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Mainstream, VOL 60 No 50-51, December 3, December 10 2022 [Double issue]

The Right to Offend | Santosh Mathew and Anita Elizabeth Mathew

Friday 2 December 2022

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by Santhosh Mathew and Anita Elizabeth Mathew *

No idea is above scrutiny;
No people are below dignity
—Majid Nawaz

This article addresses one of the most polarising concepts in today’s India — the Right to Offend. Two events have fuelled this discussion. First, the Supreme Court’s attemp to remove the existing Sedition Law, inherited from India’s colonial rulers (inserted into the IPC in 1870). Secondly, the fall of India’s and South Asia’s ranking in the World Press Freedom Index 2022. Along with the increasing number of sedition cases foisted by the authorities, allegedly due to national security concerns, and used as a weapon by governments to supress dissent, it also becomes imperative to take note of the rise in ideological and religious extremism in South Asia, caused simply by what one would call ‘offensive activities’. This poses a question — should a person have the right to offend anyone as an extension of their own freedom? Does India need a Right to Offend?

IN THE 2015 SHREYA SINGHAL case, Justice Rohinton Nariman’s judgement striking down Section 66A of the IT (Information & Technology) Act as ‘unconstitutional’ — owing to lack of clarification on what is ‘offensive’ and what is not — has become increasingly relevant in the largest democracy of the world. This question becomes really important in view of the Law Commission recommendations to review the Sedition Law. However, implementation is still tardy as governments all around the world, and specifically in South Asia, have used these laws more to curb dissent than achieve what they are aimed at on paper.

Before we discuss any Rights, let us first look at the status of the law that awards even life term for violation. The law on sedition is laid down in Section 124A of the Indian Penal Code. It says, a person can be charged with sedition if s/he ‘brings or attempts to bring into hatred or contempt, or excite or attempt to excite disaffection towards the Government established by law in India’.

Such perceived disaffection or dissent can be through words, signs, or by any visible representation, even a non-violent dharna. In free India, for seventy-five years, this particular law has been interpreted differently by the country’s twenty-five high courts and different benches of the apex court. In the Kedarnath vs the State of Biharcase, the apex court limited sedition to be applicable only in cases of ‘activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace’. In theBalwant Singh vs Union of India case, it was categorically stated that, ‘every expression of criticism is not sedition, and the real intent of the speech is to be taken into consideration before deeming it as a seditious act’. The NCRB (National Crime Records Bureau) data shows that since 2010, approximately 800 sedition cases have been filed in India against more than 13,000 people.

In 2018, the Ministry of Home Affairs wrote to the Ministry of Law and Justice requesting the Law Commission to study the provision. The Law Commission came up with a consultation paper on sedition in August 2018 and recommended ten points to be considered while discussing the future of this sedition law.

With the Union of India’s affidavit in the S G Vombatkere v Union of India case and the order therein, Section 124A on sedition has been put in abeyance even as the Supreme Court has decided to review it further. The state, in its affidavit, said that ‘it had decided to re-examine and reconsider the provisions on sedition under the IPC’. The state also asked the Supreme Court to ‘examine the constitutional validity of the law’, once the exercise of reconsideration has been undertaken by the government. Accordingly, the Court deemed it ‘inappropriate to use the provisions on sedition’ till the re-examination by the Union of India is complete. Additionally, the Court recommended that ‘governments should restrain from registering any FIR, or undertaking any coercive measure in sedition cases till the matter is under consideration’. The Court also ordered that all pending proceedings concerning sedition should be kept in abeyance.

What Exactly is Offensive?

Now let us consider, what exactly can be termed as offensive? Racism, misogyny, homophobia? Or can anything one thinks, feels or perceives be considered as ‘offensive’? Can any question asked, or any belief be seen as an offence? While Nicholas Copernicus did offend the established status quo, when he proposed a stationery sun as the centre of the universe, it was Percy Bysshe Shelly in 1811 with his The necessity of Atheism that drew expulsion from Oxford University (Atheism’sAesthetic of Enchantment, Andrew Copson, The Guardian, 2011).

 From a civilisational perspective, India in contrast, has always encouraged Tarkshastra, debate and even has a treatise dealing with the dialectic process, logic, and discussions that took pride in open communications and dialogue. But the recent deluge of arrests under the sedition law, especially by a government that allegedly champions tradition, highlights a saying that if you have a hammer, everything looks like a nail.

Is India becoming increasingly so insecure about its own ingrained culture and tradition that society here is turning into groups of touch-me nots that find an ever-growing need to defend themselves from even mild criticism not only in the name of religion or community, but also national security?

The Right to be Offended

Primarily, the right to offend has three separate dimensions and some pre-established legal framework that encourages the right to be offended.
First, section 124A of the IPC is to safeguard the Executive. The number of cases under 124A has increased by 160 per cent from 2016-2019 and bulk of these cases are filed for criticising political leaders and governments. It is the same section 124-A that was used during the colonial rule by the British to arrest any dissidents and this law is supposed to become irrelevant once India adopted a constitution. But it did not. It grew more Draconian.

This, in spite of the fact that to address the judiciary’s right to get offended, we have the contempt of court rule and for the legislature we have the privilege motions.

Second, the right of a community to get offended involves section 153-A of the IPC, which deals with promoting enmity between communities. This may be needed and it refers to clear promotion of enmity or any form of incitement.

Then we have section 295-A which is about insulting a religion in any form — this is considered a ‘violent act’ and can lead to arrest which is cognizable and non-bailable.

Defamation is addressed by section 499 and section 500 of the IPC and involves civil and criminal defamation.

We also have two other strict laws: The Unlawful Activities (Prevention) Act 1967 and the National Security Act, 1980. On 1 February 2021, the apex court ruled that bail could be granted to an accused if the right to speedy trial was violated in case of UAPA charges.

In the 1992 Kedarnath Singh judgement, the Supreme Court was fully aware of the implications regarding the bare reading of the sedition provision and how it could be used to silence free speech or quell dissent. It was keeping this in mind that the application of sedition was consciously narrowed down to instances of having ‘intention’ to cause any public disorder or endanger the security of the state. But did this in any way change the prevalent interpretation of sedition?

Sedition Today

The Vinod Dua case in 2021 provided a new interpretation of sedition. In this case, the Supreme Court bench attempted to examine the constitutionality of the sedition provisions and tried to define its limits as frequently and often, absurd sedition charges are included, like drawing a cartoon or singing a song. The Supreme Court quashing a lower court verdict on the case and upholding journalistic freedom was seen as a roaring victory for press freedom. It meant, the apex court thought sedition charge cannot be applied for simply criticising the government on public policy.

 What is of great concern is also how easy it has become to accuse any journalist, artiste, academician and any other ordinary citizen of sedition and of working against the state’s interests.

Sedition charges were brought against the leaders of the Patidar agitation in 2015, protesters against Gurmeet Ram Rahim Singh’s conviction in 2017, the Jat unrest in 2017, the Pathalgadi movement in 2018 and those opposing the Citizenship (Amendment) Act, 2019. The most controversial instance of what seems to be misuse of this law was the arrest of the 21-year-old Bengaluru-based climate activist Disha Ravi in the ‘toolkit’ case. The Delhi police accused Disha Ravi and two other individuals in that case of collaborating with a pro-Khalistan group called ‘Poetic Justice Foundation’ and linked them with the 26 January violence during a farmers’ rally in Delhi.

While granting bail to Disha, Additional Sessions Judge Dharmender Rana said that the offence of sedition cannot be invoked to ‘minister to the wounded vanity of governments’. A very similar fate has been shared by many journalists, artistes and comedians or protestors.

Vasudhaiva Kutumbakam

 The idea of a society with an inherent ‘Right to offend’ goes against the very grain of Indian culture that believes in the world as one family of Vasudhaiva Kutumbakam and preaches peaceful coexistence.

A right to offend in this setting would mean the right to hurt others by the assertion of our own rights. This, in the land of Buddha, Tirthankara and Gandhi would be difficult to accept. This would, ideally, not only lead to disarray in the administration but is also equivalent to a ‘Right to Violence’.

It is also noteworthy that with the Rights also come individual responsibilities and accountabilities towards the rights of others. During the freedom struggle, India has always talked about Rights and Duties — for example, Mahatma Gandhi’s dissociation from the Chouri Choura movement or any kind of violence came with the essence of harmonious coexistence, come what may.

The right to offend in India would bring silent undertones of emotional and psychological violence as no individual should have the outright authority to hurt the feelings of others. We have to make up our minds as to whether a section of people have a right to be offended by somebody else’s freedom of expression. We cannot move towards an unmindful society, deaf to all kinds of sensitivities.

 Field Reports





Press Freedom in South Asia

Let us now look at some of the ‘offense’ cases from South Asia and the declining Press Freedom Index (PFI) 2022.

Bangladesh 

Sedition in Bangladesh is primarily dealt under the 2018 Bangladesh Digital Security Act (BDSA) which succeeded the Information and Communication Technology Act of 2006. It governs cyberspace and lays out the framework for determining penalties.

In the last few years, a number of activists, journalist and poets have been arrested by the authorities under the act. A prime example of the same would be the arrest of a 15-year-old boy for defaming Islam simply by liking a Facebook post that seemed blasphemous. Additionally, Bangladesh is also under United States sanctions due to the alleged use of Rapid Action Battalion (RAB) for curbing dissent against the government and is also accused of several human rights violations.

According to the Special Prosecutor in the Cyber Tribunal, 65-70 per cent cases under section 57 of the earlier ICT Act would not stand in any court of law and was simply used to harass individuals. The current 162 ranking of Bangladesh on the PF index is because of the Bangladesh Government’s history of prosecuting citizens based on alleged online crimes. Hate crimes has also been on the rise in Bangladesh — the long array of Durga Puja violences, followed by vandalism and countrywide strikes after alleged blasphemy perceived by the majority Muslim population are examples. The underlying question here is again of freedom and security for non-Muslims.

Pakistan 

The PFI ranking of Afghanistan before Pakistan has come as a shock to civil society. How can a government run by the Taliban, with open assassination of journalists, be better than a ‘supposed’ democracy like Pakistan? Here we see a significant parallel to neighbour India, with rising intolerance and blasphemy charges and sedition cases, with political motive at the core. Like India, Pakistani courts are still tied to the colonial 124A Sedition Law in the Pakistan Penal Code (Omar, 2020).

It is in Pakistan that a Lankan national was killed on the open street in an act of religious bigotry in 2021. The Pakistan Media Development Authority (PMDA) under Imran Khan’s government denied journalists their constitutional right to peaceful protests and censored journalistic freedom as well in the name of peacekeeping.

Extending sedition charges to political activists, human rights groups and defenders or individuals in a proactive role and the absolute lack of clarity on what is sedition allows the government in Pakistan to interpret sedition any way it wants.

Bhutan 

Bhutan is the best performer in the 2022 World’s Press Freedom Index from South Asia, ranking at 33rd position.

 Bhutan provides some logical understanding of sedition. The Bhutan High Court dismissed the Royal Police’s sedition case against businessman Penjore who actively criticised the government and called it a ‘lawless nation’ on facebook. The court reiterated the importance of freedom of speech and the rule of law.

Yet, in same Bhutan, we have the Supreme Court upholding the High Court’s judgement and sentencing Khandu Wangmo to 21 years in prison for sedition (Lamsang, 2021). She has been convicted for hateful statements and insulting the King or the Royal Government of Bhutan.

At the same time, one cannot ignore the constant efforts over time to maintain homogeneity like in the Lhotshampa massacre incident. This lack of plurality and the prevailing hierarchical way of administration and living has not created much differences in opinion or separatism that challenges the government. This is reflected in its press freedom ranking. This type of model is not something that countries like India can replicate as its essence lies in pluralism.

Creative Freedom

As individuals, does believing in something and not in the opposite give us the right to decide which ideas are worthy of expression and which are not? Creativity via books, films, comedy, songs, dance, graffiti, or any other forms has been constantly attacked by diverse beliefs of the people from different backgrounds for ages. An example would be a modern classic and super-seller like Harry Potter. While these books have claimed a world full of potterheads, it still offends a certain section of the world community that find witches, wizards and demonic references in the text ungodly.

A similar fate is faced by almost all creative content available in India today. And probably the worst is faced by our jesters. It is not only Munawar Faruqui who got jailed for a joke he cracked but also several others who have either chosen to tone down on their jokes or go all out with their creativity, no matter what offends whom.

In July, comedian Agrima Joshua was sent various rape and death threats after a joke about Chhatrapati Shivaji Maharaj’s upcoming statue. She issued an official apology, yet, her social media was flooded with how comedians are going out of control and one of them needs to be killed for comedians to understand their aukaat.

India Specific

It is, however, not always that governments conspire to curb freedom through sedition laws. In India, sometimes, it is the aggressive media framing and polarising public opinion. At other times, it is the authorities’ reluctance to implement laws like Sec 66A which was struck down but cases are still being filed under it. It is the widespread misuse of power by the police who book people for criticising any political party; it is promulgation of ordinances like 118D, criminalising online posts. It can also be owed to India’s slow-moving democracy.

 Academic Freedom

 To discuss academic freedom in India, we will be analysing three highly publicised events. First, the resignation of Professor Pratap Bhanu Mehta from Ashoka University. Second, the refusal by the Director of IIM Ahmedabad, Errol D’souza to allow MoE to review a PhD thesis approved by the institution. And the third, the obstruction to screening of Vivek Agnihotri’s Buddhaina Traffic Jam in Jadavpur University.

These three events might seem dissimilar but collectively illustrate the ups and downs of academic freedom and the consequences of perceived offence towards the state or community.

Professor Mehta was a public intellectual at the Ashoka university, who has been a fearless critique of the government on national media and was finally forced to step down from the private institution. Similarly, with D’souza, who was a Director of a public institution who took a stand for academic principles, claiming his authority to do so as the institution Act granted it autonomy from the state. As a result he faced the government’s ire, harassment and interference.

These incidents involve two kinds of academic freedom — academics’ engagement in the public sphere and research on controversial matters within the university. Universities and their constituting teachers, students, and staffs have for long been at the receiving end of government restrain directly or indirectly. Faculty and students continue to be targeted for unpopular intellectual opinions, attack on campuses are often engineered, homes raided and books and papers seized.

Activists like Shoma Sen of the Nagpur University, Anand Teltumbde of the Goa Institute of Management and JNU students like Natasha Narwal, Debangana Kalita, Umar Khalid and Sharjeel Imam have been detained under UAPA and called ‘urban Naxals’ allegedly conspiring to overthrow the government by inter-community violence (Ghadyal Patil, Abhiram, Das, 2018). Sharjeel Imam stood accused of ‘being radicalised’ by merely reading the books he read for his MPhil thesis on violence during partition.

The Indian government’s reigns in these institutions are obvious by the increase in contractual teaching staff, who can be at once terminated if they demonstrate any independent thinking. New service rules cancel the right to free speech. In today’s higher education institutions, the rules violently attack the ideology of ‘dislike’, only ‘like’ is allowed for everything the government says and does and this goes for teachers and students in these institutions. This is undoubtedly a form of curb on academic freedom.

Mirror of Society

The world of filmshas seen various degrees of censorship from the very beginning of the medium. Government censorships worldwide are mostly done to remove any kind of objectionable content that does not gel well with certain societies. It also prevents the influx of new ideas into these religiously controlled societies. In this changing paradigm, independent films or unregulated content on the OTT platforms provided a ray of hope for a few years when it was a new platform. In India, new OTT laws propose to monitor the content on three rigorous levels.

The question here is that can any faith or any belief of a person be shaken by a mere negative representation of the truth? Or a criticism that the audience finds it difficult to accept the freedom of speech of these artistes or creative minds, so these artistes should halt their creative outputs.

India, for a long time, has been recognised as a hub of liberal society with freedom of expression better than at least middle eastern countries or authoritarian governments. Pakistan’s Banana News Network spoofed and mimicked corrupt politicians until 2015, through all the dictatorship years. Similarly, Iranian films issue powerful rebuttals to prevailing political conditions and criticise authoritarianism. They have always done so, during the Shah’s time and during the Khomeini times. Chinese dissident Ai Weiwei continues to fearlessly rile the government via films and images, based on conditions in Hong Kong (Thorpe, 2020). These realities show an increasing mediocrity in creative work in India, which simply abides by the rules of society out of sheer fear of reprisal.

The increasing culture of labelling a person for opposing ideologies is both a curb on academic as well as on religious freedom. An example is obstruction to the screening of Vivek Agnihotri’s Buddha Stuck in a Traffic Jam. The film-maker was heckled and attacked outside gate no 8 of Jadavpur University. Agnihotri was accused of Rohith Vemula’s death, supposedly because the film hurt his Buddhist-Dalit sensitivities.

Religious Freedom

Adding meaning to how scary and destructive ‘offence’ can be, all we need to do is add religion. Like when a schoolteacher in France gets beheaded for offending religious extremists by showing a satirical cartoon previously used by Charlie Hebdo to a group of schoolchildren in a cultural democracy like France. In a way, we tend to live in the age of offence.

Another primary example of the evolutionary biologist Richard Dawkins whose event was cancelled after he was invited to University of California, because he was perceived as Islamophobic. Dawkins said, he criticised all religions at the same time in his writings. Universities, today need a self-check and open spaces for debates, enquiry, and knowledge acquisition that the current government is hell-bent on denying.

And taking offence is not an explicit right of any particular political or non-secular or cultural cluster. From the most self-acclaimed liberals to Hindu fundamentalist social media to various Muslim fanatics, nowadays all of them operate on ‘getting offended by something or the other’ with varying degrees of reaction.

Our nation is not a stranger to individuals getting outraged. From a world famous artist like MF Hussain literary being thrown out of the country for ‘offending’ Hindu fundamentalists, to Salman Rushdie cancelling his book signing in Jaipur due to intelligence report of a possible mob attack on him from Indian citizens for allegedly hurting their religious sentiments, to a jewellery brand like Tanishq being boycotted for its pro-women ads and Surf Excel being targeted for their meaningful and impactful advertisements, with false claims of causing ‘religious disharmony’.

Secularism is an inherent constitutional principle, prohibiting any religious interference in the affairs of the state. The blasphemy laws do not aid the state to become secular in any way. If anything, it may betray secularism by being partial towards religions for appeasement or vote banks at the expense of non-believers. Several clauses within the IPC make it a ‘punishable offence’ many things that are open to broad interpretations and are subjective. Section 295(A) and 298 criminalises acts and speech intended to outrage religious feelings, including words, visible representations, or any other signs. Who is motivated by deliberate and intended malice is left for the court to decide.

In Ramji Lal Modi vs State of UP (1957), the apex court upheld the constitutionality of India’s blasphemy law. It held that the legislation was a ‘reasonable restriction’ on free speech in the interest of harmonious public order. It held that blasphemy includes a ‘tendency to bring about public disorder’. This argument is flawed in two ways.

Firstly, it allows for what is called the Heckler’s Veto.The fact that people will react to someone’s speech violently should not silence the voice of others who want to speak out. Yet, this seems to be the case in Punjab. The government is reacting vigorously to intense protests against the sacrilege of the Guru Granth Sahib. But the intensity of protests should, at no cost, be a reason to silence unpopular expression and opinion.

The second issue is that the ‘tendency to cause public disorder’ is not clearly defined. The criterion also fails to recognise that speakers cannot be blatantly held responsible for what other people decide to do or not to do.

Blasphemy neither constitutes ‘incitement to violence’ nor does it constitute ‘lawless actions’ as per Supreme Court standards in India. For these reasons, the blasphemy law in India is incompatible with the constitutional right to freedom of speech and expression. Any ‘deeper’ importance of religion in our regular lives does not give us a good reason for making an exception to our freedom of expression.

Data Analysis

Analysis of the primary data collected via google forms and questionnaires shows:

  • 47.6 per cent of the respondents believe that freedom of speech should not involve the right to offend. About 37 per cent believe freedom of speech should automatically involve the Right to Offend. On very similar grounds, 81 per cent of the respondents believe that if someone says something racist, homophobic, misogynistic or insulting to any religion or community, it is a misuse of freedom of speech and that should be stopped. Similarly, the survey also shows that 57.7 per cent or the majority from a highly diversified sample pool thinks that freedom of speech should not be absolute.
  • Comparing these responses with the response by our anonymous respondents in India’s central administrative services, we see there is a clear contrast. Here, the focus is more on the freedom of speech and propagation of thought. For example, Piers Morgan always had the journalistic freedom of saying what he wanted to, but he was asked to step down because of how the global audience did not see this as the ‘right speech’. Here the respondents believe that for the dominant powers in any society — may it be civil societies, influential leaders or widely accepted governments — free speech simply means nothing more than ‘right speech at the right time’.
  • Similarly, for governments, what is beneficial for them is free speech.
  • 71.6 per cent of the respondents strongly believe that there is an increasing need for amendment to the sedition law of India, to suit the democratic framework of the nation.
    This data collected goes hand in hand with a paper published by the Law Commission on India in 2018. The United Kingdom, where the law originated, repealed it in 2009. But not everyone in India believes that it is redundant. About 18.6 per cent of the respondents do not feel the need to amend or scrap the law. Repealing the law can have repercussions in India, because that could mean no check on terrorism or any separatist tendencies, this segment says.
  • As many 43.3 per cent of the population believe that Indians do not need a ‘Right to offend’. Definitely not as a sperate fundamental right. It should be inclusive in the freedom of speech. Only 34.6 per cent believe we need the Right to Offend in India.
  • Here, the tipping scale is the remaining 22.1 per cent which is not sure about this Right but is a very decisive pool that can change the majoritarian voice of the people with a very slight change.
  • However, what formed the most important part of the Qualitative research is the bulk hesitancy noticed in the respondents to fill up the survey. Almost, 30-40 per cent of the respondents personally worried about whether the anonymity of their identities would be maintained. This showed, they feared some sort of reprisal from the government if their names and answers were known. They were all afraid of harassment if the responses became public. This clearly highlights the fear people have of criticising the government.
    This does not speak for a democratic environment.

Analysing the collection of secondary data:

  • Creative scrutiny is something that India has never been a stranger to. Many people are aware of Rushdie’s alternative interpretation of Islam in SatanicVerses and how the book was banned in India in 1988. What we are not aware is how former Prime Minister Indira Gandhi also found Midnight’s Children offensive as it described the Emergency and alleged involvement in election fraud, as well as Sanjay Gandhi’s ‘ethnic cleansing’ of the Jama Masjid slum. But what is notable is that Midnight’s Children was never banned. But the Rajiv Gandhi government felt otherwise. Even if these tales seem a lifetime ago, they still have meaning in the Indian context.
  • From cartoonists like Aseem Trivedi getting arrested on charges of sedition to defamation charges on Hasmukh series’s Vir Das, recent arrest of comedian Munawar Faruqui and FIRs on the Tandav series, Bombay Begums — that is anything that does not belong to mainstream Bollywood entertainment — has faced censure not only by the government and political parties but also from communities at large. It is important for civil societies, communities, or governments to regulate content that has the potential to disturb social security and safeguard public and cultural interests. However, continuous clamp down on creative content with a different angel of representation will put the full stop to creative liberty and thought. It is also the duty of the general public to demand that creative artistes create something new and meaningful, instead of sticking to what is safe and conventional.

The arrest of students like Disha Ravi, Safoora Zargar, Umar Khalid for voicing their ideological standpoints which seems to offend the government is one of the reasons behind this study. The worst kind of injury to free speech is the curbs on academic freedom. In 2017, when students of BHU protested against gender discrimination, they faced police batons and were accused by the university Chancellor of illegal protest. This is a recurring occurrence in every central government university in the country, from JNU and Jamia Milia to Ashoka.

In a Begusarai case of 1953, the apex court had upheld the conviction of sedition where the government was criticised but Disha Ravi was released on the grounds that criticising the government is not sedition. So, time also sees a different verdict on the same charges.

What is alarming is the NCRB 2019 data: most sedition cases in recent years were slapped on 18—30-year-olds. Simply sharing online documents or participating in protests or campaigning for environment is seen as offensive and subversive actions.

In a highly globalised world, for India to be global, free speech and expression should be seen and heard by a global audience. As Indians, we express various thoughts and opinions on policies by the United States, about the country’s presidential election, our favourite international albums, actions by artists just not in India but elsewhere. India must therefore understand, the rest of the world also has equal right to voice opinions about Indian laws, culture, protests etc. It is by sharing and resharing of different cultures and opinions that we learn from each other and get more connected. If everything is taken as an ‘offense’, then that part of the communications gets shut out and we are left with no exchange of ideas.

Criticism of Religion 

While talking about religious freedom, the primary question to be asked is, does criticism of a religion or disbelief or dislike towards a religion a criminal offence? After research done on various case studies in India and elsewhere, the plausible answer is that if we are talking about Right to Offend, we also must acknowledge the Right to get Offended.

 And those who get offended are welcome to protest peacefully but definitely not kill or gag offenders like the classic Charlie Hebdo case in France. As Feroze Mithiborwala puts it: It’s high time religious people realised one basic truth — every religious text and tradition is offensive, blasphemous and heretical to the followers of other sects and religions.
In India, free speech does not extend to offensive speech. But the irony is, every religion has strong beliefs in its own superiority, and this necessarily offends other religions in the process. Freedom to practice any religion inherently implies freedom to offend others, and tolerance by those offended by it.

All freedoms are subjected to reasonable curbs. If someone deliberately incites violence that must  certainly be stopped. This does not include allegations like ‘love jihad’ and laws against interfaith marriages. Christianity views people who do not worship Christ as ‘heathen’ who cannot go to heaven. But is that a justifiable ground for burning the Bible or killing Christians? The Quran and Hadith historically led Muslim conquerors to convert by the sword and kill millions of people but that does not justify banning the Quran and Hadith. Hindu scriptures hold that bad people, inclusive of people from other religions, will be reborn as animals like dogs and pigs. This does not explain the killing of Hindus or banning the scriptures. A faith that feels threatened by criticism or disbelief of others is a sign of the follower’s insecurity and ‘lack of faith’ in one’s faith. People of different religions can co-exist only via tolerance, not punishment or revenge.

This Dubious Right 

What will happen if India really has a ‘Right to Offend’? Everyone would have the right to offend others — offend the state, the individual, the community — and all we have to do is listen to it and not act upon it in any way. Surely, the right to offend would make criticising the state legal, criticising any faith legal, would give absolute artistic freedom and cater to absolute propagation of any ideal. At the same time, Ram Dev Baba’s right to openly advertise that he can ‘cure’ homosexuality by Ayurveda will have to be acknowledged or panchayats ostracising girls for wearing jeans will have to be heard. Offensive and outrageous comments celebrating racism, homophobia, communal disharmony etc will all be legal.

Having said that, absolute freedom of speech and expression means safeguarding the speech of every person, irrespective of the popularly accepted opinion. For example, after 9/11 it was the accepted that enemy combatants, primarily from Afghanistan and Iraq held in Guantanamo Bay, should be tortured to death and this was widely supported. With the change of time and recognition of basic human rights for these detainees, such extremism by the state today faces strong criticism.

The World View

Presenting one of the most complicated religious perspective, author Brian Winston in his book, A Rightto Offend, analyses some very important contemporary cases of ‘offense’ which can help in putting things into perspective (Winston, 2012). He effortlessly brings up the battle for and against free speech in an evergreen and ceaseless manner, with examples like the ban on screening the film Noah in various Islamic countries; Ayatollah Khomeini’s fatwa against Salman Rushdie for the Satanic Verses; John Milton’s Areopagitica and many more.

In this book he takes help of the concept of Harm Principle. The harm principle holds that the actions of individuals should only be limited to prevent harm to other individuals. John Stuart Mill articulated this principle in On Liberty, where he argued that, ‘The only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others’. According to this harm principle, a ‘Right to Offend’ in a diverse country like India would also mean a guarantee of the ‘Right to Get Offended’.

We must accept that we do not live in the ideal world or the ideal democracy. The principles that govern free speech have to be constantly negotiated and renegotiated as each society evolves. The right to offend is important for the foundational liberty in a democracy which needs self-assessment.

Either the sedition law has to be taken off the statute book or use very sparingly and with possible decrease of criminalisation. In cases like sedition, the process in itself becomes the punishment because of media trials, societal influence and long waiting lines in the courts. The judiciary must jealously guard the personal liberty of the people. By not hearing habeas corpus petitions for months and denying bail in genuine cases can further decrease India’s partially free status to not at all a free- status country.
Given that governments within the framework of the existing model of Indian democracy survive on public mandate, they should be mature enough to handle criticism of various policies and adapt more to correct the course rather than penalise its own people. While national security and integrity of the country are non-negotiable, democratic principles enshrined in the constitution also must never be compromised.

These many examples show that there is no absolute Free Speech in any country. The narrative is different for free speech for each and every government, and anything opposing that becomes ‘offensive’. The concept of free speech is utopian.

* (Authors: Dr Santhosh Mathew is an Associate Professor at UMISARC Centre for South Asian Studies, Pondicherry University ; Anita Elizabeth Mathew is a Research Scholar, Department of Politics and International Studies, Pondicherry University)

References

  • A brief history of student protests in India, Hindustan Times. Retrieved 29 October 2022.
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[This article was edited by Papri Sri Raman]

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