The Debate Around Freedom of Expression: Need for Deliberative Democracy in India

by Tamanna Khosla

The right to freedom of speech as one of the basic human rights is enshrined in the main international human rights documents. Freedom of speech (synonym of freedom of expression) is an inseparable element of a democratic society. Whether the society is democratic or not can be defined by the factor of independent press and mass media. The Constitution of India provides the right to freedom given in Articles 19, 20, 21 and 22, with the view to guaranteeing individual rights that were considered vital by the framers of the Constitution.

Article 19 of the Universal Declaration of Human Rights (UDHR) lays down: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

Article 10 of the European Convention on Human Rights (ECHR) maintains: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.”

However, certain areas need to be discussed here. The first issue which must be looked into is whether this right is absolute. There is a difference of opinion amongst public intellectuals. Certain scholars like Pratap Bhanu Mehta believe that the right is not absolute. For example, according to him, some versions of hate speech will need to be prohibited in any democracy. Certain kinds of violent pornography could also be regulated. Of course, at one level, this will have to be determined on a case-by-case basis. But writers like Salman Rushdie believe it is absolute in nature. According to him, countries like the US would emphasise on the need for absolute freedom of expression. This is the great strength of the First Amendment, that is, allowing even hateful things to be said, it helps you to see where the enemy is, it assists you to demolish arguments. There is also the powerful argument which is that you do not remove from society terrible ideas by banning them. You in fact increase their power by giving them the power of taboo.

Thus while Mehta believes in case-to-case analysis, Rushdie belives in absoluteness of the freedom.

Lately in India democracy is under stress.

Be it certain political groups against Valentine’s Day celebration, Taslima Nasreen’s visa issue, Rushdie’s attending the Jaipur literary fest, M.F. Hussain’s paintings, the Bajrang Dal being against nude painting in Delhi, ban on women’s rock band in Kashmir or ban of Vishwaroopam in certain States. All of them hit out at the democracy’s basic sensibilities. There is a sense of anarchy prevailing in Indian democracy. Secularism, it can be easily said, has been understood the other way round. While it is fine to consider respect for all communities, one of the ways we understand secularism is also as the state being neutral in religious matters, the Church and state being separate. This, however, is not true of secularism’s definition in India. But surely the state in India can make positive interventions. The state needs to reconcile the right of expression with the right of commu-nities to get hurt. One must debate, for example, whether an individual writer’s right to be victimised by fringe groups needs to be protected or the right of communities to get hurt on issues such as a cartoon of the Prophet or a movie like Innocent Muslim needs to be defended.

Here one must understand the base of one’s democracy. In the US the right to expression is defended in an absolutist sense; this is because individual rights are the basic feature of the US Constitution. But in India despite the defence of individual rights, it also gives the right to culture to its religious communities. Thus when there is a contradiction between the individual right to freedom and right to culture, the political climate in the country has defended the right to culture. Multiculturalism as against liberalism is being defended in our country. While India is moving towards economic liberalism the contradictory issue is that it is scared to liberalise its public space. Countries like China have gagged the voice of democracy and also the right of minorities like Tibet’s residents. India too is blamed for muzzling the voice of the people of Kashmir, or trampling the rights of people in the North-East. It has been blamed for inadequate understanding of the Maoist uprising and using violence against them. A democracy cannot function if the voice of any individual or group is suppressed.

What one needs to understand is that India must cultivate an environment of deliberation amongst its different religious communities. When some members of the AIMPLB called Rushdie for debate, that could be seen as the sign of a growing democracy. Any issue can be tackled when mistrust is removed from the mindset of the conservative sections as well as writers and artists who ask for free speech. We need to distinguish ourselves from the religious forces which terrorise the masses to behave in certain ways, be they Muslim, Hindu, Christian or any other force. Otherwise it will be a very sad state for democracy in India.

In a deliberative democracy people need to reason out to each other for the respective positions they take and an understanding needs to be evolved amongst them. For example, if it is the issue of a painting or a novel, then the state could accommodate deliberations between the painter or the writer and the groups claiming to be hurt by the content of the piece of work. Thus both could be made to understand their specific viewpoints. For instance, Rushdie pointed out several times that people who criticised him had themselves never read his novel! Hence the conflict is largely because of misunderstanding between groups or individuals. This can be deflated by the development of trust and mutual understanding between them.

Democracy thus is quintessentially a manner of collective decision-making in which everyone participates on an equal footing and no one’s interest or feeling gets hurt. Deliberation thus believes that conflicts are best addressed and provisionally resolved by actual deliberation, the give and take of argument that is respectful of reasonable differences. The deliberation recom-mended here is not speculative but oriented towards decision-making. Deliberation calls upon people to acknowledge the moral staus of their own positions and also to acknowledge the moral status of those reasonable positions with which they disagree. When there is as yet no universally justified resolution, the people who fundamentally disagree may insist as a matter of social justice that conflicting pers-pectives be fully considered by a deliberative process of decision-making. Democracies like India can aid deliberation between diverging groups. Our moral understanding of many side-issues like articles, movies, legalising abortion is furthered by discussion with people whom we respectfully disagree, especially when these people have cultural identities different from our own.

But India is not a deliberative democracy right now because of the sheer size of our democracy. Thus the democracies in India and the US are at different levels. While the US can defend even the Ku Klux Clan’s right to hate speech, the same might be difficult in a culturally plural country like India, which has seen animosities between majorities and minorities. India still has to wait for a level of democracy where free speech won’t hurt sentiments on religious issues and where religious groups are suspicious of each other’s concern. The recent case of Togadia and Owaisi’s hate speeches reflect that the state needed to enter the arena to reduce further aggravation of the situation. However, saying this does not mean that the individual rights of citizens need not be protected. While cultural rights are important, these rights should not be allowed to relegate individual rights to the periphery. For example, any kind of violent pornography needs to be regulated. Some kinds of art must be regulated. But that doesn’t mean that these should be banned. Individuals have the right to be offended and criticise an article, a novel, movie or any work of art but banning them in a democracy is no solution. It would make India no different from China or any of those Islamic countries which have strict regulation of the internet, novels or the kind of art being produced.

Thus if India needs to progress as a democracy, we have to see how the right to expression of the individual and the right of the cultures can be reconciled. And that would surely require dialogue in society on how far the freedom of expression should go. Artists, writers, creative experts on the one hand and the orthodox sections of different communities on the other have to seriously deliberate on this issue for the future of democracy in this country.