Obscene

I was trying to locate an official list of books banned in India when I encountered this early ’90s article from the CSCS archive-

Irrational application of the law apart, the very purpose of imposing bans, that are almost never revoked, appears defeated in the face of the fact that there is no comprehensive list of banned books either with the Customs Department or with the Home Ministry. And even if one does exists, officers responsible for issuing notification banning books are unaware of it. This correspondent approached nearly a dozen customs officials in North Block, ITO, and Indira Gandhi International Airport for the list but drew a blank.

One customs official in North Block even said that he was himself unable to obtain such a list when he asked for it some time ago. “I doubt if one exists,” he said. Even Girja Kumar, author Censorship in India, writes: “A complete listing of books banned/censored under various legislative acts is hard to compile. The information is undoubtedly buried in the files of the Internal Security Division of the Ministry of Home Affairs.”

The author claims D.H. Lawrence’s infamous book is still banned in India. While I don’t know if that is still the case, and whether the various bans are merely on the import or sale of the literature in question or even on the possession, I did come across a 1964 Supreme Court case over the book where a book vendor’s conviction was upheld. Justice Hidayatullah writes-

We can only interpret the law as we find it and if any exception is to be made it is for Parliament to enact a law.

[...]

The important question is whether this test of obscenity squares with the freedom of speech and expression guaranteed under our Constitution, or it needs to be modified and, if so, in what respects. The first of these questions invites the Court to reach a decision on a constitutional issue of a most far-reaching character and we must beware that we may not lean too far away from the guaranteed freedom. The laying down of the true test is not rendered any easier because art has such varied facets and such individualistic appeals that in the same object the insensitive sees only obscenity because his attention is arrested, not by the general or artistic appeal or message which he cannot comprehend, but by what he can see, and the intellectual sees beauty and art but nothing gross. The Indian Penal Code does not define the word “obscene” and this delicate task of how to distinguish between that which is artistic and that which is obscene has to be performed by courts, and in the last resort by us. The test which we evolve must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not. None has so far attempted a definition of obscenity because the meaning can be laid bare without attempting a definition by describing what must be looked for. It may, however, be said at once that treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. It is not necessary that the angels and saints of Michelangelo should be made to wear breeches before they can be viewed. If the rigid test of treating with sex as the minimum ingredient were accepted hardly any writer of fiction today would escape the fate Lawrence had in his days. Half the book-shops would close and the other half would deal in nothing but moral and religious books which Lord Campbell boasted was the effect of his Act.

[...]

Today our national and regional languages are strengthening themselves by new literary standards after a deadening period under the impact of English. Emulation by our writers of an obscene book under the aegis of this Court’s determination is likely to pervert our entire literature because obscenity pays and true art finds little popular support. Only an obscurant will deny the need for such caution. This consideration marches with all law and precedent on this subject and so considered we can only say that where obscenity and art are mixed, art must so preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked. In other words, treating with sex in a manner offensive to public decency and morality (and these are the words, of our Fundamental Law), judged of by our national standards and considered likely to pander to lascivious, prurient or sexually precocious minds, must determine the result. We need not attempt to bowdlerize all literature and thus rob speech and expression of freedom. A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way.

He then summarizes the book, and delves into Lawrence’s motivation-

One cannot doubt the sincerity of Lawrence’s belief and his missionary zeal. Boccaccio seemed fresh and wholesome to him and Dante was obscene. He prepared a theme which would lend itself to treating with sex on the most erotic plane and one from which the genteel society would get the greatest shock and introduced a game-keeper in whose mouth he could put all the taboo words and then he wrote of sex, of the sex organs and sex actions with brutal candidness.

With the magic of words he made the characters live and what might even have passed for allegory and symbolism became extreme realism. He went too far. While trying to edit the book so that it could be published in England he could not excise the prurient parts. He admitted defeat and wrote to Seekers that he “got colour-blind and did not know any more what was supposed to be proper and what not.” Perhaps he got colour-blind when he wrote it. He wanted to shock genteel society, a society which had cast him out and banned him.

He wrote a book which in his own words was “a revolutions bit of a bomb”. No doubt he wrote a flowering book with pistil and stamens standing but it was to quote his own words again “a phallic 80 novel, a shocking novel”. He admitted it was too good for the public. He was a courageous writer but his zeal was misplaced because it was born of hate and his novel was “too phallic for the gross public.” This is where the law comes in. The law seeks to protect not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings. No doubt this is treating with sex by an artist and hence there is some poetry even in the ugliness of sex. But as Judge Hand said obscenity is a function of many variables. If by a series of descriptions of sexual encounters described in language which cannot be more candid, some social good might result to us there would be room for considering the book. But there is no other attraction in the book.

Which only goes to show that there is no point debating the minutiae of the law. Once you acknowledge someone’s authority to enact and enforce the law, be it a king, or a democratically elected parliament, you have to bear the consequences of their stupidity. Even the greatest jurists in the world would be helpless in the face of a flood of insanity.

Free?

Yesterday’s Times of India carried a news report on a Supreme Court judgment on freedom of speech. A bench that included the Chief Justice of India has reiterated the fact that the Indian constitution does not guarantee the fundamental right to free speech-

It will no longer be safe to start a blog and invite others to register their raunchy, caustic and even abusive comments on an issue while seeking protection behind the disclaimer — views expressed on the blog are that of the writers.

This chilling warning emerged as a Bench comprising Chief Justice K G Balakrishnan and Justice P Sathasivam refused to protect a 19-year-old Kerala boy, who had started a community on Orkut against Shiv Sena, from protection against summons received from a Maharashtra court on a criminal case filed against him.

[...]

A computer science student, Ajith pleaded that the comments made on the blog were mere exercise of their fundamental right to freedom of expression and speech and could not be treated as an offence by police.

Unimpressed, the Bench said, “We cannot quash criminal proceedings. You are a computer student and you know how many people access internet portals. Hence, if someone files a criminal action on the basis of the content, then you will have to face the case. You have to go before the court and explain your conduct.”

For completeness’ sake, here are articles 19(1) and 19(2) of the Constitution of India as of sometime in 2008-

19. (1) All citizens shall have the right—
   (a) to freedom of speech and expression;
   (b) to assemble peaceably and without arms;
   (c) to form associations or unions;
   (d) to move freely throughout the territory of India;
   (e) to reside and settle in any part of the territory of India; and
   (f) [deleted]
   (g) to practise any profession, or to carry on any occupation, trade or business.
  (2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the 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.

This was not originally the case. This article was amended because our late great socialist Prime Minister – Jawaharlal Nehru – found that fundamental rights were making it difficult for him to go about his plans. So, while proposing an amendment, this is what he wrote-

During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen’s right to freedom of speech and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom. The citizen’s right to practise any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to reasonable restrictions which the laws of the State may impose “in the interests of general public”. While the words cited are comprehensive enough to cover any scheme of nationalisation which the State may undertake, it is desirable to place the matter beyond doubt by a clarificatory addition to article 19(6). Another article in regard to which unanticipated difficulties have arisen is article 31. The validity of agrarian reform measures passed by the State Legislatures in the last three years has, in spite of the provisions of clauses (4) and (6) of article 31, formed the subject-matter of dilatory litigation, as a result of which the implementation of these important measures, affecting large numbers of people, has been held up.

The main objects of this Bill are, accordingly to amend article 19 for the purposes indicated above and to insert provisions fully securing the constitutional validity of zamindari abolition laws in general and certain specified State Acts in particular. the opportunity has been taken to propose a few minor amendments to other articles in order to remove difficulties that may arise.

If you want the right to free speech, you need to be a political party like the Shiv Sena, or the Samajwadi Party, or the Maharashtra Navnirman Sena, or the head of one of the many goon squads. Then you can say and write and do whatever you want and public sentiment will see to it that an exception is made for you under law. Everyone else, however, is bound to face criminal charges if they dare to speak or write something that “hurts” some one else’s sentiments.

Over the past couple of days, I am having a debate on “Consistency and liberty” and the importance of philosophy here. I will continue to do that till it reaches a logical conclusion or someone tires out, whichever happens first. But this “freedom of speech” issue signifies the importance of philosophy. Why did Nehru think, and why do so many “popular bloggers,” lawyers, constitutional experts etc think that defamation and libel is an exception to freedom of speech? What is the basis of such a law? I don’t know if either the dead man or some of the others will have any satisfactory answers. Rothbard had it though, and so does KM; I have linked to this post many times in the past and I will continue to do it every time I think it is necessary. That’s why philosophy is important people. Without philosophy you cannot defend a single issue, or right, because you won’t know how, or why.

—

The government has changed in the US, but its policies remain the same. Reason reports that Bush’s “War on Terror” has just been made into an indefinite one-

“I don’t think there’s any question but that we are at war” with terrorists, [Attorney General] Holder said at his confirmation hearing last month. We did not notice when the war began, he said, and we may never know when it ends. The battlefields are not only in Afghanistan, where U.S. forces continue to fight Al Qaeda’s Taliban allies, but in countries around the world, including the United States.

Holder was not just speaking figuratively. In response to a question from Sen. Lindsey Graham (R-S.C.), he said that if someone suspected of helping to finance Al Qaeda were captured in the Philippines, far from any scene of combat, he would still be considered “part of the battlefield.”

The implication—acknowledged by Holder and by Elena Kagan, Obama’s choice for solicitor general, at her confirmation hearing this month—is that such a person could be held as an “enemy combatant” until the “cessation of hostilities,” which in this case effectively means forever. So could, say, leaders of a U.S.-based Muslim charity suspected of funneling money to a terrorist organization or a graduate student at an American university accused of helping Al Qaeda raise funds and attract followers by maintaining a website where incendiary anti-American messages were posted.

Both kinds of suspects have been successfully tried in criminal courts, with one case resulting in convictions and the other ending in acquittal. But under Holder’s theory, which was also the Bush administration’s, the government need not have bothered; it could simply have transferred these defendants to military custody, where they could be held indefinitely without trial.

—

Peter Boettke at “The Austrian Economists” says that we are not heading towards socialism, but 20th century’s other “ism” – the F-word – fascism. He then tells the story of a German girl who was put to death by the na-zi regime-

We are in trouble but it is a crisis of ideas that is most troubling. We are marching toward corporatist system as fast as the votes will take us. Who will say NO to this?

I know this sounds dramatic, and I don’t know the full story behind the history, but in watching all of this unfold before my eyes these past several months I was reminded of the White Rose student led resistence movement in Nazi Germany. A group of students from the University of Munich, inspired by an activist theologian and a philosophy professor, took pen to paper and challenged Hitler’s regime, exposed its crimes, and challenged the German people to wake from their fear induced stupor. Sophie Scholl was one of the leaders of this group and she along with others were executed by beheading in 1943. But her words are an indictment of complacency in the face of encroachment on human freedom and human decency. Sophie Scholl wrote the following about teh damage to the German people caused by fascism: “The real damage is done by those millions who want to ’survive.’ The honest men who just want to be left in peace. Those who don’t want their little lives disturbed by anything bigger than themselves. Those with no sides and no causes. Those who won’t take measure of their own strength, for fear of antagonizing their own weakness. Those who don’t like to make waves or enemies. Those for whom freedom, honour, truth, and principles are only literature. Those who live small, mate small, die small. It’s the reductionist approach to life: if you keep it small, you’ll keep it under control. If you don’t make any noise, the bogeyman won’t find you. But it’s all an illusion, because they die too, those people who roll up their spirits into tiny little balls so as to be safe. Safe?! From what? Life is always on the edge of death; narrow streets lead to the same place as wide avenues, and a little candle burns itself out just like a flaming torch does. I choose my own way to burn.”

A wrote about a similar case, this time in the Soviet Union, a couple of months back – “Three minutes of freedom”.

I will end with some words from Karl Popper-

It is wrong to think that belief in freedom always leads to victory; we must always be prepared for it to lead to defeat. If we choose freedom, then we must be prepared to perish along with it. Poland fought for freedom as no other country did. The Czech nation was prepared to fight for its freedom in 1938; it was not lack of courage that sealed its fate. The Hungarian Revolution of 1956 — the work of young people with nothing to lose but their chains — triumphed and then ended in failure. … Democracy and freedom do not guarantee the millennium. No, we do not choose political freedom because it promises us this or that. We choose it because it makes possible the only dignified form of human coexistence, the only form in which we can be fully responsible for ourselves. Whether we realize its possibilities depends on all kinds of things — and above all on ourselves.

The basis of democracy

KG Balakrishnan, the Chief Justice of [the Supreme Court of] India says about the general unrest and terror strikes in the country-

People should feel secure. They have a fundamental right to live in secure atmosphere where they should feel that their life and property are safe. That is the basis of democracy.

Indians don’t have a fundamental right to life or property. Indian politicians and the Supreme Court have managed to make the concept of rights irrelevant-

No person shall be deprived of his life or personal liberty except according to procedure established by law. (Fundamental right under Article 21)

No person shall be deprived of his property save by authority of law. (Plain vanilla right to property under Article 300A)

Who has the unlimited power to amend the constitution in a manner of their choosing and passing laws that they fancy? The politicians. Who watches on as this is being done? The judiciary.

Democracy by definition is the rule of the mob. So mobs – not security; not rights; not justice – are the basis of democracy.

Presiding over the murder of freedom

Former Chief Justice of the Supreme Court of India, Y.V. Chandrachud passed away yesterday, and as is the case with any larger than life personality, eulogies flowed. While some newspapers did mention his indirect link to India’s darkest hour – the Emergency of 1975, others have cleanly swept it under the carpet. Perhaps they don’t want to relive those hours of their own history which saw them capitulate to Indira Gandhi. The Emergency gave her the power to rule by decree and she and her government used it to target her political opponents. Politicians in India, however, are hardly subject to shabby treatment even if they are enemies. As always, it was the common man who bore the brunt of the brutes in uniform – illegal detentions and all.

If there is one thing that can save people from a rabid government, it is a functioning judiciary and its unswerving belief in the most important guardian of individual freedom – the writ of habeas corpus. On 28th April, 1976, however, the Supreme Court of India abdicated its responsibility and threw the citizens of the country to the wolves, all in the name of upholding the constitution. It struck down the habeas corpus by declaring that no court could entertain any writ of habeas corpus as long as the Emergency was in effect. Y.V. Chandrachud was one of the five judges on the bench which passed this judgment. As is probably known, there was only one dissenter and that person was Justice H.R.Khanna who passed away a few months back.

Jos. Peter D ‘Souza had this to say in the PUCL Bulletin of June 2001-

28th April, 2001, we complete twenty-five years of this horrific day when four of the five senior most Judges of the Supreme Court of the world’s largest democracy could unabashedly declare that under those circumstances no one could seek the assistance of any court in India to try and save his liberty, life or limb threatened to be taken away by the State. A day, which produced a judgment so shameful that even Hitler would have blushed, had he the opportunity to peruse it!
- A.D.M. Jabalpur vs Shukla – When the Supreme Court struck down the Habeas Corpus

Chandrachud was not the Chief Justice at that time and he might have done a lot of good work before and after this judgment. Regardless of these facts, the judgment that killed freedom will always be attached to his name and will forever remain a black mark on the history of India’s Supreme Court.