Part 1: A User’s Guide to Free (and Unfree) Expression
One of the earliest references to the power of the human tongue comes from the Rig Veda, where Vac, the goddess of speech, speaks of the riches that she bestows. The line that reverberated with me for years was so simple, and so powerful: “Hear that you are heard!”
That is the argument, in essence, for free speech and freedom of expression: everyone hopes to be heard, and wants to have the space to tell their own stories. But most myths about human language also include the Tower of Babel story: at some point of time, we stop having a language in common, we stop being able to understand each other, and in the babel of angry speech, hate speech, harmful speech and people speaking past one another, it is impossible to be heard any more.
Countries tend to cycle in and out of eras of truly free speech and eras of strong and sometimes socially sanctioned censorship, but there is one blunt truth: without a strong, active and continuous commitment to free expression, citizens tend to lose free speech, and everything that goes with it.
Often, the debate over free speech in India is muddied by a lack of clarity over basic principles: some argue that free speech should cover the right to hate and harmful speech, some blame writers and artists for the threats of violence made against them, some have put forward the view that free speech is a Western idea, ignoring India’s own long history of tolerance, debate and discussion. The last few decades have seen pitched battles over free expression rights. These have often left writers, academics, artists, film-makers and journalists to face threats, attacks and curbs on their own, with little in the way of organised support from civil society and almost no political will to protect creative expression.
These are some of the core promises of free speech:
- Article 19 of the Constitution of India, which guarantees to all citizens the right to freedom of speech and expression.
- Article 18 of the Universal Declaration of Human Rights, which guarantees the right to freedom of thought, conscience and religion, read with Article 19 of the Declaration, which guarantees the right to freedom of opinion and expression including the right to “seek, receive and impart information and ideas through any media and regardless of frontiers”.
- The PEN Charter, which stands for “the unhampered transmission of thoughts” and a “free press”, and opposes “arbitrary censorship in time of peace”.
These are some of the most commonly debated issues surrounding free speech rights and limitations:
- The Harm principle, the Offense principle, and Democracy and free speech (see Stanford’s useful primer).
- Why free expression – which is “not self-perpetuating, but rather has to be maintained through the constant vigilance of those who care about it” – is so fundamental, according to the Index on Censorship.
- Preserving the “open architecture” of the web, according to the Electronic Frontier Foundation.
- Finding the balance between security and human rights, according to The Internet Democracy Project, with many posts detailing the experience on the ground in South Asian countries.
- Limitations to the fundamental rights as debated in Indian Parliament in 1948. This is just one example of how many perspectives there were on Article 19 and the restrictions on free speech.
India is increasingly a censored democracy, though it is useful to note that the rise in censorship has been accompanied by growing concern over the restrictions on free expression across the board.
Free speech is often seen as a foundational right because it is the precondition for creativity, scholarly research, understanding faith and ideological debates: it is impossible to write stories, histories or argue over core beliefs without this basic freedom.
It is also a foundational right in a deeper sense: citizens cannot question, challenge or protest the actions of the state, corporations or other institutions of power unless they have freedom of speech. It is an especially core freedom for groups that have traditionally not been heard, or that are under-represented or that have suffered persecution. For people ranging from those in insurgency areas to Adivasis articulating their rights over land, women and LGBT individuals speaking on gender equality, Dalits, OBCs and those in the forefront of the caste struggle, free speech is critical, and the lack of it can often, in the most literal sense, be deadly.
There is a strong perception that free speech is under threat in India and that we are losing free expression and equally crucially, privacy rights as surveillance by the state grows. Here are some perspectives.
Bird’s eye views
Free speech in India in 2013:
- The Hoot on the deaths of journalists, growing incidents of censorship and surveillance.
- Jonathan Shainin in The New Yorker on the beleaguered state of free speech in India:
- Human Rights Watch on the threat to rights from the Central Monitoring System.
The Internet and digital freedoms:
- The Index on Censorship report on India’s loss of digital freedoms, and how “takedown requests, both with and without court orders, are commonplace, and demonstrate that corporations sometimes contribute to censorship by over-complying with government requests.”
- Key analysis from Pranesh Prakash on how surveillance works in India, and on whether India can trust its government on privacy.
- Medianama’s coverage of India’s IT Rules.
Old and new laws that chill free speech:
- Salil Tripathi on the laws used to shut down free speech, such as Section 153B, which deals with “imputations prejudicial to national integration.”
- Saptarishi Dutta on the sedition law.
- Ram Mashru on the return of the sedition law.
- Lawrence Liang on the history of the sedition law and on Section 66A of the Information Technology Act, which prescribes “punishment for sending offensive messages through communication service, etc.” including for the purpose of causing “annoyance” or “inconvenience”.
Attacks on books, scholars and artists:
- A partial timeline of censorship from Independence up to 2012.
- The James Laine case in 2004, when a group called the Sambhaji Brigade attacked and destroyed several artefacts of historical importance at Pune’s Bhandarkar Oriental Research Institute, and assaulted one of its scholars.
- Romila Thapar on the Aligarh Muslim University controversy in the 1980s, when some groups sought the dismissal of historian and professor Irfan Habib for his comments on students activities, for which the university charge-sheeted him.
- Ramachandra Guha on the Oxford University Press and the “betrayal of Ramanujan” after “a petition filed in a court in the small Punjab town of Dera Bassi claimed that Ramanujan’s essay offended religious sensibilities.”
- Rohinton Mistry’s letter of protest on the withdrawal of his book Such a Long Journey from the Mumbai university syllabus in 2010 after the Shiv Sena’s student wing claimed that the book was derogatory towards Maharastrians.
- Ramachandra Guha on the decline of the great Nehru Memorial Museum and Library and the transformation of institutions.
India’s position in the World Press Freedom Rankings has slipped to 140 out of 180 countries. And closely allied to free speech is the freedom of religious belief. Here is an interesting and comprehensive overview of India from the 2011 Report on International Freedom.
Though the fear of losing even more of our freedoms is very strong, there is also, as many of these reports have pointed out, much faith in civil society, in independent sections of the private media, and in the courts and the legal system. The Freedom House report for India in 2012 gave the country a 2.5 grade on its 1-7 scale, indicating that we have basic freedoms, with room for improvement. If you do want to hear and be heard, this is an excellent time in the history of modern India to start claiming your right to free expression – and protect the rights of others.
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Part 2: What You Can Do for Freedom of Expression in India
When I was about twelve, I received an early lesson in the complications of free expression rights. A friend in school would pay small sums of money – enough to buy a packet of laljeeras or chilli chips – for the right to borrow and read our Archie comics and Amar Chitra Kathas during school hours. She couldn’t take them back home, because her father didn’t believe children should read anything but textbooks.
My mother was an aspiring lawyer, and I had a fuzzy idea that there were things called fundamental rights. I asked my teachers if this wasn’t a breach of my friend’s right to free speech. My friend looked nervous – her father believed also that children should be seen and not heard, and was not gentle about enforcing his beliefs – and said that she didn’t mind her rights being trampled upon. The teacher was an avid reader, though, and she found the question of interest.
Yes, it was a breach, she said. But just as you shouldn’t stop anyone from buying or reading books, you couldn’t force people to – and more than 20 years later, I still remember her exact words – “open their doors and minds to new books, especially if they are afraid of being infected by fresh new ideas”. My friend had two ways forward: if books and reading were important enough to her, she and her entire family should discuss and if possible, overturn, the father’s ban on books entering the home. Or she could wait until she was of age, and move to a more books-and-ideas-friendly home.
I still remember the relief that washed over my friend’s face. She hated not being able to read, and she disliked having to hide her reading habit as though it was the foulest of unspeakable vices. But she also shrank from the prospect of conflict. Those two things, the fear of being infected by new ideas and the dislike of conflict, underpin most discussions of censorship, in any country.
In Your Own Life
Censorship is not an abstraction, something that happens to inanimate objects – a book is censored, a play cut, a painting removed, a film set vandalised. It is, at the heart of it, about what we’re free to think and feel in private, and say and express in public.
You’re almost never fighting “against censorship”, or even for a fine but abstract principle. For almost everyone who thinks free speech is important, you stumble into it sideways.
You might start caring about free speech because there’s a book you want to read; for some, it’s a forest they want to protect; for others still, it’s a film they want to make, or a part of their own lives that they want to talk about. It might be that you want to change a particular religious practice, or that you want the right to speak freely about your faith (or lack of faith), your beliefs and your Gods (or your atheism and doubt).
You might suddenly start caring about free speech when your college or school tells you to stay silent on some subjects, or when a friend’s words or art is attacked and ripped to shreds. It is often the absences on the bookshelves, the missing films in the cinema, a sense of unease and hesitation when you try to voice something important to you, that is the first ground to tackle.
Many issues started to surface when I grew interested in book bans and censorship, and perhaps starting with your own life might be a useful way to begin. Here are some of the questions that have come up over the years in discussions and workshops with students:
1. In what ways have you felt censored or silenced in your own life? What could you not speak of openly with your family, or your circle of friends, in your workplace or with your colleagues, in your social, cultural or religious circles?
2. Have these areas of silence or internal censorship changed in any way over the years? When you have broken through a particular area of censorship, whether internally or externally imposed, how has it changed your sense of your self, your relationships and your life?
3. How might your life change if you felt free to speak about all of the subjects on the list?
4. In what ways have you either silenced the closest people in your life – family, close friends, mentors and colleagues – or helped them speak more openly about what matters most to them? What are the areas where you might want to restrict someone else’s free speech? What are the areas where you would most fiercely defend your own right to free speech? What are the areas where you would most strongly encourage people you care deeply about to speak freely of, and where would their free expression make you most uncomfortable?
5. What value do you place on free expression in your own life? How important might it be for you to have access to ideas that support your belief systems and politics, and how important might it be for you to have access to ideas that challenge and question principles that you believe in deeply?
One way to look at the law in any country is that they’re not a fixed, oracular set of pronouncements handed down from a mysterious Above. Reading about the free speech debates that accompanied the discussion of fundamental rights in 1947 and 1948, when Dr Ambedkar and the Constituent Assembly were presenting this brand-new country’s brand-new Constitution, is surprisingly exhilarating. Every debate we’re having today over free speech, its uses and its restrictions, is mirrored in their arguments.
The laws we’ve inherited have some residues from the most repressive acts of the British Raj – the Dramatic Performances Act, the Indian Press Act, the Sedition Laws. They reflect the concerns of those who had spent decades in the national freedom struggle over whether the responsibilities and duties that came along with freedom would be upheld in our rambunctious, argumentative and sometimes violent new democracy. They also shine through with idealism and the promise of rights; free expression was especially dear to a generation of patriots who had spent time in the jails of the Raj for the crime of speaking truth to power.
In practice, how far do the laws uphold free expression in India?
Even the most cursory search for free expression judgments demonstrates that the highest courts of the land haven’t hammered out a stand as clear and as unequivocal as the US belief in their First Amendment.
But the back-and-forth in the Indian courts on free speech reflects the debate elsewhere: laws are only, after all, expressions of what we value most as a culture, just as manners and tradition are reflections of how we expect each other to behave as a society.
Some of the rights the Indian courts have upheld: there should be freedom for the thought we hate; the law does not have to accept the views expressed by anyone in order to respect their right to express those views; before a creative work can be found insulting to religion it must be proved that the author intended to deliberately cause malice; a work of art may offer alternative assumptions about religious matters regardless of whether those assumptions are true, notions of social morality were subject and there is a need to tolerate unpopular views.
There are dissenting judgements, too, but some groups of lawyers believe that citizens need to start asking for their rights in the courts. Most book bans, when challenged in the courts, have been overturned, and over the years, there have been fewer demands for book bans at the Central level, for instance. Some interesting conclusions:
1. Know your rights, and ask that the state uphold them wherever possible. Institutions like the National Law University, Delhi and the Centre for Internet and Society are compiling databases of the laws on free expression and related civil rights.
2. Collect information and ask for transparency. For instance, the journalist Anuradha Raman spent several years filing Right to Information applications with various ministries and state government departments asking for more details about the process of book bans. More than six decades after Independence, her piece makes that process visible, for the first time.
3. Act on the information: once that information is in the public domain, any interested party can file a Public Interest Litigation related to freedom of information – as Shreya Singhal recently did with regard to Section 66A of the IT Act. The matter is being heard in the courts.
4. It can take a long time to establish a principle, but it’s still worth fighting for. This is a list of some major free expression cases from the American Library Association –it’s a long one, and reflects the regularity with which free speech principles are tested, challenged and upheld in that democracy. But the list also represents a set of principles that any democracy might find useful. We are still deciding on these issues: the foundational importance of free speech, the right to read freely, the right of minors to free expression, the right to dissent among them.
Lawrence Liang points out the ways in which the First Amendment to the US Constitution signals the kind of battles that we’re fighting today in India – his point about being cautious about placing restrictions on hate speech is key, and very relevant.
The history of public protest and collective action in India for free expression rights goes back a very long way. Restricting ourselves to just a few centuries, it is useful to be reminded that the tradition of town hall meetings to discuss British laws muzzling the press goes back to the time of Rammohan Roy and Tagore, and the tradition of dissent to periodicals such as the Awadh Punch and for instance to Jyotirao Phule’s project to reclaim history from a ‘bahujan’ perspective.
The tradition of protest and of defending free expression rights is both old and effective. These are some of the ways in which people have made an impact:
1. Open letters, petitions and other written campaigns. When Penguin India settled out of court, agreeing to withdraw and pulp Wendy Doniger’s The Hindus: An Alternative History rather than fight a lawsuit through the courts, readers responded in a variety of ways.
- Ananya Vajpeyi and other scholars started a petition asking the state to reform the law, and asking publishers to stand up for their authors.
- Lawyer Lawrence Liang sent a mocking legal notice to Penguin (on behalf of Shuddhabrata Sengupta and Aarti Sethi) asking the company to “leave the messy act of pulping” to juicers and grinders.
- Anmol Vellani, founder of the India Foundation for the Arts, urged readers to send their books by Penguin back to the publisher (he sent back Kafka’s The Trial). Two authors withdrew their books from the publishing house.
- Academic Brinda Bose organised a read-in from banned books at The World Book Fair. (Here’s journalist Rishi Majumder on how the protest was opposed.)
The cumulative effect of these protests is not often immediate: they may not be able to change the law, or affect the decision of the publishing house in this case. But protests build a network of concern, and offer people a common platform for their views; they also often persuade people to take further action in order to protect their freedoms.
2. Celebrate what you hope to protect. Read banned books for a year, for instance.
- One of the most joyous parts of the often serious debates on book bans is that banned and challenged books frequently create great lists of reading material. Take this list of science fiction and fantasy classics, for instance.
Not every book that’s banned is a classic, but perhaps because people tend to ban literature that makes them uncomfortable, there’s a ton of good stuff out there. India’s list of books banned after Independence is not remarkable in the literary sense, but it is a fascinating trawl through history, with many of these having been rendered innocuous over time.
- Create free speech walls, on college campuses and elsewhere. (This became something of a trend across Canada, despite challenges to the free speech walls and concerns over hate speech postings.)
- PEN’s Empty Chair campaign is a powerful way of drawing attention to writers who have been “imprisoned, detained, disappeared, threatened or killed”.
- Ask the creative minds behind Typerventions for ideas for a free expression campaign in the public space, or ask artists like Saba Hasan if they’d create a Missing Books/ Missing Art installation. (There’s no limit to how creatively you can protest – people have a million ideas, once they get going.)
- Strengthen what you love. Visit the local public library and try to revive it – most public libraries in India are flagging, and few function as nerve centres for the community of book-lovers. Support local bookstores, art galleries, musicians, independent filmmakers, designers, museums: their independence and their ability to create their work is what any of this fighting is all about.
- Organisations such as The Internet Democracy Project, The Centre for Internet and Society and Medianama work on and track free speech issues: they are excellent resources and often have archives of material on different aspects of free speech that are very useful for everyone from students to companies affected by the IT laws. For writers, editors, translators and journalists, the PEN All-India Centre in Mumbai has been up and running for a few years; the PEN Delhi Centre is in formation; offer them and similar groups your suggestions on how they should approach free expression issues.
- Find ways of supporting artists, film-makers, writers and creative people who’ve had to fight free speech battles on their own. Some suggestions that have been made include setting up a legal defence fund, for instance, or using the resources and network of organisations such as SAHMAT to oppose restrictions on free expression.
Ashvin Kumar released his film, Inshallah Kashmir, for free on the Internet after running into repeated trouble with the Censor Board.
Anant Nath and the Caravan decided to fight IIPM when Arindam Chaudhuri sued the magazine over a profile.
Delhi Art Gallery continued with its exhibition of nudes in the face of rightwing protests, and a Thrissur audience fought back, evicting Sangh Parivar activists when they tried to disrupt a screening of Ocean of Tears. (Habib Tanvir once defiantly performed to an empty auditorium when police removed the audience.)
The cost and time of court battles is easier to bear if there’s some sort of public support; authors like Murzban Shroff, and all of the individuals and institutions named above, are relying on their own resources, as Shroff did with his lawsuit. Authors like him, small publishers and regional language editors are often the most vulnerable and have access to the least in the way of resources.
3. Media organisations and editors elsewhere in the world have often found themselves banding together, across political and ideological lines, to form a more powerful front on free speech issues. If you’re a journalist, these stories might be of interest:
- African editors across the continent get together to try to fight criminal defamation and libel laws.
- In Mexico, an organisation that intended to train journalists on how to cover poverty issues turns into a crisis center for reporters at risk.
In addition to the usual free expression issues, the Indian media also deals with a related issue. The Internet Democracy Project, for instance, looks at “the challenges that the Internet poses for democracy and social justice in India and beyond”. The IDP’s work opens up big questions about free expression and public space, and the space for debate in India: if large sections of the country are cut off from these spaces, by dint of their gender, caste, or class, how much can anyone claim to be speaking for “the majority”, especially on the Internet and in the media? Their perspective is supported by Anil Chamaria’s study on upper caste over-representation in the national media. And by these pieces from The Hoot on the untold story of Dalit journalists.
4. Lean on politicians.
This one cuts across ideological lines. A landmark Supreme Court ruling in 1989 laid down a core principle: the state had to be responsible for handling the “hostile audience” problem. That is, if threats of violence were made against the creative community at large, it was very much the responsibility of the state to prevent the violence and protect freedom of expression.
In practice, it is rare for the state to see the protection of art, artists and creativity as its business, and it is common for writers and artists to be blamed for the violence that is threatened against them, as if the waving of guns, knives and the unleashing of mobs is any kind of reasonable response to any work of art. Political parties have had little incentive to protect free speech, since they don’t see this as a vote-getting issue.
- Find out how active the party you support has been in the protection of free speech rights: how have they voted on laws that suppress free expression? Have they worked in any way to actively support and promote free speech? What is their voting record over a 10 or 15-year period in Parliament?
- Write to your local MP or MLA and ask him or her how their party’s manifesto protects your free expression and privacy rights; where they stand on surveillance and on Article 19, and what they intend to do over the next five years to protect your rights or the rights of writers, artists and historians you care about.
- There are many cases where politicians and sometimes political groups and parties have threatened violence, burned books, disrupted theatre screenings or the staging of plays, wrecked art galleries or destroyed paintings, have actually attacked artists and writers physically, or threatened festival organisers and their audiences with harm or disruption. If you support that party’s ideology, ask them to ensure that any party member who issues threats or commits acts of violence has his or her membership withdrawn. Try to compile a record of violent or criminal actions taken by the political party you support against artists/writers/the creative community; mobilize opinion in your community, and put pressure on your party of choice to clean up their act.
Most of the victories for free speech anywhere in the world have come from groups of ordinary people. Parent teacher associations and librarians in the US have often led the “fight” for free speech; in Turkey and Hong Kong, independent booksellers often take major risks in order to keep the conversation going. Book lovers the world over are the ones who support authors under siege; students on campuses everywhere are the ones questioning the system, or taking part in street protests.
This list, which is partial, grew out of suggestions made by many people over many years – all they had in common was a strange thing. They didn’t become civil rights activists because they wanted to win battles over laws and principles; they started to band together because there were books they wanted to read, plays they wanted to see, histories they wanted to discuss and criticize, and ideas they were willing to be unsettled by. They see the violent protests of today and the legal challenges as blocks in the system, like silt in the water pipes: it chokes the free flow of ideas, but it is possible to clear the channel.
Nilanjana S Roy is a columnist and the author of The Wildings and The Hundred Names of Darkness. She has been writing about book bans and censorship for several years for the Business Standard. Follow her @nilanjanaroy