Free Speech: A Matter of Debate | Suranjita Ray

The recent news headlines on the display of the book ‘The Satanic Verses’ by Salman Rushdie - as the hot new item at Bahrisons Booksellers at Khan Market in Delhi remind us of 1988, when the book was banned in India by the Rajiv Gandhi government. The renewed sale of the book after 36 years has been strongly condemned by some Muslim organisations. The General Secretary of the All India Shia Personal Law Board, Maulana Yasood Abbas, has urged the government at the centre to uphold the ban (The Hindu, 24 December, 2024). Similar sentiments have been echoed by Maulana Shahabuddin Razvi Bareilvi, the president of the All India Muslim Jamaat (Asian News International, 25 December, 2024). They have appealed to the central government to reinstate the ban on it as it hurts the sentiments of a large section of the population. The sale of the book poses a threat to the social and religious harmony of the society, which goes against the spirit of the Constitution of India.

It reminds us of how the Muslims condemned the book as blasphemous, and protests broke out against Salman Rushdie in UK and abroad in 1988. The book containing an unflattering depiction of a character modelled on Prophet Mohammed was taken as offensive to the sensibilities of a group (see also Smits, 2009: 155). Ayatollah Khomeini of Iran issued a fatwa in 1989, calling for the death of Rushdie and his publishers. While the political leaders and press in Britain and abroad had strongly condemned the protests that resulted in violence, they defended the right to publish the book. Debates on the blasphemy laws in Britain that protected Christianity but no other religion led to its rectification in 2006 when the Racial and Religious Hatred Act was passed, making the intentional incitement of religious hatred an offence (Parekh, 1990: 57 cited in Smits, 2009). It was to be interpreted in the light of Human Rights Act, 1998, that guaranteed freedom of expression (ibid).
Can we defend individual freedom of speech against a common good, social values, or social cohesion? Such speeches have become most controversial in the past, reflecting deeper social anxieties and divides across multicultural societies. Questions are raised regarding the need for balancing free speech with concerns to promote equality, democracy, and multiculturalism. In the recent world order, recognition of cultural pluralism and cultural rights of the minorities in particular, including that of the immigrants, has become important. We have seen the rise of xenophobia and race and ethnicity related tensions during the last few decades in the context of racial and ethnic diversity and large immigrant populations.

Free Speech

Freedom of speech is widely accepted as an essential principle of democracies. However, the content of speech has always remained a contested issue as it has widespread implications. While free speech cannot be suppressed, no speech that provokes hatred, resentment, or vilifies particular sections of society based on their religion, caste, class, race, ethnicity, gender, or sexual orientation can be accepted. Though no speech can be interpreted without referring to the context in which it is made, many times, interpretations are beyond the context. The content is also interpreted past the intentions of the speaker. At times, the implications of the speech are unintended. While the interpretations are and have always remained predominantly subjective, it is who is speaking that has an impact. It impacts differently depending on the position and status of the speaker. The speech of the powerful can be more influential. Invariably, it is the powerless who become vulnerable to misbehaviour, taunts, vilification, discrimination, hatred, and violence caused by offensive speech. Most of the time while violence is condemned, questions regarding freedom of speech as an absolute right have raised larger issues. There is a consensus on the need to regulate all hate speech as it is offensive. However, since all offensive speech does not incite hate, the need for its regulation has generated debates.
While we have seen how the dissenting views are rarely heard and a convenient strategy to promptly use sedition charges against students, journalists, poets, artists, writers, activists, comedians, and filmmakers has seen obscurantist politics of denying dissenting voices any space in democratic polity, regulating offensive speech to foster harmonious social relations in a pluralist and multicultural society has often remained sluggish and contentious. Offensive speech has remained a matter of debate not only because of the interpretative understanding of the content of speech but also the deeper conflicts in multicultural societies.

Regulating Offensive Speech

While legislations to guarantee freedom of speech and expression that ensure fundamental liberty and equality in democracies are enlisted, laws against vilification or incitement to hatred that allow banning of offensive speech in practice are rare. Though several countries declare offensive speech advocating genocide or inciting hatred against any particular group based on religion, race, ethnicity, colour, or sexual orientation as a criminal offence under the criminal code, many decisions concerning restrictions on offensive speech centre on the decisions of courts and legal bodies constituted to investigate its implications. Such decisions have raised larger concerns regarding the authority of the state to punish inflammatory speech until and unless it incites lawlessness and disorder. While speeches that deal with matters of public concern are restricted to sustain law and order, the complexities and diversities of conflicts between individual rights and collective interest or public good have always remained a matter of concern and debate in a democracy.

Though offensive speech need not always result in violence and disorder, our feelings can be hurt without hurt being done to ourselves. Feminist theorists believe that words can cause as much damage as action. Catherine MacKinnon argues that wherever pornography is freely available, women internalise male abuse and live in fear that legitimises sexual exploitation, sexual abuse, violence, and patriarchal culture (cited in Smits, 2009). The everyday experiences of victims of hate propaganda or assaultive speech that can cause psychological trauma enable us to understand the situations where the entire community is made to feel inferior and alienated. Understanding the experiences of physiological symptoms and emotional distress ranging from fear in the gut to increasing pulse rate, difficulty in breathing, nightmares and stress disorders, hypertension, and suicide due to racist behaviour, attitudes, and speeches is important (race theorist Matsuda, 1993, cited in Smits, 2009). Therefore, concerns are raised to regulate offensive speech even when it does not directly lead to violence and lawlessness in the society.

Several laws to protect human rights restrict incitement to racial hatred as an offence, such as the International Convention on Elimination of all forms of Racial Discrimination, 1969, which states under Article 4 to declare an offence, all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also provision of any assistance to ethnic activities, including financing thereof; the Race Relations Act of 1976, Public Order Act of 1986 in UK, and the Racial and Religious Tolerance Act, 2001, in Victoria. In Canada, freedom of speech is protected under Charter of Rights and Freedoms, 1982. In 2007, the European Union members agreed to make incitement to hatred or violence against a person on the basis of race, ethnicity, or colour a criminal offence across the EU. In India, all citizens are guaranteed the right to freedom of speech and expression under Article 19 but are subject to ‘reasonable restrictions’ for preserving inter alia public order, decency, or morality. Section 153A of the Indian Penal Code states that whoever (a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, . . . shall be punished with imprisonment which may extend to three years, or with fine, or with both. There are several cases in which the Supreme Court has found publishers, writers, speakers, and artists guilty of publishing cartoons, articles, and books which insult religious beliefs and sentiments, and they have been fined. Alongside there are several books that have been banned. Despite these laws, it is difficult to balance between liberty and equality.

The Conflict Between Liberty and Equality

The majority of the supporters of modern liberalism believe that the freedom of speech is critical for individual freedom, autonomy, self-determination, and social progress. They believe that freedom of expression is one basic liberty that needs to be guaranteed equally to all to ensure justice in a democracy. Therefore, silencing an opinion is to deprive mankind of their right and liberty to voice their thoughts and beliefs. Opinions that are true need to be expressed. Even opinions which are untrue or partially true need to be expressed, as they lead to public discussions and debates. It is the contradictory, alternative, and even rival viewpoints that contribute to arriving at the truth. Though post-modernists believe that there is no final truth which can be discovered, and argue that truth is a construct, it is freedom of speech that can contribute towards rejecting or disproving bigotries, prejudices, and myths which dominate society. Civil libertarians believe that free speech protects individuals, in particular the minorities who are effectively silenced due to domination by the majority. Democracy that subverts or undermines deliberation can never be strengthened.

However, unlike free speech absolutists who support freedom of speech regardless of the moral value, communitarians believe in prioritising the moral values of the community and not rights of the individual. They believe that what is politically right should also be morally good. This raises a larger concern about freedom of speech and if it should be an absolute right without restrictions. Supporters of regulating offensive speech argue that low-value speech that incites hatred and violence needs to be restrained even if it leads to truth, individual freedom, and autonomy. Autonomy, they argue, is achieved only when the higher self of an individual is in control of the lower self. Freedom of speech can be fundamental but not absolute. There have been demands for speech codes that should regulate and restrict speech that tarnishes, defames, victimises, stigmatises, or leads to hostility against individuals, groups or communities.

Summing Up

Can freedom of speech be viewed as the absence of restraint or regulation? Does regulating offensive speech mean unfreedom? In the majority of the cases, the controversy over offensive speech is part of a deeper divide and debate about cultural pluralism. Free speech cannot be dogmatic and divorced from the complexities of the real world. In the current conjuncture, free speech will always play a more central role in the pluralist ethos of democracy. As it is difficult to escape subjective reflections while understanding what is apparently objective, innumerable interpretative understandings of the speech become critical.

Different interpretations are essentially centred on our understanding of the concept of human freedom. It depends on how one/we place oneself/ourselves in the narratives of free speech. In a long history of ideological debate, the project of understanding free speech is an attempt to try to grasp the different impacts it has on us. However, the more we analyse the content of the speech, the more we realise that there is no neutral analysis, as the concept of freedom itself is deeply normative, extremely indeterminate, and significantly implicated. This is precisely one of the valid reasons what makes and will continue to make the idea and practice of free speech a matter of debate.

(Author: Suranjita Ray, teaches Political Science in Daulat Ram College, University of Delhi. Email: suranjitaray[at]dr.du.ac.in )

Reference

• ‘Ban should continue on ’The Satanic Verses’, say Islamic scholars (2024), in Asian News International, https://www.aninews.in/news/national/general-news/ban-should-continue-on-the-satanic-verses-say-islamic- scholars20241225234510, 25 December, visited on 3 January 2025.
• Smits, Katherine (2009), ‘Should Offensive Speech be Regulated? ‘in Applying Political Theory - Issues and Debates, Palgrave Macmillan, New York.
• ‘Muslim organisations express outrage over renewed sale of Salman Rushdie’s ‘The Satanic Verses’ in India, (2024), in The Hindu, 24 December, https://www.thehindu.com/news, visited on 3 January 2025.