Freedom of expression is often considered an amorphous thing, supposedly guarded by the Constitution, but in reality it extends only to a short distance of someone else’s feelings of outrage and hurt.
In a private member Bill introduced by him in the Lok Sabha on Friday, Congress MP Shashi Tharoor has suggested far-reaching amendments to various statutes to make it difficult for governments to ban books and to provide safeguards for authors and scholars from arbitrary and exhausting legal battles.
The Freedom of Literature Bill, 2018, puts on the government the onus of explaining why a book needs to be banned and removes the government’s right to ban books indefinitely. “The purpose of the Bill is to amend and remove the existing provisions of the laws which can be misused to harass authors by vested interests,” Mr. Tharoor told The Hindu .
The Bill envisages reading down Section 295A of the Indian Penal Code that provides for imprisonment of up to three years for “deliberate and malicious acts intended to outrage religious feelings or any class by insulting its religion or religious beliefs,” as well as Section 298, which is similar to 295A as it criminalises speech critical of religious organisations or religious figures, and therefore a major deterrent to free expression.
Mr. Tharoor cites the example of Wendy Doniger’s The Hindus: An Alternative History, which was banned in India because of legal travails under 295A. “There are already other hate laws, like Section 153, that crack down on deliberate acts hurting religious and other sentiments, you do not need these other laws to specifically hurt authors,” said Mr. Tharoor.
The other Sections that the Bill seeks to amend are the obscenity laws that Mr. Tharoor says are emblematic of a paternalistic state, which prescribes and imposes “social norms of the majority and the orthodoxy” and is “not in consonance with a liberal state.” These include Sections 292 and 293 of the IPC and Section 67 of the Information Technology Act. “The public good standard cited in these statutes to curb freedom of expression is problematic as it puts the onus on the writer to prove his case and depends on the subjectivity of the judge adjudicating the case,” he said.
In the modern technological system, even transmission of material deemed “obscene” can land you in trouble, something Mr. Tharoor says must be changed; only sending of material without the consent of the receiver should be considered a transgression.
The most important part of the Bill, however, are the amendments to the Customs Act that allows governments to suspend the shipping in of books over an indefinite period of time (as had happened with the ban on Salman Rushdie’s Satanic Verses ) and Sections 95 and 96 of the Criminal Procedure Code. “In my Bill, the suspension of shipping in any book can be imposed only for 30 days, with the government bound to approach a High Court to explain why the suspension was imposed and why it should be extended,” he said.
As a private member’s Bill, the legislation has hardly any hope of passing, but it reflects the contested terrain of freedom of speech and expression despite constitutional safeguards.