Tag Archives: free speech

The land of the free

From an Ars interview with a US Congresswoman-

You know, these guys in the content industry, they came to us when I was in the Congress when we did the Digital Millennium Copyright Act. They wanted to go farther; at one point, the original draft outlawed Web browsing, which I thought was interesting.

We did the bill, and they’re complaining. It’s what they wanted, but it’s not enough. Now they want to do something else, which is really pretty draconian, and I think out of step with the American tradition of due process. They’re not using the remedies available to them right now, and if this passes, in a couple years they’ll come back with something even more draconian. I don’t have a lot of patience for that, really.

I found this clip from a Marx Brothers film thanks to a quote on this website that covers censorship news from that fount of all things insane: the UK-

You can read the lyrics at the end of this page.


The Indian IT Act of 2000/2008 already prescribes punishment for causing “annoyance” via electronic means. According to new rules prescribed under the act, which is being seen as a “blogger control act,” now “intermediaries” are required to take “due diligence” and see to it that their users (bloggers/commenters etc) fall in line by warning them against publishing/storing/etc etc information which:

is harmful, threatening, abusive, harassing, blasphemous, objectionable, defamatory, vulgar, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;


causes annoyance or inconvenience or deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;


threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.

etc etc etc.

I would have been surprised had I been under the illusion that the constitution guarantees certain fundamental rights, or that we were a civilized country. Since none of the above is true and similar language can be found in nearly every act passed by the Indian parliament, the “rules,” the secretions of an authoritarian mind, are simply business as usual.


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.

Chained speech

Simon Jenkins’ bewildering op-ed in the Guardian

Freedom of speech, like freedom of traffic, can only be defined by the curbs and regulations that make it real. The right wing seeks to curb WikiLeaks, and the left seeks to curb “hate speech”. The right wants the freedom to finance unlimited political propaganda, and the left wants the freedom of unlimited access to state secrets.


Free speech is a Hobbesian jungle. It requires a marketplace where the trade in information, ideas and opinion has a framework of rules, including rules that maintain fair and open competition. Most will be voluntary, but others need enforcement.


It is the great paradox of democracy. Free speech cannot exist without chains.

Ah, paradox. Now the curbs and regulations make sense.

“Their threats chill free speech”

Salil Tripathi on the Shiv Sena’s book-banning campaign-

Mistry’s is not the only novel to show Mumbai’s parochial patriarchs. Earlier this year, Murzban Shroff, coincidentally another Parsi author, faced a lawsuit from an activist called Vijay Mudras, who was upset that a character in one of his stories referred to Marathi-speaking people as ghaatis. Shroff’s collection of stories has been widely acclaimed—it was called Breathless in Bombay, but it was disliked by the mindless and mirthless in Mumbai.

Shroff didn’t think poorly of Marathi-speakers—a character in his story did. If all characters in every work of fiction are to behave impeccably, what will become of our epics? Will the Mahabharata be withdrawn because Duryodhana asks Dushasana to drag Draupadi by her hair? Doesn’t that scene humiliate women and glorify violence against women?

The views of a character are not the same as those of the author. This was the point deliberately misrepresented during The Satanic Verses saga, where the Ayatollah declared a fatwa on Salman Rushdie who had written about the hallucinations of a character losing his mind, imagining that he was founding a great religion.

Hindu nationalists get riled when they are compared with Muslim leaders declaring fatwas. But the difference between those who want Such A Long Journey or Breathless in Bombay banned and the clerics who hate Rushdie—and the cartoonists of Jyllands-Posten—is marginal. Their threats chill free speech.

What if the views of a character were those of the author? Even that doesn’t give philistines the right to ban what they don’t like, or to attack the author.

The problem is, even if India fixed article 19(2) of the constitution and scrapped the laws related to libel, the chilling effect will not disappear. The mere threat of physical violence, time and place unspecified, is enough to silence a vast majority of people who would rather stop speaking than stop living. It takes just one “example,” like Theo van Gogh. To paraphrase a line from Body Snatchers that expresses the sentiment quite well, “Where you gonna go? Where you gonna run? Where you gonna hide? Nowhere….”