What ambivalence? What freedom?

I don’t know why the Times of India thinks that the Indian government has an “ambivalent stand on freedom of speech and expression”

Those who violently target artists or writers for their works have no place in a democracy. They must be arrested and punished. But what is more disturbing is the government’s ambivalent stand on freedom of speech and expression. If the government cannot ensure that Husain or Nasreen have the freedom to express themselves or even live in India, then it ends up undermining some of the basic tenets of our Constitution.

The government is in fact following the Indian constitution to the letter. Article 19 of the constitution does not guarantee freedom of speech and expression because it allows the State to place “reasonable restrictions on the exercise of the right” in so many different ways that in practice the “right to free speech and expression” means people only have the permission to say and express those ideas that either have the support of the majority or that of the government. Just because the government does not act to curb the “right” does not mean that it does not have the power to do so.

The mob that ransacked the current exhibition of Husain’s prints are probably guilty of rioting (IPC S146) and can be punished with a prison “term which may extend to two years, or with fine, or with both” (IPC S147). But Husain (or any other Indian citizen who takes his freedom of speech and expression for granted) can be charged under IPC S295A for insulting or attempting “to insult the religion or the religious beliefs” of a particular religious class or under IPC S292 that deals with the sale and public exhibition of material that is considered obscene. This section curiously has an exemption for –

Any representation sculptured, engraved, painted or otherwise represented on or in-
(i) Any ancient monument within the meaning or the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or
(ii) Any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.

Since the mobs represent the “silent majority” in the case of the Hindu Right, and the “vocal minority” in the case of the “Muslim radicals”, they will probably never be arrested – the cops will look the other way. But writers and artists and average citizens will find that not only does the law fail to protect them and their property from violent lunatics, but they themselves will be targeted under different sections of the Indian Penal Code.

In present day India, the best way to preserve your “right to free speech and expression” is to never use it. You can never tell when someone takes offense to something you say or do, and lets the law loose on you.

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Comments

  • you12  On August 27, 2008 at 2:10 pm

    You know the original constitution had no such restrictions but It was changed by a ruling government after independence. This law seriously undermines our freedom struggle and quest for freedom because Freedom is a binary equation ,either you have it or you don’t there is no in between.

    Even the British didn’t mind that we speak but they didn’t allow us to speak against themselves and certain things. Now tell me whats the difference?

    PS; There is a great film on this subject, The People VS. Larry Flynt(1996) I suggest you get your hands on it as soon as possible.

  • aristotlethegeek  On August 27, 2008 at 3:18 pm

    The restrictions have been there from the beginning. The original article 19(2) read-

    Nothing in sub-clause (a) of clause (1) shall effect the operation of any existing law insofar as it relates to, or prevents the state from making any law relating to, libel, slander, defamation, contempt of court or any matter which offends the decency or morality or which undermines the security of, or tends to overthrow, the state.

    But they were strengthened through a 1951 amendment. Someshwar Bhowmik says

    Perceiving this to be a threat against future machinations, the state promptly circumvented the original Art 19(2) by enacting the Constitution (First Amendment) Act 1951. It authorised the passage of ‘censorship’ statutes which conferred powers on the executives to impose ‘restrictions’ on the press (and other media of expression) “in the interests of security of state, friendly relations with foreign states, public order, decency, morality or in relation to contempt of court, defamation or incitement to an offence”. In 1963, the 14th Constitutional Amendment added a further ground for imposing ‘reasonable restrictions’ on the freedom of speech and expression in the form of sovereignty and integrity of India. Thus the grounds of exception were widened both in the wording and in the scope of the enumerated fields of exception. And to counterbalance this extension of the restrictive powers, the amendments added that the restrictions should be ‘reasonable’ both ‘substantively and procedurally’.

    So, essentially, freedom is what the government of the day says it is.

    Speaking of films, Larry Flynt aside, there is another American film which deals with the director of either a museum or a photo exhibition hall who is charged with displaying obscene portraits or photographs, and a court case follows. Cannot recollect the name.

  • you12  On March 30, 2010 at 2:48 pm

    Ah ofcourse. The good old Mr James Woods. So ironic to see him standing up for freedom.

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