Process as punishment

Updated - December 04, 2021 11:26 pm IST

Published - February 17, 2014 02:29 am IST

I start this column with a sense of eerie déjà vu. One more book has suffered censorship in the hands of a fringe player, and some of the writers to the Readers’ Editor office are invoking cultural particularism to justify this blatant attempt at silencing a voice with which they differ. Some have gone to the extent of blaming this newspaper’s secular credentials for speaking out against the withdrawal of Wendy Doniger’s The Hindus .

There are some principles that are universal and they cannot be violated at whim by invoking cultural particularism. The Indian Constitution rightly terms them fundamental rights. Freedom of Expression is one such right guaranteed by Article 19 and the subsection 19 (2) has a provision only for reasonable restriction. The interpretation of this constitutional provision by the higher judiciary is generally to give accent to the enabling provisions, and to use the limiting or the restrictive provisions only in cases that really warrant an intervention.

The idea of banning, burning and pulping books is repugnant. Thought police is not a co-terminus of a free society. The Hindu had consistently opposed these excesses. I have been a journalist for three decades and I can list any number of instances where the newspaper took a proactive stand in these 30 years against the muzzling of free voices.

The paper rejected the idea of the draconian ‘defamation bill’ introduced by Rajiv Gandhi in 1988 and played a significant role in getting it withdrawn. In the same year, India became the first country to ban Salman Rushdie’s The Satanic Verses . This newspaper took a progressive stand against the ban. It was in the forefront to oppose the Iranian fatwa against the author. There was no wavering in the case of the Bangladeshi author Taslima Nasrin and the renowned Indian painter, M.F. Husain. When state after state tried to ban the film version of Dan Brown’s “ The Da Vinci Code ,” this newspaper meticulously explained that to ban the film, reacting to demands from some, was a grave constitutional impropriety, besides being imprudent. The editorial ‘Responsibility to protect’ (January 25, 2013) reaffirmed the newspaper’s stand: “In banning the screening of Kamal Haasan’s ‘ Vishwaroopam ’ for a period of two weeks, the Tamil Nadu government has recused itself from a fundamental responsibility — that of protecting the right to free expression. It has relied on the old chestnut — maintenance of law and order and public tranquillity — to justify the indefensible.”

Role of lower judiciary

What disturbs me is that the role of the lower judiciary in India has a propensity to admit cases on issues despite the well settled Supreme Court rulings regarding the freedom of expression. Further, the ease with which fringe groups invoke the Indian Penal Code and in particular Section 295A of that code, in the lower courts to initiate the criminal procedure is scary.

Readers should know this colonial legal provision of vintage 1860: “Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

The Indian lower courts rarely take into account the progressive interpretations of laws of the higher courts before granting an interim stay or initiating a criminal procedure on issues that have wider social and political implications. For instance, the Supreme Court in the Nakkheeran versus the State of Tamil Nadu case has clearly prohibited prior restraint. In the M.F. Husain case, Justice Sanjay Kishan Kaul, of Delhi High Court looked at Sections 292, 294 and 298 of the Indian Penal Code and came up with a brilliant framework where the role of thinkers and artists are protected against the fury of the fringe groups.

Earlier this month, the Supreme Court delivered an important judgment and it ended a protracted 21-year-old legal case. It was over a cover photograph, in Sportsworld (a now defunct publication of the Anandabazar Patrika Group), of tennis player Boris Becker covering the breasts of his then fiancée Barbara Feltus with his hands and a text that read: “Posing nude, dropping out of tournaments, battling racism in Germany, Boris Becker explains his recent approach to life.” The apex court rejected the puerile arguments against the photograph and the publication. Justices K.S. Radhakrishnan and A.K. Sikri have taken the trouble to make the crucial observations that should guide the lower judiciary in deciding on any issues relating to freedom of expression.

Some of their observations in the final judgment were: “A picture of a nude/semi-nude woman … cannot per se be called obscene….the obscenity has to be judged from the point of view of an average person, by applying contemporary community standard(s)…Further, the photograph, in our view, has no tendency to deprave or corrupt the minds of people in whose hands the magazine… would fall.”

While the editors of the Anandabazar Patrika Group were finally vindicated, it does not take away the fact that they had to endure a two-decade-long legal battle. In every case that involves the freedom of expression, it is the process that is the punishment. Unless there is some drastic legal overhaul at the lower levels of our judiciary, there will be no respite from thought police and vigilante groups.

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