Throughout history, free speech has been threatened not only by state power but also by the mob which stifles dissent. But India has witnessed in recent years a new menace - the mob in partnership with the state. The courts have not always protected dissent when it battles against popular frenzy.
Fire"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart, you naturally express your wishes in law and sweep away all oppositions. But when men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas, that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."
- Justice Oliver Wendell Homes' dissent, with Justice Louis D. Brandeis, in Abram vs. United States, 250, U.S. 616 (1919).
IN 1927, Brandeis wrote this dissent in which Holmes concurred: "Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth, that without free speech and assembly discussion would be futile, that with them, discussion affords ordinary adequate protection against the dissemination of noxious doctrine, that the greatest menace to freedom is an inert people; that public discussion is a political duty... . Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law - the argument of force in its worst form. Recognising the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed." Whitney vs. California 274 U.S. 357 at 376-7 2 at 673.
Justice Felix Frankfurter predicted that Holmes' dissent "will live so long as English prose retains its power to move". Max Lerner ranked it with Milton and John Stuart Mill. In 1929, Holmes excelled himself in this immortal dissent: "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought - not free thought for those who agree with us but freedom for the thought that we hate." U.S. vs Schwimmer 279 U.S. 664 at 653.
These men had drunk deep at Mill's essay On Liberty and remembered his admonition: "If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind."
Throughout history, free speech has been threatened not only by state power, but also by the mob which stifles dissent. But India has witnessed in recent years a new menace - the mob in partnership with the state. To add to the distress, the courts have not always protected dissent when it battles against popular frenzy.
The mob-state entente is a subversion of India's Constitution. Its framers learnt a lot from British and American constitutional history. This was particularly true of Dr. B.R. Ambedkar. They knew of times when English judges were the King's men and the jury was the only protector of the citizen. The Bar has known no greater advocate in the cause of free speech than Thomas Erskine. Our founding fathers knew how the executives' excesses were curbed by courts and public opinion and how, in former years, the British Parliament abused its privileges to silence criticism. But they could not have dreamt that this country would one day see a repressive government in cahoots with an intolerant mob; when men in power would condone, if not instigate, violent attacks on those who disagreed and judicial help, at most times, would either be late or inadequate or simply refused.
Dilip Kumar, the veteran film actor, remarked in a press interview published on December 9, 1998, apropos of the Shiv Sainik's attack on December 4 on a cinema house screening Fire: "How can you appeal to the government when Chief Minister Manohar Joshi [a Sainik] is himself encouraging threats of vio<147,1,7>lence... by congratulating the miscreants?" On December 12, members of the Shiv Sena, in their underwear, surrounded his house and hurled abuses at him. How many public figures denounced the attacks or the abuse?
The creeping menace of violent intolerance has developed a modus operandi. If a historical figure is criticised, let loose the dogs of barbarism on the critic, no matter how erudite, reasoned and distinguished. The state does not protect the scholar. Instead, it robs him of the rewards of scholarly labour by banning the book; citing a "threat" to law and order. The arrogant insolence and the shameless, brazen abuse of power go unchecked in some cases. Because, in those cases, even judges, otherwise willing to curb executive wrong, are reluctant to act against "popular sentiment". One is reminded of Justice Benjamin Cardozo's famous reminder in his classic The Nature of the Judicial Process: "The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by."
Neither Macaulay's Indian Penal Code (IPC), enacted finally in 1862, nor the Criminal Procedure Code (CrPC) of 1898, re-enacted in 1973 with some illiberal additions, sanctions the abuse. But there lurk in the edifice of our criminal jurisprudence some crevices, some nooks and corners on which excrescence has grown over time. They need to be removed for they pose a danger to free speech. English law has moved far ahead; especially on libel, contempt of court and parliamentary privilege. Indian law has stagnated.
Surely, in a country of continental size, it is preposterous that any publicity seeker, say, in Guwahati, should be able to drag the editor, printer and publisher of a journal published in Mumbai or Chennai before a magistrate by filing a complaint charging him with "obscenity"; quite regardless of whether the journal has a wide readership in his city or the offence is grave enough. Reform is called for, sorely.
Obscenity apart, religion and history provide the busy body with a fertile opportunity. He complains of "hurt feelings" as a devotee of a national or regional hero if not, indeed, a direct lineal descendent of the great man who died over a century or two ago. As was pointed out earlier by this writer, India's criminal law of libel is constitutionally void entirely ("A void libel law", Frontline; April 5, 1996).
The Select Committee which vetted the Penal Code in the clime of the 19th century emphasised that it did not prevent rational discourse. Two important provisions were inserted in the Penal Code. One was Section 153A, the other was Section 295A. The former underwent many amendments. In the wake of the Jana Sangh's programme of Indianisation, precursor to the Bharatiya Janata Party's Hindutva plank, the National Integration Council recommended changes. As it now stands, it penalises promotion of disharmony "between different groups or communities on grounds of religion, race, place of birth, residence, language, caste or communities." Section 153B followed, in train, to penalise imputation of disloyalty to India on any of these grounds.
The Rashtriya Swayamsewak Sangh (RSS), the Vishwa Hindu Parishad (VHP) and the Shiv Sena have with ease made a mockery of these provisions and exposed the hypocrisy of those who enacted them. On November 26, 2005, Bal Thackeray said: "We will pick a prominent Kannadiga settled here [in Mumbai] and thrash him if there is news of even a single attack on our people there [in Belgaum]" (Hindustan Times, November 27). (Emphasis added, throughout.)
Section 295A was inserted in the Penal Code in 1927. It penalises "insults" to "religion or the religious beliefs" of any group if made "with deliberate and malicious intention of outraging" their "religious feelings".
The Select Committee in its report stated: "To make it clear that an attack on a founder is not omitted from the scope of the section, we have specifically made punishable an insult to the `religious beliefs' of the followers of any religion." Its companion is Section 298A which punished words uttered "with the deliberate intention" of wounding the religious feelings of any person. Two features deserve note. There must be a deliberate intention to hurt and what is protected is religious feeling, not devotion to historical figures. Its draftsmen said: "We wish to allow all fair latitude to religious discussion and at the same time to prevent... . under the pretext of such discussion intentional insults."
Mohammed Ali Jinnah struck a fair balance in his speech in the Central Legislative Assembly on September 5, 1927: "There can be no question that we in this House wish to make it clear that in future no wanton vilification or attack on any religion shall be permitted - then let us proceed with this Bill." He said that "scurrilous writers" should be punished. But he did not stop at that. He added also: "I thoroughly endorse the principle, that while this measure should aim at those undesirable persons who indulge in wanton vilification or attack upon the religion of any particular class or upon the founders and prophets of a religion, we must also secure this very important and fundamental principle that those who are engaged in historical works, those who are engaged in bonafide and honest criticisms of a religion shall be protected."
This brings us to two dark crevices - group libel and criticism of the dead. Section 499 of the Penal Code defines defamation. Explanations 1 and 2 are relevant. Explanation 1: "It may amount to defamation to impute anything to a deceased person, if the imputation would harm the reputation of that person if living, and is intended to be hurtful to the feelings of his family or other near relatives." Explanation 2: "It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such."
How can Explanation 1 apply to one who died decades ago? For, it cannot possibly "be hurtful to the feelings of his family or other near relatives". Two other factors are relevant - the gravity of the imputation and that it must be "intended to be hurtful to the feelings of his family". The target is not the deceased but his survivors. Criticism of historical figures cannot possibly fall within Explanation 1.
The very sweep of Explanation 2 ("collection of persons") suggests a need for confining it to reasonable dimensions. The Supreme Court's rulings are unsatisfactory. In Sahib Singh Mehra vs. State of U.P (1966) 1 SCJ 294, the court had to consider this sweeping charge in a periodical published in Aligarh: "illicit bribe money... into the pockets of public prosecutors... " It ruled: "The language of Explanation 2 is general and any collection of persons would be covered by it. Of course, that collection of persons must be identifiable in the sense that one could, with certainty say that this group of particular people has been defamed, as distinguished from the rest of the community. The prosecuting staff of Aligarh or, as a matter of fact, the prosecuting staff in the State of Uttar Pradesh, is certainly such an identifiable group of collection of persons.
"There is nothing indefinite about it. This group consists of all members of the prosecuting staff in the service of the Government of Uttar Pradesh. Within this general group of public prosecution of U.P. there is again an identifiable group of prosecuting staff, consisting of Public Prosecutors and Assistant Public Prosecutors, at Aligarh. This group of persons would be covered by Explanation 2 and could therefore be the subject of defamation. We have not been referred to any case relating to Section 499, Indian Penal Code, in support of the contention for the appellant that the Public Prosecutor and Assistant Public Prosecutors at Aligarh could not form such a body of persons as would be covered by Explanation 2 to Section 499, Indian Penal Code." That was unfortunate. English cases were not considered at all.
G. Narasimhan & Ors. vs. T.V. Chokkappa (1972) 2 SCJ 596 arose out of a conference organised by the Dravida Kazhagam (D.K.) over which E.V. Ramaswamy Naicker presided. The Hindu and other papers reported that it had passed a resolution to ensure that "coveting another man's wife is not made an offence" under the IPC whereas the resolution had said that "it should not be made an offence for a person's wife to desire another man". Its object, avowedly, was "to achieve total emancipation of women".
The court ruled: "A collection of persons must be an identifiable body so that it is possible to say with definiteness that a group of particular persons, as distinguished from the rest of the community, was defamed. Therefore, in a case where Explanation 2 is resorted to, the identity of the company or the association or the collection of persons must be established so as to be relatable to the defamatory words or imputations. Where a writing inveighs against mankind in general, or against a particular order of man, e.g. men of gown, it is no libel. It must descend to particulars and individuals to make it a libel. In England also, criminal proceedings would lie in the case of libel against a class provided such a class is not indefinite, e.g. men of science, but a definite one, such as, the clergy of the diocese of Durham, the justices of the peace for the county of Middlesex. If a well-defined class is defamed, every particular member of that class can file a complaint even if the defamatory imputation in question does not mention him by name."
How did the prosecutors of Uttar Pradesh qualify then? The court drew a distinction between the D.K. as a party and the conference, leaving open the question whether a political party would fall within Explanation 2. The prosecution failed, however, in the case against The Hindu.
On both defamation of the dead and group libel, English law is more precise and should help us to redefine the law. Neither furnishes ground for a civil suit. Criminal prosecutions lie; but only on narrow grounds. The hoary Halsbury's Laws of England requires "intention, or possibly... a tendency to injure the reputation of his surviving relatives" and that to this degree - "so that they may be excited to revenge and to a breach of peace" (Volume 28, fourth edition, paragraph 6). The Faulks Committee on Defamation (1978) suggested a time limit of five years after the death and confined the remedy to a declaration that it was untrue. There must be some time limit on prosecutions too, surely.
Gatley on Libel and Slander, a legal classic, says: "It is a criminal offence to write and publish defamatory words of any deceased person if it be done with intent to injure and bring contempt on his family and so provoke them to a breach of the peace. A mere vilifying of the deceased is not enough. There must be a vilifying with a view to injure his posterity."
In R. vs. Topham, the defendant was indicted for publishing of the late Earl Cowper a libel which imputed to him unmanly vices and debaucheries. He was tried and convicted. In his judgment Lord Kenyon C.J. said: "To say, in general, that the conduct of a dead person can at no time be canvassed, to hold that, even after ages are passed, the conduct of bad men cannot be contrasted with good, would be to exclude the most useful part of history. And therefore it must be allowed that such publication may be made fairly and honestly. But let this be done whenever it may, whether soon or late after the death of the party, if it be done with a malevolent purpose, to vilify the memory of the deceased, and with a view to injure his posterity, then... it is done with a design to break the peace, and then it becomes illegal."
Courts owe a clear duty when faced with works of scholarship, to uphold the right of free speech and summarily dismiss attempts to curb it at the very outset instead of issuing process to the writer.
A standard Indian work Law of Crimes by Ratanlal and Vakil says: "The essence of the offence of defamation consists in its tendency to cause that description of pain which is felt by a person who knows himself to be the object of the unfavourable sentiments of his fellow creatures and those inconveniences to which a person who is the object of such unfavourable sentiments is exposed." Where the complainant did not claim himself to be a descendant of the deceased person who had been allegedly defamed, no action would lie since he was not an aggrieved person. "The mere fact that he was a devotee and an admirer of the deceased person would not be sufficient to maintain an action against the accused."
In short, the law on group libel and on libel on the dead furnishes no ground for legal action of the kind we have seen lately. Pleas of "hurt feelings", wrath or shame and the like are irrelevant. That is why the entente is forged. Section 95 of the Criminal Procedure Code, 1973, empowers State governments to ban journals or books if inter alia they violate Sections 153-A, 153-B, 295-A of the Penal Code. Once an agitation is whipped up and the agitators take recourse to violence, State governments have, in cases more than one, stepped in to invoke Section 95 of the CrPC and ban the book. "State governments" is a euphemism for politicians in power. The ones in the Opposition do not hesitate to jump on the bandwagon.
However, Section 96 of the CrPC enables "any person having any interest" in the publication to challenge the ban in the High Court. The petition must be heard by a bench of three Judges. Gopal Godse vs. Union of India (1970) 72 Bombay Law Reporter 871 is an instructive case. Aspects of Justice Y.V. Chandrachud's judgment are disturbing; but the fundamental principle of law which he propounded is sound - the writing must directly incite ill-feeling between two groups. A book or an article which a group claims insults its "hero" or its "culture" cannot be banned. The ban on Gopal Godse's book Gandhi Assassination and I was set aside. Gandhi was killed because the Godses accused him of "appeasement" of Muslims. The court ruled, nonetheless: "Its accent is not on the social relationship or the political association between Hindus and Muslims in India, nor does the book at all deal with any contemporary problem having communal ramifications. The setting of the book is the events that led to the division of the country, the thesis of the writer is that Gandhiji wrongly pursued the policy of appeasement and his conclusion is that this policy led to Gandhiji's murder. The book is thus an attempt to explain what is indisputably a historical fact by marshalling support from what are said to be clear facts of history."
Justice Chandrachud, who delivered the judgment, found: "The best part of the book deals with these facts and events, the theme being that Gandhiji was assassinated for political, not personal, motives by those who loved their motherland as much as any one else did. The theme, in other words, is that Gandhiji's life is the price which was paid for the decision that the country be partitioned and the subsequent decision to pay the cash-balances to Pakistan in the face of its aggression on Kashmir."
He added: "The book read as a whole cannot be held to contain matter which promotes feelings of enmity and hatred between Hindus and Muslims in India. Frankly, the total effect of the book would not be to inflame communal passions. It contains no appeal to those passions - no direct appeal certainly and the supposed veiled meaning is much too veiled for the common reader. What will linger in his mind after he keeps down the book is that the integrity of the country should not have been broken and that Gandhiji's policy of appeasement led to partition and the untold miseries which it brought in its wake. What will move the reader is the account of those miseries, and more so the account of the sufferings of the aged parents, the wife and the helpless children of the author."
The Judge's assessment of the book is wrong. But his ruling on the law is sound and this ruling knocks the bans which we have suffered lately for a six.
S. Rangarajan vs. P. Jagjivan Ram & Ors. (1989) 2 SCC 574 concerned the film Ore Oru Gramathile, which attacked the policy of reservations on the basis of caste. The Supreme Court struck down the censors' orders. Its observations will continue to ring in our ears for a long time. "In the affidavit filed on behalf of the State government, it is alleged that some organisations like the Tamil Nadu Scheduled Castes Scheduled Tribes People's Protection Committee, Dr. Ambedkar People's Movement, the Republican Party of India have been agitating that the film should be banned as it hurt the sentiments of people belonging to Scheduled Castes/Scheduled Tribes. It is stated that general secretary of the Republican Party of India has warned that his party would not hesitate to damage the cinema theatres which screen the film. Some demonstration made by people in front of The Hindu office on March 16, 1988, and their arrest and release on bail are also referred to. It is further alleged that there were some group meetings by Republican Party members and Dr. Ambedkar People's Movement with their demand for banning the film. With these averments it was contended for the State that the exhibition of the film will create very serious law and order problem in the State.
"We are amused yet troubled by the stand taken by the State government with regard to the film which has received the national award. We want to put the anguished question, what good is the protection of freedom of expression if the state does not take care to protect it? If the film is unobjectionable and cannot constitutionally be restricted under Article 19(2), freedom of expression cannot be suppressed on account of threat of demonstration and processions or threats of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the state to protect the freedom of expression since it is a liberty guaranteed against the state. The state cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression."
This was said on March 30, 1989. Two years later, the Supreme Court considered a petition against the serialisation of Sanjay Khan's film The Sword of Tipu Sultan on Doordarshan. It was based admittedly on Bhagwan Gidwani's novel, a work of historical fiction. The lapse on the part of the Supreme Court is saddening. Doordarshan's formulation was made worse by the court sanctioning the words: (it) "has nothing to do with either the life or rule of Tipu Sultan". This is manifestly incorrect and makes a mockery of the very concept of historical fiction; it is fiction inspired by history. Disposing of a special leave petition seeking a ban on the airing of the serial, the Supreme Court directed in February 1991 that the following announcement be made along with the telecast of each episode: "No claim is made for the accuracy or authenticity of any episode being depicted in the serial. This serial is a fiction and has nothing to do either with the life or rule of Tipu Sultan. The serial is a dramatised presentation of Bhagwan Gidwani's novel."
By 1991, the BJP had fouled the atmosphere in the country. The Supreme Court's order was as unfortunate as it was devoid of jurisdiction. It gave a handle to the bigots. Besides, courts have no right or power to judge a film except on the anvil of the law. The correctness of depiction of history or the accuracy of a historical statement is entirely for the viewers to judge; not for judges to pronounce upon.
It only remains to add that both Khushboo and Suhasini Maniratnam were entitled to say what they said. The attacks on them, physical and verbal, were a blot on the great and ancient Tamil culture.
