Of Lumpen Laws and Egg Shell Democracies

An often ignored virtue in the debate on free speech and censorship is the virtue of listening. The time has come to admit that freedom of speech and expression is highly overrated without an equal commitment to tolerant listening. This is particularly true when one lives in an eggshell democracy where every step we take, and every word we utter has to be carefully measured against the potential ‘hurt’ that can be caused. The true test of a democracy lies not in the amount of speech that it willing to grants its citizens, but equally in the amount of uncomfortable speech that it is willing to listen to. As Azra Tabassum, a young media practitioner in Delhi says “Fearless Speech demands fearless listening”.

Chandramohan has paid a heavy price for his speech but the real casualty of the entire affair in MS University, Vadodara and other recurring incidents of speech phobia, will be on our collective ability to listen fearlessly. Chandramohan has been accused of violating the ‘hate speech’ laws of this country. In particular he has been accused of promoting enmity between different groups of the country on the grounds of religion (Sec. 153A of the IPC), Injuring or defiling place of worship with intent to insult the religion of any class (Sec. 295) and finally of deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs (Sec. 295A). While one could argue about whether or not there has been a correct application of law in his case, the larger issue that needs to be put on trial is the existence of hate speech laws as they currently exist.

The legislative intention behind hate speech laws seem to be on a permanent collision course with their real effects. Rather than protecting minorities from the vitriolic outbursts of Ms. Praveen Togadia and Co., the law has been consistently used by an intolerant majority whose sentiments are easily hurt. The use of hate speech laws as a harassment device demands that we seriously rethink the scope and application of these provisions. The current scope of hate speech laws in India are far too wide and subjective. It would be difficult to identify a single work of art, a film or any book which does not have the possibility of hurting or offending someone. In the US they have moved from a subjective test to a more objective criteria which depends on the determination of whether there was a clear and present danger posed by the speech act in question.

If one were to ban all speech that offends our delicate sentiments, then we would be left with precious little (all comedies would certainly have to go). The present law privileges the subjective feeling of hurt or outrage that someone may feel about an expressive or artistic statement and enables the person, like the proverbial spoilt brat to run to daddy (in this case the police), to complain. It matters very little that the brat may have over reacted or was even making a complaint out of maliciousness.

And here is where the catch lies. Given the rather flimsy legal grounds on which most complaints are made, it is unlikely that the complaint will stand the test for law. But it does not really matter since the real punishment is the procedure itself. The humiliating experience of being arrested, the monetary and emotional costs of fighting the case and finally the amount of time and energy that is spent is indeed the greatest punishment available under hate speech laws. And it does not matter whether you are convicted or acquitted, since the law works in a way that assumes you to be guilty.

Its efficacy as a harassment tool is unmatched and the fact that a student can be arrested for an art work which was meant to be a part of a college exhibition testifies to its draconian status. In these days of encounters it could be said that Sections 153A, 295 and 295A of the IPC are the cultural equivalents of the Armed Forces (Special Powers) Act, in which speech can be killed in fake encounters with impunity. The arrest of Chandramohan also reveals the wide ambit of what may be brought within the ambit of provocative public expression, and the question we need to ask ourselves is whether the mere display of work in a place which the public has access to can be considered as an act of incitement. If this is the case, then all libraries, galleries and theatres will have to ready themselves for arbitrary attacks.

Finally, it is worth thinking about the impact that hate speech laws can have on creative and artistic expression. The role of art does not lie in the expression of candy floss statements of affirmation or else all that we will have for Art will be poems that one can find inside Archies greeting cards. The role of art is to create provocations, to incite disagreement and to express opinions which may be uncomfortable or even insulting. Free Speech in India has been held ransom for too long by our imagined fears of the chaos and anarchy that speech can produce, but it is perhaps worthwhile recalling Eliot’s statement that genuine blasphemy is the product of a partial belief, it is as unavailable to the complete atheist as it is to the complete believer. The only way ahead is by rethinking our hate speech laws so that we can all get hearing aids to assist in our ability to speak and listen fearlessly.