A dialogue on Freedom of Speech and its restrictions

Justice Katju recently put up on his blog some points for consideration on Freedom of Speech. I did think it is vital for there to be a robust debate on Freedom of Speech and introspection on what it means.

There needs to be space created to look at different perspectives and implications for us as a country. Toward this end, I am writing this post as a continuation of a dialogue he has initiated. Please read his post here, since mine is a response and has that post as its context.

The overall message I got from that post was “but”. Seeing as how a “but” renders irrelevant what comes before it, I think it is important to realize that when we say “Freedom of speech is a good thing, but it must have restrictions” For practical purposes, it ends up meaning “Freedom of speech must have restrictions” in the same manner as “I would like to attend your party, but I am too busy that day” means “I am too busy to attend your party”. The rest is our “cushion” to make it sound more palatable.

In that sense, I see this post as a robust recommendation of several restrictions of speech. I don’t see this as a wrong thing to consider. It is a perspective on this whole “what to do about freedom of speech” debate gripping our public space and as long as there are people for whom this holds value, it must be considered. We are a democracy after all, and how we manage our public space for the well being of all must consider the interests of all.

My perspective on this matter is wholly different, as regular readers here know, and you can find out by reading a few old posts. To summarize the same in new words, my view is:

Reasonable restrictions

We have laws as a country to keep us safe. Our laws do cover for situations of causing another harm or even things like incitement and so on. If free speech does violate them, there is absolutely nothing wrong in this person being punished for it. And indeed, free speech never aims to advocate breaking the laws of the land. Our constitution provides free speech. Our laws provide safety. Subjugating both to a discretionary opinion of one person or a group of people – which in essence it is when we speak of things like offence, decency, morality, etc – is an insult to both. It limits the promise of the constitution, and it discredits our laws as adequate for the protection of our interests and gives arbitrary authority to diverse views in an already polarized environment. It is no secret that all ambuguity is dealt with by using a different, more primitive law – that of the jungle – might is right.

So in essence, keeping the question of whether free speech should be allowed open to arbitrary opinions does far more damage than allowing full freedom of speech would, because it takes away the question of legality altogether and leaves people to interpret “appropriate” to taste. For example, it is offensive to me for a woman’s character to be spoken of in a way that excuses violence against them in the name of modesty. Should I get a right to restrict all debates on the clothing or lack of it because of misogynist, crime excusing and thus offensive speech? Is my womanhood a matter of less respect than someone’s religion that some fictional character is more important to protect than actual crimes being done against our women?

We have far more crimes against women than religious crimes. Why is only a lens of religion the appropriate one in determining dangers of Free Speech? In our entire history and partition violence included we have more violence against women in our history than inter-religion violence provoked through free speech. Why must free speech protect rights of some and not others? We are the fourth worst country to be a woman in and categorically the worst to be a girl child in. Yet where are the reasonable restrictions on free speech that could save lives on an hourly basis? Dalits are far more victimized than Muslims. Why no free speech when economic fundamentalists speak of them as free loaders and thus invoke contempt and hatred for them for “unjustly pilfering resources in times of inflation”? So, why not apply those rules here? Why this selective silencing? Is it possible to protect everything and create an unsaid right to never be offended?

Never mind that. Let us talk about religion and Freedom of Speech and people’s rights. Where were these reasonable restrictions on Freedom of Speech, when Darul Uloom – an organization representing Indian Muslims and speaks on their behalf (or claims to) and asks to Saudi Arabia for a ban on Ahmedi Muslims for the Haj pilgrimage? Are India’s Ahmedi Muslims not entitled to this favor from the reasonable restrictions on Freedom of Speech to ensure their rights? Would such a statement from say – Narendra Modi – be accepted? So it is not about what is said. It is about who said, and who it is said about too. And thus we begin to divide India between citizens and those who are apparently more citizen than citizens.

Don’t want to delve into it, because imagination will give you endless examples how it is simply impossible to regiment an entire country into not giving offense. The bottom line is, right wing organizations have conditioned us to this manufactured expectation – that there actually is in the constitution something called a “right to take offense”. Darul Uloom, Deoband, Hindutva organizations, a few smaller fundamentalist organizations. That is it. The sum total of religious outrage and silencing that rules an entire country. And the Congress, which uses Free Speech to purchase minority votes.

What can be done?

I submit that it is BECAUSE of the potential for arbitrary authority over another that violence happens. Because arbitrary authority gets validated, and then when it doesn’t happen, it is seen as deliberate deprivation that needs to then be corrected with own efforts. If Freedom of Speech is upheld, then rioters being arrested and fined will lead to riots dramatically going down, the sanity of that method itself coming under question. Which I think would be a better direction for the country.

There would instead be far greater opposition and criticism through media, works of writing and so on. This adds to the country’s capacity to understand each other. Understand what makes another angry instead of simply labeling them as touchy oppressors using selective definitions of Freedom of Speech to hound others. The space for dialogue and reconciliation becomes possible if the violence threatening it is unconditionally squashed and the right of those words to exist is upheld, because then they invite more insightful ways of rejection too.

I don’t know the stand of the law and state and the preferences of the government, but I would definitely prefer newspapers having cartoon wars over various religious figures than burnt buses and killed people. But this space needs to be upheld impeccably for those precedents to be created. As long as violence rules, this is not possible. And as long as violence finds justification in its target being questionable under law, many people will be willing to blur those boundaries. Those boundaries need to be crystal clear. That will never happen as long as we use subjective definitions.

But how can people be protected at all then?

Ban ad hominems. Ban attacks on individuals, because they violate the individual’s rights. A much more respectful place for a country to aim for. If I don’t like someone, it should still be illegal for me to say “XYZ is a blah blah blah”, though it would be fine to say “ABC action of XYZ is blah blah”. An example that takes out most of the psychological sting of attacks. That should take care of any actual attacks in the guise of Freedom of Speech (which are actually currently perfectly legal – watch election campaigns) – which really drive conflict.

About “worthy” exceptions

It is interesting that Justice Katju brings up several important names as being worthy contributors to society and thus could be exempted even if they offended. Among them are names I absolutely love. Thomas Paine is one. This man has a bulls-eye idea on democracy. That instinct. Bone deep anchoring in human values, that makes every idea come out true to them. A person whose works must be included in text books to spread ideas worth thinking. His pamphlet “Common Sense” advocated the freedom of America and was so widely influential, that John Adams said “Without the pen of the author of ‘Common Sense,’ the sword of Washington would have been raised in vain.”

I find it particularly interesting that Justice Katju says he would make an exception for Thomas Paine even if he offended people, because when Thomas Paine died, six people reportedly attended his funeral, because he had been ostracized by the Church for his criticisms of Christianity in another pamphlet “The Age of Reason”, which argues against institutionalized religion.

Hindsight is twenty-twenty. Would a Thomas Paine living in India now be allowed to publish his “The Age of Reason” without being gagged for insult of religion or “Agrarian Justice” without being gagged as some anti-Capitalist (and thus Communist/Maoist) piece of writing or must we find a time machine for deciding who should be exempted from reasonable restrictions on their Freedom of Speech, and who must receive full freedom of speech?

On diversity

An adequate support to diversity by its very nature cannot be regimentation, because it will become too complex to protect every subjective perception. There are far more Hindus who were fine with M F Husains paintings, and Muslims who saw no reason to attack Rushdie. In allowing fundamentalists the power to hijack religious narrative, are we not killing this diversity and forcing it into an undesirable image? A diversity that is vital for a country of India – a diversity that will build much needed bridges of reason, instead of expect differences to conform to their view of the world and thus exist constantly in a state of militant frustration, because different identities can never present themselves as completely pleasing – no matter what.

What do we tell law abiding, tolerant citizens? That they don’t matter? That they could break laws to a certain extent if they wanted, that there is an exemption? Any religion. I know Hindus, Muslims, Christians – all kinds of people totally disgusted with the arbitrary and oppressive views of fundamentalists. What do we tell them? That fundamentalists must be given this right to silence in their name and their religion?

What happens in the meanwhile to my right to express my intellectual opinion that religions are stupidifying people? I can present data to prove this, but should I be silenced and the stupidity to continue unchallenged, simply because what I say is guaranteed to offend those who don’t want to hear it? Who will never consider the value I see in my observations and reject them – often without even hearing me out? Will this add to the intellectual capacity of our country and lead to better days? Will it EVER allow us to walk free out of this intolerant climate or should we simply accept that being born as Indians, we are inferior when it comes to managing diversity and we must be regimented to prevent catastrophe? Is this really at all what the idea of India is? Can Justice Katju provide one vision, where he says following these guidelines will enable such and such and thus, then this will happen and then, one fine day, we will be free of these intolerance competitions?

In the same way that covering up women will never prevent rapes, but is still recommended as a restriction of clothing, pretty much as the only solution, silencing undesirable opinions will never bring about tolerance, but is recommended as a restriction of free speech, pretty much as the only solution.

These are big thoughts with no easy answers and my view is just one of many, but we must make an effort to see beyond this curtain of religious intolerance to see how much of it is a political manufacture and how much of it is us cowing to threats of violence and choosing to restrict the non-violent.

We need to introspect carefully on the battles we abdicate out of fear of losing them and what we do to our values in the process. Without values, we are building castles of lies.

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About the Author

Vidyut is a blogger on issues of National interest. Staunch advocate of rights, learning and freedoms. @Vidyut

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