Tag Archives: freedom of speech

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.

A1

India never thought of incorporating something resembling the US First Amendment into its constitution, and the meager protection that article 19(1) offered was not acceptable to Nehru. I am a realist and don’t think it would have survived in any case; there is no country in the world where the absolute right to free speech is protected.

But the idea, the principle behind it, is interesting nonetheless. Stanley Fish writes about the recent US Supreme Court decision protecting a corporation’s right to free speech-

The idea that you may have to regulate speech in order to preserve its First Amendment value is called consequentialism. For a consequentialist like Stevens, freedom of speech is not a stand-alone value to be cherished for its own sake, but a policy that is adhered to because of the benign consequences it is thought to produce, consequences that are catalogued in the usual answers to the question, what is the First Amendment for?

Answers like the First Amendment facilitates the search for truth, or the First Amendment is essential to the free flow of ideas in a democratic polity, or the First Amendment encourages dissent, or the First Amendment provides the materials necessary for informed choice and individual self-realization. If you think of the First Amendment as a mechanism for achieving goals like these, you have to contemplate the possibility that some forms of speech will be subversive of those goals because, for instance, they impede the search for truth or block the free flow of ideas or crowd out dissent. And if such forms of speech appear along with their attendant dangers, you will be obligated — not in violation of the First Amendment, but in fidelity to it — to move against them, as Stevens advises us to do in his opinion.

The opposite view of the First Amendment — the view that leads you to be wary of chilling any speech even if it harbors a potential for corruption — is the principled or libertarian or deontological view. Rather than asking what is the First Amendment for and worrying about the negative effects a form of speech may have on the achievement of its goals, the principled view asks what does the First Amendment say and answers, simply, it says no state abridgement of speech. Not no abridgment of speech unless we dislike it or fear it or think of it as having low or no value, but no abridgment of speech, period, especially if the speech in question is implicated in the political process.

The cleanest formulation of this position I know is given by the distinguished First Amendment scholar William Van Alstyne: “The First Amendment does not link the protection it provides with any particular objective and may, accordingly, be deemed to operate without regard to anyone’s view of how well the speech it protects may or may not serve such an objective.”

In other words, forget about what speech does or does not do in the world; just take care not to restrict it. This makes things relatively easy. All you have to do is determine that it’s speech and then protect it, as Kennedy does when he observes that “Section 441b’s prohibition on corporate independent expenditures is . . . a ban on speech.” That’s it. Nothing more need be said, although Kennedy says a lot more, largely in order to explain why nothing more need be said and why everything Stevens says — about corruption, distortion, electoral integrity and undue influence — is beside the doctrinal point.

An excellent piece which ought to make one think about jettisoning utilitarian/ consequentialist positions and adopting principled ones. That anyone alive today will never see an India where this idea finds broad acceptance is something one has to get used to.

“Non-censorship”

Dasgupta

The 21st century is said to be a great leveller, a time yesterday’s great powers repudiate the great games of yore. Yet, there was a disturbing imagery from another age behind the choreography of President Barack Obama’s visit to China last week. For many, the reference in the joint statement to supporting “the improvement and growth of relations between India and Pakistan” was a “casual remark”, about as significant as proforma commitments to foster cultural exchanges.

However, since joint statements are not usually a casual collation of stray thoughts – unless the joint India-Pakistan statement in Sharm-el-Sheikh becomes a template – and certainly not regarded as such by China, it may safely be assumed the reference was calculated.

India may not quite be yesterday’s Tanganyika but the assumptions behind including it in a US-China joint statement weren’t dissimilar to those imperial leaders who rolled out maps and coloured their spheres of influence in red. For the US it was one step backward: it repudiated the Bush doctrine of nurturing India to offset China’s dominance in Asia. For China it was a giant step forward: it secured US endorsement for taking an active interest in South Asia, including India. Together, Obama and President Hu Jintao agreed that India, for all its potential as a rising economic power, doesn’t yet qualify for a place on a high table; it remains bound in a hyphenated relationship with an imploding Pakistan.

and Akbar

On the first anniversary of 26/11, it is not Pakistan alone that is laughing at our weakness. Washington too has measured the tensile strength of a nation that finds unique ways to postpone its threats to the next calamity. Last year, we gloried in the belief that the US had promoted us to the ascending plateau of a regional power, en route to the status of world player. This week, President Barack Obama used a communiqué in Beijing, of all capitals, to tell us where we stand in his estimation, as one of the nations of South Asia whose border problems the worldwide partnership of equals, US and China, would help sort out.

The lean and lissome Obama has learnt to slap with a long hand.

Obama did not have a word to say, incidentally, about Dr A Q Khan’s latest revelations on Chinese help in fuel and technology for Pakistan’s nuclear weapons programme, a clear instance of illegal proliferation. Do not be surprised, however, if India gets a lecture or two on nuclear proliferation.

have written about how Obama and Jintao managed to screw India. Last November, the whole of India was gushing over Obama’s victory, fully aware of the record of previous presidents from the Democratic Party. Its time the country came to its senses.

Such diplomatic jousting is par for the course. What’s more revealing is Obamaspeak on subjects that really matter. Here’s the wonderful part

“I’m a big supporter of non-censorship,” Obama said. “I recognize that different countries have different traditions. I can tell you that in the United States, the fact that we have free Internet — or unrestricted Internet access — is a source of strength, and I think should be encouraged.”

about which a Chinese writer has said, “Learn English from Obama: Instead of saying ‘I want to eat,’ say ‘I am a big supporter of non-hunger.'”

Ed Cline goes a lot deeper into the mentality that gives rise to such phrasing-

Obama is a “big supporter of non-censorship”? What is “non-censorship”? Is it an awkward grasp of the concept of freedom of speech, or an inverted synonym? No. It cannot even have an antonym. If, to paraphrase the Oxford English Dictionary definition of censor, censorship is the “inspection of all books, journals, dramatic pieces, etc., before publication, to secure that they shall contain nothing immoral, heretical, or offensive to the government,” then non-censorship is an anti-concept. It is the “not censoring” of speech in any venue or form. That is, it is the staying of the government’s hand to censor it. It is the implicit acknowledgement that a government has the power and the will to censor, but chooses not to, for the moment. It is an Orwellian anti-concept possible only to a power-seeker at home with censoring and non-censoring.

Obama did not say that he is a “big supporter of freedom of speech” for two reasons: It would have been offensive to the Chinese totalitarian government — and because he does not believe in it.

[…]

He avoided the term “freedom of speech” again, and likened it to “tradition,” or custom. Message to China’s communist/fascist rulers: You have a long tradition of censorship and suppression of speech. On the other hand, we in the United States have a long “tradition” of freedom of speech. So, it’s just a difference of tradition. I won’t make a distinction between our traditions and yours, nor judge your regime.

[…]

The satire is that in Shanghai, Obama was subjected to the same censorship that he wishes to impose on America. It was the professional totalitarians showing the ropes to an amateur.

Beating around the bush, indulging in linguistic gymnastics never works, unless that, not working, is the goal of one’s enterprise. Such a speech is an insult to everyone, especially dissidents in China, who’s had to go through hell for believing in the idea.

Yang Zili, a Chinese dissident recently freed after eight years in prison for forming a political study group, had been expecting something stronger from Obama.

“Although Obama mentioned some words such as ‘rights’ and ‘freedom’ in the speech in Shanghai, we expect he can do more to promote the improvement of China’s human rights condition,” he said.

It would have been much better if he had simply said that he doesn’t give a damn about free speech. That would have been more truthful, and people could then start looking up to real heroes. Someone like Voltaire, and his “Crush the infamy!”

Roark season

While Oliva at the Mises blog discusses ip in the context of Roark’s demolition of Cortlandt, that is not what this post is about. (I will write about it. One of these days.) I finished watching Gulaal, and came across Kashyap’s two year old Roark post. I have linked to it previously, but here it is again. Then there is this eight year old post by Abbas Tyrewala defending “Paanch” from the monstrosity that is the Indian censor board by using imagery from “The Fountainhead.”

But the Axis had one more ally. More powerful than any other. An antediluvian monster that forgot to die, and was institutionalized by the moral brigade. The Censor Board.

An image from ‘The Fountainhead‘ has always haunted me. You are locked in a room with a malevolent monster, diseased and salivating and vicious. He is going to kill you. You have no weapons to fight it. Your only hope for survival is to appeal to its reason, to its intellect — to explain to it that it will achieve nothing by killing you. But the monster has no faculty for reason. It has no intellect. It will kill you.

[…]

Let us not even dwell on some of the inanities, the obscenities and the regressive outrages that the Board has passed to date. These are not the reasons Anurag’s film deserves a certificate.

It deserves a certificate because he made a film with passion and with love.

If today, no voices are raised in protest, in defiance of this murderous monolith, then we lose forever the moral right to complain about the lack of intelligence, the absence of imagination and the dearth of heroes in Hindi cinema.

And then someone comes and says this-

yaawn… i hate it when people start over-reacting to simple events…..so some fuddy-duddy didn’t get it and he decided to snip some scenes and it is suddenly freedom of expression which is at stake ? what rot !

Anyone who hasn’t given a serious thought to the idea of freedom and how it relates to censorship, or who hasn’t been at the receiving end of some “fuddy-duddy”‘s scissors will never understand what the hullabaloo is all about.

I continued reading the comments on Tyrewala’s post and came across this-

i’m wondering if picasso would ever have been able to have a showing if he’d had to go through a censor. do any of us care about what voltaire, de sade, anais nin, d.h. lawrence, james joyce, boris pasternak, alexander solzhenitzysn, henry miller, salman rushdie, and others went through because of bull headed censors deciding that their works were not worthy for public *consumption*. and do we appreciate just how much they have deepened our collective consciousness i’m guessing that if you haven’t read ‘the fountainhead’ at’s allusions in this article may not have the necessary impact. you need to know keating, for ats perspective on anurag to make sense as more than just mere jealousy. how is say this censor different from the banker who asks for the ornament that makes roark refuse the contract? is anurag any different from roark in refusing to compromise his artistic integrity by just making the changes necessary to get his film *passed*. granted nobody can do a roark and dynamite a housing project in today’s world and live to get away with it, but ain’t it nice to know that roark cared enough to do so … fact is, once you decide to take a stand on maintaining the integrity of your work of art, then you are forced to take head on all of the institutions and collectivized attitudes that characterise a particular society’s refusal to accept anything other than conformance. does that mean that the artist is the problem? censorship is probably one of the worst manifestations of such institutionalised ineptness at work, and saying that one should learn to make art palatable to such middlemen, is to condone the attitude of pathological paranoia that allows them to blight our art by preventing our collective consciousness from growing and dealing with changing realities in the name of shielding us from the excesses humanity is capable of.

Pritish Nandy, while writing on brevity, says

Years ago I remember Rajiv Gandhi once asking me (rather impatiently) for a note on how the media’s independence can be protected and yet a sense of responsibility enforced on journalists.

Protecting independence while enforcing responsibility. I wonder how that can be done.

The Times, in a pragmatic editorial on free speech, says-

Article 19 of the Indian Constitution, which guarantees freedom of expression, is subject to several caveats. The Indian state and the courts also have to play a careful balancing act between the rights enshrined in the Constitution, guaranteeing freedom of expression and speech, and provisions of the Indian Penal Code which proscribe speech and writings that could incite violence. Section 153A of the IPC prohibits speeches or writings that promote enmity between different groups; section 295A prohibits acts intended to outrage religious feelings of any class. Such laws limit the right to freedom of speech and must be seen in the context of maintaining order in a dizzyingly diverse country. But these can also be used as an excuse to gag authors and artistes. Bans should be imposed only in the most exceptional circumstances. Otherwise they undermine the very basis of a democracy.

I am not proud about the fact that this, once, was my position. The practical man is concerned with the consequences of ideas, not with the ideas themselves. If sacrificing Rushdie, or banning a film or book, results in a few less deaths than would have occurred otherwise, so be it, he would say. The thought that its those who take the law in their own hands who should be thrown into prison would not appeal to him. Jailing a mob is impractical. Gagging one man is very practical. Extremely practical people wrote the constitution. And extremely practical people tampered with it to serve their practical ends. That’s why the laws are the way they are. And people go on a rampage every time something gets under their skin. The artist goes to prison. The vandal becomes a politician.

Pittance

The Maharashtra State Human Rights Commission has awarded two lac rupees to the man who was wrongly picked up for posting “derogatory” stuff about Shivaji on a social networking site.

Almost two years after he was wrongly jailed for 50 days, Lakshmana Kailash K, 28-year-old Bangalore-based software engineer, will be a relieved man. Criticising the erroneous police investigation and the internet service provider’s ‘misleading information’, the State Human Rights Commission has ordered the company to pay Rs 2 lakh to Lakshmana as damages.

Lakshmana was at his Bangalore residence, when eight Pune policemen arrested him in the wee hours on August 31, 2007 for uploading derogatory texts and pictures of Chhatrapati Shivaji Maharaj on Orkut. He was brought to Pune and lodged in Yerwada jail, where he spent 50 days. The investigating officer, ACP Netaji Shinde of the Pune cyber crime branch (now retired), gathered the IP address from the service provider Bharti Airtel company, Bangalore, to get to Lakshmana. Both Pune police and Bharti Airtel apologised to Lakshmana for the error, when he was released on October 20 — nearly three weeks after the police picked up three Bangalore boys as the ‘real culprits’.

Read this and this.

Posting “derogatory texts and pictures” anywhere should never have been a crime in the first place. But then, we are a dumb nation.