Freedom of Speech and Religious Sentiments
Drawing Lines in the Sand
Recent times have seen a virtual war—a war not quite unlike the ‘war on terror’ launched by President Bush. It is war with an obscure enemy, a war between free-speech liberalists and religious sentiment toting traditionalists. While the mandarins demand greater restrictions on the freedom of speech in the ethnically charged world of today, GeNext seems to care less about religious sentiments and give greater importance to the freedom to express. This perennial conflict between freedom to express and offending the sentimentalities of people has special significance in the socio-religious milieu of India. Can it not then be justifiably argued that in a country where something as trivial as the release of a fictional movie can stir up nationwide protests and violence, greater restrictions need to be placed on the freedom of speech?
Merely because the freedom to express has capacity of abuse, a blanket denial of the right altogether can never be a panacea, rather it will only further compound the problem. In the present scenario, the safeguards provided in the Constitution and other legislation are sufficient to tackle any abuse of the freedom and suggests that coterminous legal systems need to be strengthened so that the press does not roam free like an unruly horse, but is reined when necessary.
In West Midlands, UK, all pig-related items, including toys, porcelain figures, calendars and Piglet (of Winnie the Pooh fame) gift articles were ordered to be removed—allegedly as they offended the ‘religious sentiments’ of the Muslims. On the contrary, in India, while the cinders of the Gujrat riots are still afresh in the minds of the people, Vishwa Hindu Parishad (VHP) workers are now hammering in reminders of the Godhra carnage by sporting T-shirts, caps and scarves with images of leaping flames engulfing the Sabarmati express. So where do we draw the line between what is covered by the freedom of speech and what isn’t? Can we even attempt to draw such a line or is it an exercise in futility?
The cartoon controversy in Denmark, the defacement of MF Hussain’s paintings and the hugely televised Da Vinci Code debacle have served as a fertile breeding ground for neo- liberalists and conservatives alike.
India is one of the unique democracies of the world wherein free press does not find any express recognition in any legislation. The Constituent Assembly, at the time of drafting the magnificent edifice of the Indian Constitution thought that the freedom of press meant freedom of expression and no specific mention of the same was warranted.
However, this freedom is not absolute and is subject to certain caprices elucidated in Art. 19 (2) including inter alia caprices that might be placed in the interests of 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 real conflict between free press and the religious sentiments can be witnessed not by having reference to the freedoms granted by the Constitution, but by considering a rather innocuous provision of the Indian Penal code, 1860. S. 295A of the Code makes ‘deliberate and malicious acts intended to outrage religious feelings of any class insulting its religion or religious beliefs’ punishable with imprisonment which may extend upto three years or with fine or with both. The report of the Select Committee preceding the enactment of Section 295(A) is significant. It stated that the purpose of the Section was to punish persons who indulge in wanton vilification or attacks upon the religion of any particular group or class or upon the founders and prophets of a religion. It however emphasised that ‘an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a shock to the followers of the religion as would ensure notice being taken of any criticism so made.’ Therefore the Committee recommended that the words ‘with deliberate and malicious intention’ be inserted in the Section. Almost immediately after its enactment, the Supreme Court was called up to determine the constitutional validity of the Section in light of the fundamental right of free speech and expression. The court found it expedient to constitute a Constitution Bench which, while upholding the law, observed that a significantly high threshold would have to be crossed to punish a person under s.295A.
The trend of judicial decisions is that one may legitimately criticise the tenets of a particular religion as irrational or historically inaccurate but it is not permissible to revile the founder of a religion or the prophets it venerates as frauds and charlatans or to expose them to scorn. Courts would in such cases infer ‘deliberate and malicious intention’ to insult the religion.
The adjective ‘free’ can no longer qualify the press in the country or indeed the world of today. The press of today is curbed, confined and cabined. Unnatural restrictions unknown and entirely alien to the Constitution have been placed on the press, as a panacea to quell the growing fundamentalism of today.
In a time where racial and religious sentiments are on a razors edge and intolerance reigns, it is indeed difficult to expect any kind of rationality where religion is concerned.
The clear contradistinction between the past tolerance and the present fanaticism is evident by a contrast of some of the earlier decisions of the courts and recent occurrences across the country. Surprisingly, however, the apex court has adopted a liberal attitude towards the press, whereas the general populace seems to have arrogated to itself the role of ‘protecting’ ‘weak’ minds from the ‘harmful’ influences of the press.
In K. A. Abbas v. Union of India, for the first time the question of the validity of censorship as violative of fundamental right of speech and expression arose. The Supreme Court however observed that, pre-censorship of films under the Cinematograph Act was justified under Article 19(2) on the ground that films have to be treated separately from other forms of art and expression because a motion picture was able to ‘stir up emotion more deeply’ and thus, classification of films between two categories ‘A’ (for adults only) and ‘U’ (for all) was brought about. The rationale behind the Supreme Court decision was clearly that while films could have a deep impact on impressionable minds, adults being (or expected to be) rational, would watch the film, purely for entertainment purposes realising it was merely harmless fiction. Recognising the hot-blooded Indian psyche ever ready to protest any vilification of public morals, the Court imposed the wisdom of the Censor Board on the masses. It was rationally expected that the Board, consisting of stalwarts of the arts, would keep the interests of society in mind before certifying a film to be fit for display. Inspite of these safeguards, a film based on a hugely publicized (and readily available) novel, concerning a minority community, created such a furore, that even the Censor Board had to relent and impose additional restrictions ‘in the interests of the people’.
Rather that attempt to draw a conclusion, this essay suggests that one should never be drawn. The grey area that exists between the freedom to express subject to the religious sentiments of others must be left undecided. Malleable standards need to be applied to a subject as sensitive as religion and the application of a straight-jacket formula might prove to be counterproductive in the future.
This perennial conflict between freedom to express and offending the sentimentalities of people has special significance in the socio-religious milieu of India. Religion is a four letter word in India. Can it not then be justifiably argued that in a country where something as trivial as the release of a fictional movie can stir up nationwide protests and violence, greater restrictions need to be placed on the freedom of speech? The question then arises as to what exactly these resections would be and the extent to which they would be applicable. Further even though laws are to be applied equally to all, it is rarely seen that restrictions on press are placed on the machineries of the government in power. A prime example of this would the Saamna, the mouthpiece of the Shiv Sena, known for its rants against the Muslim community.
Sates must be given the opportunity of delineating the limits of free press within their respective territories. In case of a ‘universal’ attack on religious sentiments as was witnessed in the recent Danish cartoon controversy case, rather than prescribe a comprehensive ban on press in matters of religion, restrictions should be placed on the press in each individual country depending upon the effects of the slander. Existing safeguards must be bolstered rather than develop entirely new restrictions. It is true that the ethnically charged world of today demands a greater sensitivity, especially from an organ like the press which has the ability to mould minds easily, but at the same time it is essential to remember that the first duty of the press is to unbiased reporting, whether or not it affects the religious sentiments. If the reporting causes a law and order problem or is blatantly in bad taste, then and only then should the restrictions on the press come into play. Again, these restrictions must be reasonable and not based on the whims and fancies of the state. The Constitution coupled with the protection guaranteed by the penal laws of the country are an adequate safeguard against an unruly press. The imposition of these safeguards is where the lacuna lies and unless this cancer is cured, there can be no resolution of the issue.
‘Free speech does not mean tolerance of the expression of opinions with which one agrees but tolerance of the expression of opinions which one positively dislikes or even abhors.’
‘Without free speech no search for truth is possible.. no discovery of truth is useful.. Better a thousand fold abuse of free speech than denial of free speech. The abuse dies in a day, but the denial slays the life of the people, and entombs the hope of the race.’
‘It is a well settled principle that the offending provision is to be viewed as a whole and the intent of the author has to be gathered from a broader perspective and not merely from a few solitary lines or quotations.’
‘The freedom of press is regarded as a species of which the freedom of expression is a genus’;
‘Freedom of Press is not absolute, unlimited and unfettered at all times and in all circumstances as it would lead to disorder and anarchy’