India, I have long maintained, is a fifty-fifty democracy. In some respects—such as free and fair elections, free movement of people—we are as democratic as any other country in the world. In other respects we lag noticeably behind. One such area is the freedom of expression.
The first threat to freedom of expression is the retention on our statute books of archaic colonial laws. In his now notorious case against Wendy Doniger’s book The Hindus: An Alternative History, the RSS activist Dinanath Batra cited six specific sections of the Indian Penal Code that he claimed the book could be banned under. These were: Section 153 (‘Wantonly giving provocation with intent to cause riot’); Section 153A (‘Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony’; Section 295 (‘Injuring or defiling [a] place of worship with intent to insult the religion of any class’); Section 295A (‘Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs’); Section 298 (‘Uttering, words, etc., with deliberate intent to wound the religious feelings of any person’); and Section 505 (‘Statements conducing to public mischief’).
The Indian Penal Code was originally drafted by Thomas Babington Macaulay, a man the RSS professes to despise. The RSS also often inveighs against the contamination of Indian culture by alien British rule. Yet when it suits their purpose, they are perfectly willing to use colonial laws drafted by Macaulay. That they are allowed to do so is a result of the postcolonial state having done nothing to repeal laws clearly unsuited to a democratic age.
Apart from the sections cited above, there are other provisions in the Indian Penal Code and the Criminal Procedure Code allowing books or films to be banned. The state also retains the power to ban or confiscate publications.
The state’s powers to suppress independent thought also takes
advantage of the first Amendment to the Indian Constitution, which restricted the sweeping freedom of speech originally granted by the Constitution. This Amendment, introduced in May 1951 when Jawaharlal Nehru was Prime Minister and B. R. Ambedkar Law Minister, allowed Governments to ban periodicals or books which threatened ‘the security of the State, friendly relations with foreign States, [or] public order’—provisions which give the authorities wide latitude to prohibit the circulation of books, newspapers or films they do not like.
I was recently reading a book on the publication in the United Kingdom of D. H. Lawrence’s novel Lady Chatterley’s Lover. The novel was banned under a section of the ‘Obscene Publications Act’ which permitted the state to stop circulation if the work in question was ‘such as to end to deprave and corrupt persons’ likely to read it. The defence was able to get the ban lifted, in part because they effectively used another section of the same Act, which stated that even if some parts of a book were considered ‘obscene’, it could still be circulated if its publication was ‘justified as being for the public good on the ground that it is in the interests of science, literature, art, or learning, or of other objects of general interest’.
Alas, no such provision exists in Indian law. Otherwise it could have been used in defence of Doniger’s book, which is manifestly a work of learning and of literature.
The second threat to freedom of expression are imperfections in our judicial system. Lower courts are too quick, and subordinate judges too eager, to entertain suits asking for films or books or paintings to be banned on the basis of colonial-era laws. Malign or mischievous litigants know which courts and which judges are likely to be pliant. A plea against the Caravan magazine, which is published in Delhi, was entertained by a judge in distant Silchar. Mr Batra himself, in his many and various attempts to suppress works of scholarship, has been known to favour the court in a town named Dera Bassi.
It is true that High Courts and the Supreme Court are in general more
proactive in defending freedom of expression. But once a book or painting has been banned in a lower court, it may take years for this to be overturned in a higher court. Few publishers, and fewer individuals, have the money, patience, or courage for such extended legal battles. When the RSS and VHP decided to target the great painter Maqbool Fida Hussain, they had suits filed in different courts across India. Eventually, Hussain’s lawyer was able to get the Supreme Court to consolidate all the cases, but by this time, the painter, already in his nineties, chose in sorrow and exasperation to go into exile.
The third threat to freedom of expression is constituted by the behaviour of the police force. Even when the courts are on the side of writers and artists, the police take the side of goondas and bigots. After the ban on James Laine’s scholarly book on Shivaji was overturned by the High Court, the publishers were too fearful to distribute it, knowing that if Shiv Sainiks or NCP goons came to attack the publisher’s Mumbai office the police would stand and look (if not cheer). When the visionary Hussain-Doshi goofa in Ahmedabad was vandalized by Bajrang Dal activists, the Gujarat police did nothing to stop them.
The police inhibit freedom of expression in other ways. In my home state of Uttarakhand, a brave young journalist named Umesh Dobhal was murdered in 1988 by the liquour mafia. There had been previous threats to his life; but the police remained indifferent, and after he was killed made no attempt to arrest and try his murderers. More recently, another Uttarakhandi journalist, Hem Pande, was killed in a fake encounter. One could cite such cases from every State of the Union, where the police has striven to impede or throttle the freedom to work and write of independent-minded journalists.
The fourth threat to freedom of expression are pusillanimous politicians. No Indian Chief Minister or Prime Minister has ever come out strongly in favour of freedom of expression. Many Chief Ministers and a few Prime Ministers have actively taken the side of fanatics who wish to have books or works of art banned. The Congressman Rajiv Gandhi was instrumental in banning Salman Rushdie’s The Satanic Verses. The Left Front in West Bengal banned the works of Taslima Nasreen and then refused to let her even live in the state. As Chief Minister of Gujarat, Narendra Modi had formal or informal bans placed on books, films, and painting exhibitions.
The recent silencing of the Tamil writer Perumal Murugan is illustrative here. No major political party in Tamil Nadu was willing to stand by Murugan’s right to free expression. The local administration played an even more pernicious role—rather than protect Murugan, it coerced him into issuing an ‘unconditional apology’ to the mob that sought to hound him.
A fifth threat is the dependence of the media on government advertisements. This is especially true of the regional and sub-regional press. Newspapers and magazines in state and district capitals often depend heavily on the largesse of State Governments. As a consequence, they cannot be frank or fearless in exposing the misdeeds of the ruling party or its Ministers.
A sixth threat to the freedom of expression is the dependence of the media on commercial advertisements. This is especially pertinent in the case of English-language newspapers and television channels, which cater to the affluent middle-class, those who buy automobiles, SmartPhones, flat screen televisions and washing machines, and consume a massive amount of oil and gas. Companies which make these products and advertise them in the media are often given a wide berth by reporters, editors, and, especially, proprietors.
This form of self-censorship operates extensively in an area I know reasonably well—the environment. Detailed and first-hand reports by intrepid journalists of environmental degradation caused by mining, chemical and oil companies have been ‘pulled’ for fear that they will offend advertisers. More often, editors simply do not commission such reports at all.
The seventh threat is constituted by careerist or ideologically driven writers. George Orwell once said that a writer must never be a loyal member of a political party. In India, too many writers and journalists identify with particular parties and even with particular individuals, pushing their patrons’ agendas at considerable violence to the truth. Once again, this betrayal of intellectual freedom occurs across the political spectrum. There are writers who are propagandists for the BJP, writers who are spokesmen for the Congress, writers who are apologists for the CPI(M), writers who are useful idiots of the Naxalites.
These seven threats to free expression eat away at the moral and institutional foundations of Indian democracy. To be sure, our writers, artists and film-makers enjoy greater freedom than their counterparts in semi-totalitarian countries such as China or Russia. Yet they are distinctly unfree when compared to their counterparts in thoroughbred democracies like Sweden or Canada.
SEVEN THREATS TO FREEDOM OF EXPRESSION
by Ramachandra Guha
(published in The Telegraph, 24th January 2014)