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Mainstream, Vol XLVIII, No 51, December 11, 2010

Free Speech in the History of Ideas

Sunday 12 December 2010, by Meher Engineer

Preamble

“Indian historians have forgotten the history of ideas.” The claim appeared as the headline of a recent newspaper article.1 Add it to your worry-list if you will, but do not forget as you do that similar claims can be made, with as much force, about many of the country’s civil and political societies. The frequent rows that erupt over “seditious speech” make that obvious.

Seditious Speech in India

LOTS of people make such speeches, without any- one saying anything. But political parties go ballistic with excitement when a Geelani, or a Roy, or a Varavara Rao makes one, and sections of the media devote page after page of newsprint, and hour upon hour of broadcast time to “debate the issue”. The resultant frenzy, whether or not it is manufactured, provokes groups of otherwise quiet citizens to outbursts of rage.

To what extent are the excitement, the pages, the hours and the outrage informed by the long history of seditious speech? No one cares to ask. To ask is to risk being ignored. Or shouted down.

Yet, things were not always so. In 1951, for example, when the country’s Constitution was first amended, it was amended, partly, because the Courts had shot down,2

• a ban that the Madras Government had imposed on the Leftist magazine, Crossroads, for being too critical of the Central Government, and,

• an Order, demanding that the Rightwing RSS magazine, Organiser, submit all communal matters and materials related to Pakistan for scrutiny to the office of the Chief Commissioner, Delhi.

The amendment imposed “reasonable restrictions” on the right to free speech. The right was unrestricted in the original document, in Article 19 (1) (a). The restrictions would apply to ‘public order’ and ‘relations with friendly states’, which includes pretty much everything human under the sun.

That, it was felt, would take care of the problems that the Courts had raised, and rightly so for two reasons, because the Constitution nowhere defines what is and is not “reasonable”, and because a citizen’s use of reason is, in no way, inferior to any legislator’s use of it.

Nevertheless, the amendment failed in one significant way. It did not touch Section 124A of the Indian Penal Code, which refers to sedition, even though Jawaharlal Nehru, the country’s first Prime Minister, called the provisions in that Section “highly objectionable and obnoxious“,3, and even promised to do away with them. The promise was not kept, and Section 124A retains its original character till today.

And what a today it is, when many claim to treasure free speech but few bother to ask how a speech becomes seditious on the say so of a political party, or a section of the media, or a group of outraged citizen’s. Do they think that our political parties, bogged down as they are in the daily pursuit of power and privilege, have evolved beyond error? That the Indian media is not hostage to deadlines and advertisements, or that the sections within it that are busy mortgaging themselves, to the hilt, to the “paid news” mafia, can even afford to have interests beyond more income and better TRP ratings? How do they distinguish between genuine outrage and playing to the gallery? Since when has genuine outrage become sufficient reason for trial and punishment? Is the state competent to decide when? Should citizens grant the state the power to decide on their behalf, when it does?

Let them look at history, here and elsewhere, that might enlighten them.

Free Speech in 20th Century France, the Faurisson Affair

CHARLES FAURISSON, a Professor of Literature in France, printed pamphlets that questioned the existence of Nazi gas chambers. France’s Fifth Republic responded by refusing to protect him from violent assault. Then it suspended him. Then it tried him. Finally, it condemned him, for falsifying history!

A mountain of evidence made Faurisson’s claim false. But, nothing in that evidence proves that he lied. Even more, if he claimed to genuinely believe that the gas chambers did not exist, who could disprove that? But the Fifth Republic set itself above such simple thinking. It was competent to determine historical truth, and competent to punish deviations from it. Compared to it, Faurisson emerges as a crank at best, and a fool at worst. But not as a criminal.

Noam Chomsky, who wrote about the Faurisson affair in 1980,4 denounced the Jewish terrorists who beat Faurisson up, saying that they beat him “practically to death”, and also denounced the French state along with the Frenchmen who joined the State in condemning Faurisson, saying: “Among people who have learned something from the 18th century (say, Voltaire) it is a truism, hardly deserving discussion, that the defence of the right of free expression is not restricted to ideas one approves of, and that it is precisely in the case of ideas found most offensive that these rights must be most vigorously defended. Advocacy of the right to express ideas that are generally approved is, quite obviously, a matter of no significance.”

Free Speech in 17th Century England

MOVE from contemporary France to 17th Century England, and look at the movement against censorship that erupted there in the middle of that Century. The movement shook England’s polity and succeeded in getting John Milton’s support. The support was lucid and brilliant, both in the use of words and in the thinking behind those words.

Try beating, “Give me the liberty to know, to utter, to argue according to conscience, above all liberties”, for exmple. The “according to conscience” clause in it would have reminded people that lying and saying a wrong thing were different things. Thus reminded, they would be open to the argument that you cannot exclude the right to false speech from the right to free speech without also rendering the latter right worthless.

The history of free speech records few instances of arguments that are as clear and consistent. But it also records that, infrequent as those instances were, the freedom that the press enjoys today lies in them, and in the struggles that they were part of.

Which doesn’t say that Milton’s arguments were invariably praiseworthy. They weren’t. When he advocated restrictions on free speech, for example, he said: “I mean not tolerated popery, and open superstition, which, as it extirpates all religions and civil supremacies, so itself should be extirpate, provided first that all charitable and compassionate means be used to win and regain the weak and the misled.…”

What drove him to send popery and open superstition to the Badlands of Speech? Two reasons, both of them connected to the proper Protestant that he was, may have done so. The belief that no one could come between a man and his God, was one. Fear of eternal punish-ment, in case Milton failed to obey his God’s commandments, was the other.

Religious conviction had displaced rhetorical brilliance. Milton did not ban what he disliked. He banned what his God had commanded. Substitute “sedition” for “popery” and “State” for “God” and we are in India today.

In Today’s Indian Republic

MY last example comes from the State of Gujarat, that haven of freedom, Hindutva style. The Delhi edition of The Hindu,5 records that “…the editor of an eveninger published from Surat was arrested on Tuesday for allegedly using abusive language against the Gujarat Chief Minister, Narendra Modi, and various government and other officials for their failure in handling the recent floods in the diamond city”.

According to the police, the editor (Manoj Shinde) “...attacked several government and municipal corporation officials and BJP leaders, including Narendra Modi, for mishandling the release of water from the Ukai dam resulting in the flooding of the city and colossal loss to the people”.6 The Express News Service (see, 6) quotes an initial estimate of the loss due to the wrongful release of flood waters from the Ukai dam: Rs 21,000 crores.

For those “heinous crimes“, Shinde was picked up and charged him with anti-national activities, for example, “instigating people against a duly elected government” and “defaming senior officials and executives”. Lacking the money for a legal fight, he spent 39 days in jail, only to be released, after apologising!

A Gujarat Garima Award for Outstanding Newspaper Editor would have been his if he had blamed Pakistan’s ISI for the flood. Instead, he was booked under eight sections of the Indian Penal Code: Section 124A (the familiar sedition article), Sections 292, 293, 294(b) (all dealing with obscene publications), Section 500 (defama-tion), Section 501 (printing an aggravating matter against a Union Territory, or a Chief Minister) and Sections 502 and 505 (1) (circulating false statements against the public peace).

In so punishing him, the Gujarat Government sent a simple message to those who it was sworn to protect: “Beware of speaking out against a State actor, especially when the man sees himself as the State Incarnate.”

Pope Pius IX had sent a similarly plain message to his Roman Catholic flock, in the 18th Century, by saying: “Before I was Pope I believed in papal infallibility. Now, I feel it.“ Bhimrao Ambedkar used the message in his essay on “Ranade, Gandhi and Jinnah”, to make two points:

• that Pius’ attitude was “exactly the attitude of the two leaders whom Providence—may I say in His unguarded moments—has appointed to lead us,” and,

• that “the feeling of supremacy and infallibility is strengthened by the Press”,
neither of which seems irrelevant in today’s India.

The State and its Citizens

LOOK at the Indian citizen. Political parties seek his vote and reserve the right to make naked threats in case he expresses a view that they dislike. He elects governments that crown him with new, draconian laws that squash his right to free speech. What is the history of ideas to him, other than a thing of straw? Less useful than a stone, perhaps?

Turn to the Indian state. Did it, when it considered making itself a judge of “seditious speech“, think of studying the history of ideas in order to decide whether it ought to follow Milton and France rather than Voltaire and Chomsky? The idea seems absurd. A far simpler way was open to it: it could interpret the “reasonable restrictions” clause in the Constitu-tion as it wished to, and invoke impunity.

Think of the provisions in the Unlawful Activities (Prevention) Act. Imagine legislating them, without impunity. Impunity provides a state that prizes its own security above all else, with all that it needs.

History, again

HISTORY forces contradictory fates upon citizens living in a democracy:

• a state’s impunity lasts only as long as the State lasts (example, Saddam Hussein’s political career), and,

• it doesn’t die when a state dies, as the next set of power holders grabs it (example, today‘s Iraq).

• It is inherited, as kingship is inherited in Great Britain.

The fates walk, hand in hand, alternately giving hope to troubled peoples and scotching it. They stalk all nations that claim to be governed by, for and of the people. Freedom is their target.

On the other hand, history also contains very different things, like:

• “The free man thinks of nothing less than death” (Baruch Espinoza), and,

• “It seems unlikely that oppression by one’s people is somehow rather sweet and that by an alien race especially bitter” (Bankim Chandra Chattopadhyay).
The first proposition, because it is easily extended to a collection of free people, encourages us to believe that a free people will have no use for impunity.
The second one might prompt Indians to guess what Bankim Chandra would say about the Indian Republic if he were alive. If that happens, and if a sufficient number of them come up with something like “a farce, with a fancy name, that’s all”, then the country is not, entirely, a hopeless case.

REFERENCES

1. The Pioneer, October 29, 2010.

2. See The Hoot, “How sedition crept into the framing of the Constitution”, by Siddarth Narraian, for example. (http://thehoot.org/web/freetracker/story.php?storyid= 187&sectionId=62)

3. Nehru said: “Take again Section 124-A of the Indian Penal Code. Now so far as I am concerned that particular Section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in anv body of laws that we might pass. The sooner we get rid of it the better. We might deal with that matter in other ways, in more limited ways, as every other country does but that particular thing, as it is, should have no place, because all of us have had enough experience of it in a variety of ways and apart from the logic of the situation, our urges are against it.”

4. Noam Chomsky, “Some elementary comments on the right to freedom of expression“ (http://www.chomsky.info/articles/19801011.htm)

5. “Editor of Surat eveninger arrested”, The Hindu, August 30, 2006, (http://www.hindu.com/2006/08/30/stories/2006083008901200.htm)

6. “Writing as Sedition“, Subhash Gatade. (http://www.countercurrents.org/ind-gatade060906.htm)

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