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Updated: March 25, 2013 13:05 IST

Straddling thin lines

Prashant Jha
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Taking forward the debate on freedom of expression versus hate speech, scholars and journalists made nuanced arguments in the Capital recently

In 2012, five journalists were killed. Over 40 curbs on the internet were imposed. Seven films and 19 literary or art-works were curtailed in some form or the other. And the Indian government made, on an average, 13 requests to Google every day, to take down material.

Soon after presenting these facts at a panel discussion on freedom of expression recently, Sevanti Ninan of asked Minister of State, Shashi Tharoor, why his government was so intent on stifling free speech online. The minister, taken aback, was quick to distance himself from the decisions. “I don’t know why they do it. I wouldn’t…But I think it is often done at the low and bureaucratic level. There is a great Indian characteristic of being offended, and institutions of government at times cave into pressure from such groups.”

But Mr Tharoor also laid out the political dilemma that was at the heart of the free speech debate from the perspective of governance. Emphasising that India was not a ‘classical liberal democratic society’, that things permissible in the west would spark a riot here, the minister said, “The government has to take a call each time, on a case-to-case basis. It is a difficult choice which reflects the temper of the times, and the mobilising capacity of the political groups. I would like to err on the side of liberalism, free speech but in politics, the lowest common denominator often wins, and inflamed passions have to be appeased.”

At another event last week, Jammu and Kashmir chief minister, Omar Abdullah used a similar argument to justify a crackdown on speech during volatile times. When asked if internet service had been blocked in the wake of Afzal Guru’s execution, he replied, “Not blocked, but the bandwidth was a little slower in some parts…It may have been a little tougher to upload or download material.” The audience erupted into laughter at the euphemism. But Mr Abdullah reiterated a point he often makes; that in a state difficult to govern, he does not have ‘the luxury of fighting bad information with more information’, since in that time-period, people may lose lives.

If the concern of the government is in blocking potentially inflammatory material in order to maintain order, a key concern for democratic activists is that this awards excessive powers in the hands of governments. It can be a convenient pretext to stifle genuine dissent and opposition, and at the heart of democracy is the right to challenge the existing ‘order’. But activists have also realised the pitfalls on unrestricted speech taking forms that harm democratic causes.

Nivedita Menon, professor of politics at the Jawaharlal Nehru University (JNU) and member of the political group blog, reflected on how her own views have evolved on the issue. During the feminist movement in the 1980s, activists had invested hopes in the state tackling hate speech against women, obscenity in the form of pornographic representation and other related issues. “But we soon realised that our allies turned out to be the religious right. And so we decided that the answer was in more speech, not less.”

Eminent constitutional lawyer, Fali Nariman, suggested that India needed a Civil Rights Act since it was not the governments that engaged in ‘hate speech’, but individuals. “The chapter on fundamental rights only has guarantees against the state.” But what was needed, he suggested, was an act that awarded rights to individuals against other individuals. Ms Menon, however, was quick to reject the idea and flag off her concerns. “The very first cases of hate speech, if such an act is imposed, would be against the marginalised, Dalits, tribals, the sexual minorities and others who challenge the dominant ideology.”

Instead, she suggested one way could be distinguishing between speech as opinion and a performative act. “If there is a physical attack, call in the forces of the state and arrest the offenders. If speech is a performative act, like calling for social boycott of Dalits or Khap Panchayats imposing their fiat, the speaking is the doing and must be dealt with. But opinions can be allowed to flourish, however obnoxious they may be.” Ms Menon however recognised that making such a fine distinction could be difficult.

With the increasing use of Section 66 (A) of the IT Act which has wide-ranging and ambiguously phrased provisions as grounds to restrict free speech; the tendency of groups to ‘take offence’ and seek legal and non-legal remedies; and the government’s increasing preference to side with the protesting groups for the sake of ‘order’, the debate on free expression promises to become more intense in the coming months.

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