightly came to a conclusion that the printing of goddess pictures on fire-cracker wrappers was unlikely to lead to breach of public peace, because it had been done for a long time, and none had objected. The petitioner in this case contended that the labels carrying the divine pictures got mutilated, wasted, and thrown into the dust-bin, and subjected to all sorts of indignities. But the Court was unconvinced, suggesting that the petitioner could stop firing crackers if he felt outraged.
In the Vadodara case too, if Chandramohan’s exhibition was allowed to continue for restricted viewing by his peers, it was unlikely to have led to breach of public peace. It was only because the Bajrang Dal volunteers stormed into the exhibition on the basis of a probable tip-off, and sought his arrest amidst media glare, it came to public notice, and passions were aroused, leading to a threat to breach of public peace by a small group of hardliners, claiming to represent the majority of Hindus, backed by powerful State machinery.
Put in this context, I agree, the police mistakenly thought it had no option, but to arrest Chandra Mohan, aiming to prevent further breach of public peace by those who want to take law into their hands. Remember it was against this tendency, the Supreme Court ruled in the Ore Oru Gramathile case, when the Tamil Nadu Government sought to ban a film, because it feared it would lead to breach of public peace. The Court had held that maintenance of law and order was the State’s responsibility, and merely because there was a threat to the breach of public peace, rights cannot be curtailed.
In Punjab, if you look at the way the events unfolded, the clergy in the SGPC, first wanted to give 10 days ultimatum to the Dera chief to apologise and make amends for the perceived insult caused by him to the Sikh religion. But the agitation forced SGPC to reduce it to three days. Thus it was a case of the clergy succumbing to the general public outrage, rather than the clergy dictating the tone and tenor of the protest. I think Mr.Srinivasan’s point about lathi and sword wielding protesters forcing the submission of the majority of the Sikhs is misplaced. These are cultural symbols, and have been used to give vent to their sense of outrage. It is futile to look for a parallel between Vadodara and Punjab incidents, even though they appear to be similar in the sense, religious groups were in the forefront of the protests in both. It is true that in Punjab, the former terrorists have got a fresh issue to mobilize themselves, and fish in troubled waters. But that is no reason to underestimate the sense of outrage, caused by Dera chief’s public display of the alleged act of insult.
As for my “futile” attempt to draw parallels between Vadodara and Punjab, I concede there are vast differences. In one instance a venerated Hindu Goddess was depicted nude. In the other, a wannabe neau “sant” merely dressed up as a venerated Guru. In the first case the lathi wielders were unruly thugs. In the other they were beholders of “cultural” symbols! Of course my attempt was futile.
I am unconvinced about your arguments on SGPC.Irrespective
of public sentiments the state
govt. has a duty to maintain
law and order. When we have govt sponsored bandhs and protests
that is an unrealistic expectation.
.If i remember it right the film was banned by TN govt and the SC reveresed the ban. DMK was in
power and as far as I know the
left did not oppose the ban.
The producer was the then publisher
of The Hindu. Last year also TN
govt banned Davinci Code
but High Court lifted the
ban.I think in India for the left freedom of expression matters
only when they want to use it
against BJP etc. Otherwise
they are often comfortable
with censorship and bans
on flims,books etc.The muted
response from the left to
the attack on Dinakaran
office is an example of this.
In one sense focussing on the
incidents on MS university
ignores the other threats
and attempts to muzzle freedom
of expression.
ravisrinivas
Dear Mr.Srinivasan, I appreciate your pun. But I wish you read the Telegraph article,(the link which I provided) which shows why the Arun Jaitleys who find Chandra Mohan’s painting offensive are probably wrong. I agree the Dera Chief may well be innocent, and had no intention to hurt the Sikh sentiments. But the initial presumption is against him. Still, I would urge separate yardstick to approach these two issues, because Vadodara was essentially a private exhibition, whereas Dera chief’s was a public display.
Dear Mr.Ravi Srinivas,
Where did I suggest that the State Govt/SGPC had no role to maintain law and order, or that the SGPC had some inherent right to disrupt law and order? I am equally against double standards on the issue like you.
…that majority of Hindus are docile, and tolerant of insults to their religion, because it is not homogenous, or as organized as other religions, to register an effective protest. Therefore, absence of widespread protest should not be construed as a licence to an attempt to insult religious sentiments.
Protests are initiated and carried out by a relatively small number of individuals in all cases. I don’t think there is any evidence showing that there is a difference between the vast majority of Hindus and the vast majority of the followers of any other religion in this regard. Even in the recent fracas in the Punjab, I would not doubt that the “vast majority of Sikhs” are not involved, no matter how offended they feel by the DSS group.
The idea that Hindus are “more tolerant” than others is something that many Hindus seem to hold on to dearly even when they are contemptuous of every other facet of their religion. Where this idea came from and why it is so central to many modern Hindus is something I don’t understand fully. (There is a useful discussion of this and many other things in Wilhelm Halbfass’s magisterial “India and Europe: An Essay in Understanding.”)
Btw, why should one not have a licence to insult religious sentiment? Many Christians feel offended at some aspects of Hinduism and vice versa. Should they not say so? Should Richard Dawkins’ recent book “The God Delusion” which takes on all religions be banned? Am I missing something?
The practical test would be to see whether if an alleged insulting act is allowed to continue, it would lead to breach of public peace, from the point of view of a reasonable and prudent citizen.
This is asking for trouble. Do you see the implications of this? All sorts of illiberal groups will be moved towards taking extreme positions knowing that if they can somehow create “a possibility of breach of public peace” then the book/art work will be banned.
Suresh.
With reference to the piece by V.Venkatesan, I think the idea of basing a test on what a ‘reasonable and prudent person’ thinks is likely to disturb public peace is interesting though I am not sure it would work well for several reasons. To decide this, he appears to suggest that, as in the fire-crackers case, judges ought to examine tradition, i.e., ask whether a similar act has, in the past, led to disturbances in public order or has been proscribed before for that reason. This would certainly be a good way to approach the question provided tradition is a reliable indicator of the limits of tolerance. That is not always the case, however, and there are many instances where a similar past act elicited no reaction at the time but in the present, the same action leads to violent protests simply because the organization spearheading the violence is a different one or more powerful now than it was earlier. There may also arise instances where similar actions have been allowed sometimes and banned at others in which case, no proper tradition exists for the judge to rely on and it comes down to what the judge, as a ‘reasonable and prudent ‘citizen, personally finds distasteful (or not). Another problem is that instances of violence that occur in different parts of the country are often localized and instigated by local political considerations; how applicable such local outbreaks of violence are to the rest of country to be counted in the cumulative as a tradition is open to question – for example, had this painting been exhibited in West Bengal, the result could have been entirely different. Taslima Nasreen’s book or the scholarly work of James Laine, on the other hand, elicited violence in West Bengal and Maharashtra respectively whereas no such reaction would have been likely had she or he resided and published the same in Gujarat at the time. My point is simply this: there is no consistent and reliable way to decide a priori what constitutes a threat to public peace before the actual incident and therefore, deciding to punish an individual for an act of expression after the fact claiming that the individual or publisher ought to have known or expected the untoward effects of his work before making it public is an untenable nunc pro tunc application of the law that puts the entire domain of the freedom of speech and expression under the grey zone of ‘reasonable restrictions’ and every artist, writer or speaker, perennially under the threat of conviction for events not under his/her control. The chilling effect this will have on any form of creativity cannot be underestimated. I think the best answer would be for the law commission to draw up a bill for parliament to pass that would include a very specifically written list of various actions and forms of expression that have incited violence in the past and might do so again in the future; state governments or better still, local districts could be granted the authority to waive items on this list. Any individual engaging in an action banned under the list would assume the risk that if public disorder were to arise, he might be held liable. Whatever is not included in the list would be permissible and the state would not prosecute the individual even if violence ensues. The list, which is likely to be long, elaborate and incomplete, can be amended from time to time by the legislature and additional actions included if necessary. That way, it would be much easier for magistrates to decide whether to charge someone, for everyone dependent on the constitutional right to speech and expression for their vocation to be freed from having to endure the ‘due process’ and possible sentence, and for both the government and civil society to know where they stand vis a vis the law.
With reference to the piece by V.Venkatesan, I think the idea of basing a test on what a ‘reasonable and prudent person’ thinks is likely to disturb public peace is interesting though I am not sure it would work well for several reasons. To decide this, he appears to suggest that, as in the fire-crackers case, judges ought to examine tradition, i.e., ask whether a similar act has, in the past, led to disturbances in public order or has been proscribed before for that reason. This would certainly be a good way to approach the question provided tradition is a reliable indicator of the limits of tolerance. That is not always the case, however, and there are many instances where a similar past act elicited no reaction at the time but in the present, the same action leads to violent protests simply because the organization spearheading the violence is a different one or more powerful now than it was earlier. There may also arise instances where similar actions have been allowed sometimes and banned at others in which case, no proper tradition exists for the judge to rely on and it comes down to what the judge, as a ‘reasonable and prudent ‘citizen, personally finds distasteful (or not). Another problem is that instances of violence that occur in different parts of the country are often localized and instigated by local political considerations; how applicable such local outbreaks of violence are to the rest of country to be counted in the cumulative as a tradition is open to question – for example, had this painting been exhibited in West Bengal, the result could have been entirely different. Taslima Nasreen’s book or the scholarly work of James Laine, on the other hand, elicited violence in West Bengal and Maharashtra respectively whereas no such reaction would have been likely had she or he resided and published the same in Gujarat at the time. My point is simply this: there is no consistent and reliable way to decide a priori what constitutes a threat to public peace before the actual incident and therefore, deciding to punish an individual for an act of expression after the fact claiming that the individual or publisher ought to have known or expected the untoward effects of his work before making it public is an untenable nunc pro tunc application of the law that puts the entire domain of the freedom of speech and expression under the grey zone of ‘reasonable restrictions’ and every artist, writer or speaker, perennially under the threat of conviction for events not under his/her control. The chilling effect this will have on any form of creativity cannot be underestimated. I think the best answer would be for the law commission to draw up a bill for parliament to pass that would include a very specifically written list of various actions and forms of expression that have incited violence in the past and might do so again in the future; state governments or better still, local districts could be granted the authority to waive items on this list. Any individual engaging in an action banned under the list would assume the risk that if public disorder were to arise, he might be held liable. Whatever is not included in the list would be permissible and the state would not prosecute the individual even if violence ensues. The list, which is likely to be long, elaborate and incomplete, can be amended from time to time by the legislature and additional actions included if necessary. That way, it would be much easier for magistrates to decide whether to charge someone, for everyone dependent on the constitutional right to speech and expression for their vocation to be freed from having to endure the ‘due process’ and possible sentence, and for both the government and civil society to know where they stand vis a vis the law.
Dear Mr.Dilip,
Thanks for the insightful response. I agree that there cannot be a universal test in a plural society. However, I am doubtful about the feasibility/relevance of preparing a list of past examples where the tolerance limits had been breached by free expression.
The feasibility of the idea is debatable but I do believe it is particularly relevant to the problem here. To give an example of what I mean by a specific list of proscribed expressions in my previous comment, one can have provisions that might run something like asking whether the following are permissible:
[1] Painting of a deity (a)in the nude (b) in the act of giving birth (c) in the background of a toilet or excreta (d) engaged in an act of sexual intercourse
[2] Painting of a prophet or religious saint – if yes, then whether it is permissible to paint such a figure (a) in the nude [Saraswathi painting by M.F.Hussein] (b) engaged in an act of violence with guns, bombs, missiles or other modern weaponry [as in the Danish cartoons case]; if proviso (a) is impermissible, whether it is permissible to potray only (1) the breasts (2) the genitals (3) the buttocks and/or anal cleft of a female figure
[3] Potrait of a living individual in the attire of a prophet or religious saint that is uniquely recognizable [Dera case]
And so forth. A liberal town or city might choose to grant greater liberty to its artists by relaxing some of these provisions whereas a more conservative one might choose to enforce many or all of these restrictions. Drawing up a comprehensive list is obviously not easy and anything prepared would likely not take into account all of the ‘sensitivities’ of every region, group or sect but such problems can always be corrected by amendment from time to time. Artists, libertarians and other free speech advocates can battle out every section with religious conservatives and other self-appointed guardians of public morality and any final version that is passed is likely to end up with support from many quarters.
Another alternative that may be easier to implement given the fractured state of our polity might be for the government to draw up the same as a regulatory framework which will define with similar specificity how the relevant provisions of the penal code would be interpreted. Such a framework might command judicial deference and introduce a greater element of predictability in judicial determinations. Either of these seems to me to be a better alternative than the current system of relying on vaguely defined judicial tests that decide matters on a case by case basis and seem to allow too much latitude for individual subjectivity. Also, it would help cut short the legal process which is arduous and cumbersome to go through, particularly in an era where the number of questionable and outrightly frivolous complaints has multiplied and have been entertained by courts to various degrees.
Dear Mr.Dilip,
Making it as exhaustive as you suggest would make even Khajuraho sculptures blush, and would make them vulnerable to challenge from legal or religious fundamentalists.
And if the Khajuraho sculptures are exempted by law, how is it legally justifiable to bar someone in the modern era to make similar sculptures, for example?
Surveying the spectrum of opinions, it seems like there is only one simple and a wholly consistent position to adopt : no limitation whatsoever on free speech and expression.
If we were to start making exceptions for blasphemy, religious insults, public tranquility, etc, then we start making some value judgments about what constitutes such things.
That would involve some unequal comparisons like the Khajuraho case : sculptures engraved in religious temples in medieval ages with neau artists out to make a buck with religious imagery. It will then cause esoteric questions such as what is art to be answered in clear, precise legal terms.
Not only that, who makes such judgements would undeniably colour the decisions. I am sure we can find different takes on whether a procession of atheists in TN slapping a portrait of Ram with foot wear is insulting enough to warrant legal action and is comparable to the act of drawing a respectful portraiture of Prophet Mohammed.
Your point about the Khajuraho sculptures would undoubtedly be an important one in arguing against imposing limitations in art but that open expression of sexuality is unfortunately not the only tradition that exists – if it was, many of the obscenity laws would have perhaps been repealed by now or at the very least, the Khajuraho standard would have been nationally accepted and applied by everyone to judge the limits of artistic freedom; that of course, would have been the end of the matter and no controversy would have arisen at all. The reason for the current troubles is precisely because those values are being contested by more prudish alternatives that claim legitimacy from a variety of sources – Hindu shastras, Islamic traditions, etc. – all of which seem to voice the similar view that expressive tendencies must not question or contradict certain red lines of religious or other popular sentiment.
Vigilantism can be best resisted when two conditions are satisfied: the arguments of the brigades can be categorically repudiated in law and the law, as it stands, enjoys local legitimacy because it was drawn up by the same audience (society) that both sides appeal to for support. An effort to draw up a list that I argued for before would render this contention a legislative exercise where all sides can present views (the Khajuraho tradition would undoubtedly make a compelling argument but it would still have to be popularly accepted), the matter can be deliberated and answers found that have a better chance of enduring in the long term rather than tolerate street battles every time a provocation is perceived that generate a lot of noise but end up without a clear outcome. While I strongly sympathize with the desire for artistic freedom even in the absence of popular support, the tragedy of the First Amendment passed in 1951 introducing the clause allowing for ‘reasonable restrictions’ to the freedom of speech and expression on various grounds (other than national security which existed before) ended up downgrading this fundamental liberty from a constitutional right into a popular guarantee at least where the threat of violence looms, when the state’s desire for conformity prevails over the minority’s right to peacefully dissent. Liberty, now, is therefore truly for the brave; those not willing to fight for it must be prepared to lose it.
As for Mr. Srinivasan’s suggestion for unfettered freedom of expression, I am not aware of any country in the world where absolute freedom of that kind exists (at the very minimum, some restrictions on hate speech usually exist). That would certainly require a high degree of discipline and a culture of tolerance nurtured over time – something that clearly does not exist in our country at present and for that reason, such a demand would be unlikely to muster much support in either the legislatures or the courts. Even in the United States which has a reasonably good record of tolerance and the language of the First Amendment is quite sweeping in its protection of the freedom of speech and expression, restrictions on several grounds is permitted (see Justice Scalia’s majority opinion in R.A.V. v. City of St.Paul, 505 U.S. 377 (1992) for a brief and elegant summary of First Amendment jurisprudence).
Thanks Dilip for referring me to Justice Scalia. I feel a bit relieved that atleast he is against cross burning.
Coming back to my suggestion, it was not intended to be a practical course to adopt in law, but an observation about the prevalent thinking behind the issue and the attendant inconistencies in those positions. I am aware that the absolute unfettered right does not exist anywhere in law. But I am glad that you seem to agree that is a desirable situation. Sadly not many opinions I read not seem to share that aim atleast in theory.