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Free Speech in an Age of Violence
The Challenge of Non-governmental Suppression
Ajai Sahni*
Words
are deeds.1
In April this year, the Srinagar station
of All India Radio (AIR) stopped the broadcast of an innocuous, though
very popular, programme based on Hindi film songs, Geet Gata Chal,
following threats by a militant group active in the Kashmir Valley.
The decision was officially conceded to have been taken under pressure
from certain quarters. It came close at the heels of a
threat-notice published in a local Urdu daily by a pro-Pakistan militant
group that claimed that the programme offended against Kashmiri
culture.2
From a limited administrative perspective,
the decision is not unreasonable, particularly against the background
of highly focused terrorist violence against media professionals who
offend extremist sensibilities. In February 1999, three cable television
entrepreneurs were shot in their legs as a "warning"3
against their failure to follow the extremists Talibanised
code of conduct.4
There have, over the past decade, been several attacks many
of them fatal against media personnel, both in the private
and state-owned media.
Such trends have not been restricted
to the State of Jammu & Kashmir (J&K) alone. One may recall
the chilling effect of the kidnap and gruesome murder of M. L. Manchanda,
station director of AIR at Patiala in May 1992. Manchanda was decapitated,
his torso thrown in Patiala, and his head, miles away, in Ambala.
The killing, claimed by the Babbar Khalsa, was an unprovoked, crude
and effective demonstration of the terrorists determination
to impose their code of conduct on the governments
broadcast agencies. And despite the fact that the perpetrators met
their end in police encounters within a few days,5
the retreat, not only of the official media, but of the Press in general,
was complete. Every element of the "Panthic code of conduct"
was, thereafter, "accepted by the official media, AIR and Doordarshan,
as unquestioningly as by the national and regional newspapers (with
a single isolated exception)".6
The validity of the limited administrative perspective
that contributed to the AIR decision is compounded by the fact that
the content of the speech acts that are sacrificed by such a withdrawal
may not, on the face of it, appear to be worth the risks or the expense
that would be involved in opposing the militants demands. A programme
of Hindi film songs has little overt political value and there is a
large constituency, not only in Kashmir or among the terrorists, but
among the general public all over India, that regards the increasing
prurience of their lyrics and the coarseness of their execution with
great disfavour. In view of the crisis of the low intensity proxy war
in Kashmir, to make an issue out of something quite so frivolous
may seem incongruous.7
This argument, however, is defeated by
the very context within which it is stated, because the demand to shut
down a particular radio programme is only one element in a larger campaign
to "set the Valleys cultural agenda in their (the terrorists)
own narrow and sectarian terms."8
This agenda includes the prescription of a "dress code" for
women, fatwas against cinemas, as well as against the consumption
and sale of liquor, and a rigid code of social and religious practice,
each of which has been, from time to time, imposed through violence
or the threat of violence.
Terrorist-imposed restrictions on the
freedom of speech, moreover, are part of a continuum that comprehends
acts of criminal intimidation and incitement to crime, and that often
culminates in crime. The Manchanda-killing in Punjab was intended to
inflict a specific Panthic code for the electronic media that, at its
most innocuous, required women newsreaders and anchors on television
to cover their heads; banned the words terrorist or atankvadi
(in Punjabi) and their derogatory equivalents and sought an end to all
non-Punjabi language programming. But they also demanded that highly
subversive propaganda material be carried on the official media
without amendment or censorship and sought a number of administrative
changes that no democratic and secular government could accept.9
These demands were elements in a larger and more general "Press
Code" that required mandatory publication by all newspapers of
the press releases and advertisements sent in by terrorist organisations
(and this was faithfully done even where the contents were highly subversive
and amounted to criminal incitement and intimidation). At the same time,
a Panthic Code of general conduct was also implemented in the State
through bullet and bomb.10
The dilemma, in the Srinagar AIR case,
consequently, goes far beyond the question of discontinuing a single,
apparently zero value, programme. As one commentator notes,
"the fight against militancy was not so much about guns as about
the fundamentalist and obscurantist world-view that it represented."11
And it is this worldview that is inflicted, through violence or the
threat of violence, on large populations who are otherwise unwilling
to accept the fundamentalist perversion of their culture. By retreating
in the face of the threat of violence, the state abandons the very constituency
that makes democracy a possibility, leaving them voiceless and vulnerable
to coercion.
Nor indeed, in our age, is the problem restricted to
the fight against militancy. The assault against the freedom of expression
has, in these times, taken on a peculiar virulence and a character with
which conventional executive and judicial wisdom has rarely been confronted.
The traditional challenge to the freedom of speech
has usually comes from a repressive state that seeks to silence criticism,
or to suppress ideas that are not approved of by the government of the
day, the ruling elite, or by the moral majority. In this regard, there
is a long tradition of jurisprudence that has set the bounds of the
freedom of expression far from the core of politically valuable speech,
and fairly close to the limits of licence. An oft-quoted dictum, both
in the US and Indian jurisprudence, is that
A function of free speech under our system of government is to
invite dispute. It may indeed best serve its high purposes when
it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger. Speech
is often provocative and challenging. It may strike at prejudices
and preconceptions and have profound unsettling effects as it presses
for acceptance of an idea.
This is why freedom of speech
is
protected against censorship
or punishment
There is no room under our Constitution for a
more restrictive view. For the alternative would lead to standardisation
of ideas either by legislatures, courts, or dominant political or
community groups. (Emphasis added)12
By and large, restrictions on the freedom of speech
have, consequently, been defined in the interest of public order since
"opinions lose their immunity when the circumstances in which they
are expressed are such as to constitute their expression a positive
instigation to some mischievous act."13
Such an approach, however, fails to meet the exigencies
of an increasing number of cases where the threat to peace is not caused
by particular speech acts that are abusive, insulting or inciting
to violence, but arises out of a response to the voicing of certain
ideas that may be disapproved of by specific, often small, vocal and
potentially violent groups. Or, in a lesser avatar, cases in
which restrictions on speech are sought to be imposed on grounds that
particular speech acts would hurt the sentiments of particular
communal, caste, regional or other special interest groups.
The furore over the film Fire,
which explored the development of a lesbian relationship within the
context of a conservative Indian family, is a case in point. This perfectly
pedestrian film was transmuted by the Shiv Senas violent protests
into an icon of the freedom of expression standing against a groundswell
of bigotry and intolerance. Significantly, for the chauvinistic groups
who attacked the film, the issue was not obscenity, but
Indian culture. One of the foot soldiers of the Bharatiya
Janata Party (BJP), which co-operated with the Shiv Sena in the anti-Fire
protests, saw evidence of an "Islamic conspiracy" in the portrayal
of one of the main characters of the film, Radha, by a Muslim actress.14
The then Chief Minister of Maharashtra lauded the violence of his Shiv
Sainiks, declaring, "What they have done is correct. The film is
against Indian culture."15
The State of Maharashtra has, of course,
played a leading role in the "public censorship" of ideas
that are deemed to offend against the so-called ideology of Hindutva
ever since the BJP-Shiv Sena combine came into power there. There has
been a sustained and violent campaign, led by supporters of these two
parties and supported by the Vishwa Hindu Parishad, against artist M.F.
Hussains "offensive" portrayal of Hindu deities.16
Morality brigades have mushroomed, scrutinising, for instance, the lyrics
of songs to be played by the Australian band, Savage Garden; and demanding
a ban on Eric Claptons Cocaine on AIR a demand that
was immediately conceded.17
But the wave of bigotry goes well beyond the borders
of Maharashtra, and indeed, of common sense. Thus, we have the BJP
self-appointed votaries and defenders of Indias ancient culture
protesting against the representation, on the cover of a diary
issued by Delhi Tourism Development Corporation, of a well-known bronze
sculpture of a dancing girl dating back to the Indus Valley Civilisation.
The diary, on which hundreds of thousands of rupees had been spent,
was hastily withdrawn.18
Nor indeed, is the lunacy restricted to
the Hindu far-Right. The staging of a play (once again in Maharashtra),
Mee Nathuram Godse Bolte, which sought to represent the point
of view of Mahatma Gandhis assassin, was blocked by protests,
both of the leadership and the lumpen elements, of the secular,
liberal, democratic Congress
party.19
In Madhya Pradesh, the Chief Minister of the Congress-I-led government,
similarly, sought a ban on a book, Godses Murder and After,
by Gopal Godse, Nathuram Godses brother.20
Taking their cue from national political
parties, numberless social service and non-governmental
organisations and activists have also jumped on to the censorship bandwagon,
often using the Courts to further their ends and to derive the
publicity that is usually their predominant motive. A handful of examples
demonstrate the sheer sweep of such actions. In 1997, the Miss Tourism
International pageant was disrupted as a result of protests by a motley
group of some 200 activists of the Bharatiya Janata Mahila Morcha, who
barged into the hotel where the contestants were staying, and ransacked
the lobby during a rehearsal of the show. The
local administration simply withdrew permission for the show, and their
decision was upheld by the Andhra Pradesh High Court.21
Even more interestingly, two population and sex education programmes,
Balance Barabar and Kaam ki Baatein, produced by a Non-governmental
organisation (NGO), Population Service International, and Marie Stopes
Clinic, and aired on the extremely conservative AIR, were banned on
grounds of obscenity on a petition by another unknown defender
of public morality, the Azadi Bachao Andolan. The Magistrates
concern, however, obviously went well beyond obscenity, and sought to
impose a particular interpretation of public morality: "Balance
Barabar", he noted, "tilts heavily in favour of sexual
freedom in the guise of sexual information without caring for ethical
and moral standards. So is the case with Kaam ki Baatein."
The offending programmes answered public queries relating to common
sexual problems and apprehensions masturbation, homosexuality,
the use of Ayurvedic pills for safe sex, adultery, etc.22
A Delhi Court also restrained the telecast of a TV programme which featured
a pair of turbaned anchors who called themselves Tony Singh and Titoo
Singh as a result of a petition that claimed that the "feelings
of Sikhs in general have been deeply and badly injured."23
In Rajasthan, the Chief Justice of the High Court converted a letter
written by a school girl into a Public Interest Litigation against a
satellite television channel; the girl claimed she was frightened by
a horror show aired on the channel.24
Numerous such cases are brought up, from time to time, in provincial
courts, and their chilling effect on the freedom of expression is barely
noticed, as most such cases go unreported, or secure only passing mention
in the media. This impact is compounded many times over by other instances,
which do not even reach the Courts, but where intimidatory tactics are
used against individuals and groups who fail to conform to the ideas
and expectations of potentially-violent groups.25
Unfortunately, the subordinate judiciary has frequently
been more than willing to support claims of injured sectarian and moral
sensibilities, displaying little concern or awareness of the larger
context and purpose of the freedom of speech, or of the jurisprudence
established by superior courts in clear precedents. To the extent that
decisions of the subordinate courts in most such cases are seldom appealed
publishers, TV programmers, film-makers and artists simply want
to get on with life and are far from eager to remain mired in an interminable,
complex and often futile judicial process the actual limits on
the freedom of speech are ordinarily defined in these numerous, often
unnoticed, judicial orders. Indeed, many such cases end at the preliminary
stage itself, as producers and artists voluntary cut out the offending
portions of their productions in order to escape the pattern of punishment
by trial that has now become a fact of life in Indias sluggish
judicial system.
There has, of course, always been a large sphere of
intolerance in Indian society; but while it may not have diminished,
there is no reason to believe that it has grown. It has, however, shifted
in recent years from the periphery of the social and political stage
to its very influential centre. What has grown, as a result, is the
institutional tolerance of (specific categories of) intolerance, and
this is increasingly reflected in judicial and executive action.
The most significant impact of this regime of intolerance
and constraints on the freedom of speech is that it has tended to impose
a closure of debate on a wide range of issues deemed to be sensitive,
politically incorrect, or morally improper. Caste and religion, linguistic,
regional and cultural differences, gender and sexuality the free
discussion of controversial aspects of each of these has come under
progressively restrictive taboos, even as the entire public space has
been left free for obscurantism and bigotry.
We, thus, see the emergence of two opposing
dangers. In situations of extreme and widespread disturbance, the Courts
and the executive have expressed themselves through acts primarily of
omission in favour of the freedom of the most extreme speech, frequently
comprehending incitement to terrorist crimes and violence.26
In situations of peace, on the other hand, the institutions of the state
have tended to ally themselves with the intolerant, prohibiting speech
acts on the first pretext of an injury to sectarian sentiments
or standards of morality peculiar to small and volatile groups. The
violent exposition of the doctrines of communal and sectarian hatred,
and the suppression of certain categories of speech that are disapproved
of by volatile elements, has, thus, been encouraged by a policy of increasing
licence extended selectively to those who back their speech acts, or
their acts of censorship, with violence.
This, however, is not the consequence of the jurisprudence
evolved in the superior judiciary, but of the practice inflicted in
numberless and unreported often uncontested decisions
that reflect little more than the personal predilections and prejudices
of individual members of the subordinate judiciary and the provincial
administration. These decisions tend to ignore the distinction between
a threat to peace that is caused by particular speech acts that
are threatening, abusive, insulting, or inciting to violence, and a
threat to peace that arises out of an audience response
to the voicing of unpopular ideas, what is described in
legal literature as the "hecklers veto".
Clearly, if the purpose of free speech is "to
invite dispute",27 and if even unpopular
ideas are to be allowed expression, we must come to terms with the possibility
of attempts by militant groups to violently disrupt their public espousal.
If a danger to public order alone obsesses the mind of enforcement agencies,
then, if a group of dissenters, or simply hooligans, disrupts, or threatens
to violently disrupt a meeting in which one or more speakers expresses
unpopular opinions, or opinions divergent to theirs, and action is taken
against the speakers for breach of peace, such action vests a de
facto power of censorship on the disrupters. And this is not the
sole danger. Once this principle is established, the police may be tempted
to disperse meetings or demonstrations, even when the risk of violence
is relatively slight; and worse, a biased administrative authority may
use the possibility of violence as an excuse to actively suppress and
censor the expression of views critical of the government or the status
quo.
As with other areas on the uncomfortable borderline
between freedom of speech and violence, no simple solution is available
to the problem of the hecklers veto. The law must, of course,
preserve peace, but if the democratic ethos were to survive, the law
must, equally, guarantee protection against intolerance to those who
express divergent opinion.
It is important to note, within this context, that
courts may be reluctant to challenge the exercise of executive and police
discretion in circumstances of apparent emergency. In any case, by the
time the matter reaches the court, and in the event that the speaker
is acquitted, the exercise of his right to free speech will already
have been successfully stifled. An acquittal does not retrospectively
guarantee the right to freedom of expression: the moment may have passed,
the protest may no longer have significance and the occasion for the
demonstration may have lost relevance. It is, consequently, essential
to establish and implement an explicit jurisprudence that judiciously
balances competing values.
The problem of hostile audience has notably
been taken up by the Indian Supreme Court in substantial detail in what
is known as the Ore Oru Gramathile film censorship case.28
The Tamil film Ore Oru Gramathile (In Our Village) dealt
critically with the sensitive issue of the States reservation
policy, arguing against the Constitutional provisions for reverse discrimination
in favour of the Scheduled Castes and Tribes, under which a proportion
of seats are reserved for these groups in educational institutions as
well as in government service and public sector employment. The State
of Tamil Nadu had appealed to the Madras High Court against grant of
a censors certificate for exhibition of the film on the grounds,
among others, that the film could create serious law and order problems
in the State.
The Madras High Court found great merit in this reasoning
and noted that if the film was exhibited it would endanger public order
because "it instigates ill feelings and distrust between Forward
Castes (sic) and Backward Castes, including Scheduled Castes
and Scheduled Tribes".29 The Court
cited with approval the observation of members of the Revising Committee
on the film that "The overall impact of the film is an exhortation
that there should not be any reservation on the basis of caste. This,
I fear, will create strong negative response from a section of the public
leading to a law and order problem." Similarly, the Court noted
that a member of the Second Revising Committee had opined that "the
film, if exhibited, is likely to hurt the feelings of some group which
may endanger public order."30
The Madras High Court also very convincingly placed
the issue in the context of Indias continuing history of communal
and caste violence, observing that the films advocacy of abolition
of the reservation system would lead to clashes "between
several castes."
Already people in the state of Gujarat had suffered immeasurably
for a long period on this issue. Several were killed and public properties
were damaged. There were agitations in Andhra Pradesh, Tamil Nadu, a
land of tranquility, by misguided notions of some, had experience in
recent past communal clashes (sic)
Valuable lives have
been lost
On the eve of elections, invariably, caste factors have
come to play their disgusting role... when the impact of the film is
centred around caste factor and when the topic has been mishandled,
if a breach of law on this factor occasions (sic), then it will
have wide ramifications
If the administration fails to foresee
properly the outcome of the dissatisfaction created among Castes and
Communities, if would result in public properties and valuable lives
of Citizens being lost.31
Certainly the danger of violence noted by the High
Court was both real and grave. Equally clearly, however, this violence
was not being instigated by the speech act in question, which essentially
consisted of the peaceful if politically incorrect advocacy
of reforms in certain laws, and the criticism of certain policies adopted
by the government. However inaccurate its representation of the issues,
or unpopular the ideas expressed in the film, it was no part of the
prosecutions argument that the film constituted incitement to
violence, or instigation to crime; nor was the film abusive or intolerably
insulting against any individual or group of individuals. The argument,
quite simply, was that reverse discrimination on the basis of caste
is unfair and results in distortions that could constitute a miscarriage
of justice. Those who disagreed with this message were free to stay
away from the screening of the film. Or to protest it by peaceful means,
in the equal exercise of their own freedom of speech. The very real
threat of violence that was spoken of in the Madras High Court judgement
was the threat of a hostile audience reacting to a message it preferred
to suppress. As the Court itself admitted, the film would affect the
"sensibilities of large sections of the general public, who are
prone to resort to violence."32
What the Madras High Court did in Ore
Oru Gramathile was entirely in keeping with the general attitude
of Courts in India in the past. By and large, courts chose to refuse
to make concessions to free speech in the face of broad demands by the
state that public order would be affected. In the Crossroads
case of 1950, of course, there had been a powerful liberal statement,33
and the Constitution had to be amended when judges refused to accept
that the interests of public order were linked to the security of the
state. Broadly, however, the courts tended to show great generosity
in fulfilling the states restrictive demands. The Supreme Court,
for instance, allowed time-bound pre-censorship in the Daily Pratap
case, even while admitting that the law was not "designed to directly
maintain the public order, or directly protect the general public against
any particular evil";34
and in Ramjilals case, the State was allowed to punish for the
publication activities which had a "tendency to cause public disorder."35
In Ore Oru Gramathile, however,
the Supreme Court completely repudiated this tradition, refusing to
accept the threat of public resort to violence as a legitimate ground
to deny the censors certificate to the film. The Supreme Court chastised
the High Court judgement for having run "afoul of the democratic
principles to which we have pledged ourselves in the Constitution."36
Justice Shetty cited the observation of the Court in Naraindas Indurkhya
vs. State of Madhya Pradesh with approval:
It is our
firm belief, nay a conviction which constitutes one of the basic values
of a free society to which we are wedded under our Constitution, that
there must be freedom not only for the thought that we cherish, but
also for the thought that we hate.37
Justice Shetty particularly stressed
the Constitutional dispensation that "it was not necessary that
everyone sing the same song."38
The state, the judgement asserted, cannot prevent open discussion and
open expression, however hateful to its policies, and everyone had a
fundamental right to form and express his or her own opinion on any
issue of general concern. Free speech in a democracy, the Supreme Court
insisted, was not just a strategic safety valve, but was based on the
expectation that "a bit of sense may be salvaged from the odious
minds striving to be rational."39
Quoting the European Court in Handyside vs. United Kingdom, Justice
Shetty defended the right to unpopular speech, even if such speech "shocked
or disturbed the State or any sector of the population."40
He insisted that the restrictions imposed must be proportionate to the
legitimate aim pursued, and any restriction by the State "must
be justified on the anvil of necessity and not the quicksand of expediency."41
These observations alone were sufficient to overturn
many preceding judgements in favour of constraints on speech: the state
was now required to show a necessity, and that too, a real necessity,
even a clear and present danger, before it was given the power to restrain
and punish expression.
The Court, however, went even further, declaring that
not only was it incumbent on the State not to restrain such speech,
but that it was the duty of the State to actively and positively protect
and defend those who exercise the right to unpopular speech. The Court
demanded, "what good is the protection of freedom of expression
if the State does not take care to protect it?"
freedom of expression cannot be suppressed on account
of threat of demonstration and processions or threat of violence. That
would tantamount to negation of the rule of law and a surrender to blackmail
and intimidation. It is the duty of the State to protect the freedom
of expression since it is a liberty guaranteed against the State. The
State cannot plead its inability to handle the hostile audience problem.
It is its obligatory duty to prevent it and protect the freedom of
expression.42 (Emphasis added).
Whatever the practice resorted to in day-to-day administration by the
police and the magistracy, with Ore Oru Gramathile the jurisprudence
established by the Indian Supreme Court now stood at par with the most
liberal ideologies of the West. Indeed, in many ways, the observations
in Ore Oru Gramathile go well beyond the prevailing jurisprudence
in the USA and UK, considered leaders in the field.
The American Supreme Court has not clearly
delimited the powers and duties of the police where there is a hostile
audience on the point of violently breaking up a lawful meeting. However,
Feiner vs. New York43
is one of the leading cases with a bearing on this issue. A speaker
at a street corner in Syracuse gathered a small crowd of both whites
and blacks around him. He launched into an invective-laden speech in
which the US-President was described as a "bum", and the local
mayor as a "champagne-sipping bum" who "does not speak
for the Negro people." The speaker advocated that the blacks should
"fight" for equal rights, and the crowd began to get restive.
The police feared that a fight could break out, and after two requests
to the speaker to stop, he was arrested for disorderly conduct. The
majority of the Court upheld the conviction on the grounds that he had
incited to riot, and that there was clear and present danger of disorder
perfectly acceptable grounds in law, though the Courts
interpretation of facts could be brought into question. It was, however,
the dissenting opinion of Justice Black and Justice Douglas that gave
special significance to the case, as they argued that the record did
not show any intent on Feiners part to cause violence despite
his exhortation to the Negro people to fight for equal rights.
Justices Black and Douglas thought that the polices primary duty
in the situation was to protect the speaker, if necessary by arresting
members of the hostile audience. By adopting the opposite course, they
insisted, police censorship had been imposed.
Though no subsequent judgement of the
American Supreme Court explicitly dealt with the hostile audience issue
in any detail, it appears that the dissenting opinion of Feiner vs.
New York has now gained predominance in the US jurisprudence. In
Wolin vs. Port of New York Authority44
the 2nd Circuit Court indicated
that the initial responsibility of the police is to protect the First
Amendment rights as far as possible. Thus, if the police have advance
information on the possibility of violence or disruption of a political
demonstration/speech, they should ensure the presence of an adequate
force to safeguard the freedom of speech and assembly. An order to disperse
can only be justified as a last recourse, when there is a clear and
present, or imminent, danger of physical violence. In Gregory vs.
Chicago,45
the majority of the US Supreme Court held that the demonstrators could
not constitutionally be convicted of disorderly conduct
for refusing to obey police requests to disperse when they were confronted
by hostile opponents. In the landmark Skokie judgement, where
the Supreme Court held that a group of neo-Nazis could not be
prevented from carrying out a flag-march in Skokie village which had
a large Jewish population, many of whom were survivors of the Holocaust
in Germany, the hostile audience problem was also touched upon, albeit
peripherally. The Court observed that, if Skokie officials were so sure
that certain hostile groups would be hard to control, the village should
seek an injunction against those persons and prohibit their
unlawful actions, adding that "if these civil rights are to remain
vital for all, they must protect not only those society deems acceptable,
but also those whose ideas it quite justifiably rejects and despises."46
In all, American case law seeks to protect the values of free speech
until it is clear beyond doubt that they should be subordinated on a
particular occasion to public order.
British case law is far more restrictive,
and confers sweeping powers on the police. There is, of course, one
major decision that adopts an uncompromisingly pro-free speech position
in the hostile audience context: Beatty vs. Gillibanks,47
where the Divisional Court refused to uphold binding-over orders imposed
on leaders of the Salvation Army for holding an unlawful assembly. On
a number of previous occasions, their procession had been broken up
by the Skeleton Army, and on this occasion, Beatty and some other Salvation
Army leaders were arrested when they refused to disperse a procession
that police felt would also be violently obstructed. The Court held
that the processionists had not caused any unlawful act, and that the
disturbances had not been the intended, natural, or necessary consequences
of their processions. Justice Field added, further, and very significantly,
that the Skeleton Army would be less inclined to intervene when they
appreciated that their obstruction would not terminate the Salvation
Army processions, but that if they did continue their violent opposition,
the police would deal with them, and not with people exercising their
lawful rights.48
The case, however, was highly controversial in Britain,
and its impact has been progressively diluted by the preventive powers
granted to the police to keep the peace which now provide a basis for
criminal prosecution even where organisers of a meeting have no intention
to provoke disruption. This authority flows from Duncan vs. Jones,49
in which the appellant had started to address a small meeting outside
a training centre for the unemployed in London, at a spot where disturbances
had followed another meeting an year earlier. Fearing a repetition,
the police asked the appellant to move to another spot, 175 yards away,
and when she refused, she was charged with obstructing a police officer
in the execution of his duty. Her conviction was upheld by the Divisional
Court.
This decision evidently rendered the law on freedom
of non-provocative assembly impotent. Here everything turned on whether
the police reasonably apprehended a breach of peace clearly a
fragile basis for the protection of civil liberties.
Compared to the sheer scale of potential violence that
Ore Oru Gramathile addressed the possibility of a caste
conflagration that could envelope an entire state, and possibly spread
across the nation the dilemma confronting the British and American
courts appears almost trivial, and their resolution somewhat equivocal.
Ore Oru Gramathile was indeed an immensely revolutionary judgement;
but more than a decade has passed since it was pronounced. Over this
period, the spirit and essence of that judgement appear to have been
swept aside by the rising tide of political violence, and the increasing
fragility of the Indian administrative system both civil and
judicial. These changing circumstances may tempt a revision of the principles
stated in Ore Oru Gramathile, bringing our jurisprudence in line
with the more conservative practice, and the increasing intolerance,
of our age.
This would be a grave error, compounding the cumulative
failures of governance and the administration of justice that have already
pushed our nation to the knife edge of violence. Indeed, the growing
violence of our times is, at least in part, a consequence of declining
levels of political debate and a consistent refusal across party
lines to discuss fundamental and disturbing issues. The result
is that these troubling issues are simply brushed under the carpet of
a pretence of harmony and conformity until they explode into violence.
The whores ethic of consensus has, today, made it impossible to
hold an honest debate on issues connected with caste or religion, to
take two prominent examples, and has given rise to the absurd claim
that only a Dalit or a Muslim can correctly articulate the interests,
the aspirations and the good of the community he represents.
Large sections of the population have, consequently, been held hostage
to their own exploitative, often bigoted, caste and religious leadership,
progressively excluding them from the sphere of liberal democratic thinking
and the possibility of social and economic development. Any critical
attention from an outsider or a dissident is immediately
suppressed, not only by violent opposition from caste groups and religious
orthodoxies, but also as a result of the supportive and politically
correct protestations of the supposedly liberal, egalitarian and secular
political leadership.
These problems are immensely exacerbated in a situation
of widespread terrorist violence. Administrative expediency is, in such
circumstances, a near-overwhelming argument in favour of the selective
suppression of speech acts that may offend fundamentalist and extremist
sentiments. But such a regime of expediency would only strengthen extremism.
It is now imperative that the state puts its fullest force behind the
protection of free speech against non-governmental and extremist censorship
and repression. This becomes a basic necessity for the survival of the
democratic framework: "If we seek a true victory, we must defeat
the fundamentalist ideologies that threaten to plunge the entire region
into a conflagration that may well destroy us all. The greater war that
we must now engage in is the war for the minds of men."50
Rhetoric alone, even the powerful rhetoric
of Ore Oru Gramathile, will not suffice to meet this end. Consistent
administrative and judicial action, based on a sound understanding of
the rationale of the judgement, even in the most challenging of circumstances
and at costs that may be regarded as prohibitive, is required. The level
of commitment that is needed to implement such a policy on the ground
can be understood best in the context of a single extraordinary example
the sacrifices, the costs, the effort and the manpower that went
into protecting the Hind Samachar Group in Punjab. The Group was thought
by Sikh extremists to be projecting an anti-Sikh stand.
One of the earliest acts of terrorism in that state was the assassination
of Lala Jagat Narain who headed this Group. A sustained campaign of
liquidation targeting the management, the journalists, and eventually
even the distribution network including hawkers and newspaper
delivery boys was carried out against this Group throughout the
period of terrorism in the state. 62 persons associated with the Group
were killed by the terrorists.51
The stubborn persistence of the family that controlled the Group, even
in the face of this onslaught, is well known: they simply refused to
be cowed down, to shut down their paper or to change their editorial
stance. What is not known quite as well is the sheer magnitude of the
protective umbrella, provided by the state police, under which they
functioned, and in the absence of which their courage and obstinacy
would have been fruitless, indeed fatal to the very last man. More than
two battalions of armed police men and para-military force personnel
were, at one time, assigned to the protection of the Hind Samachar Group
and its operations and this included operations down to the smooth
delivery through hawkers and newsboys of copies of the
paper to its readers.52
Speech is a curious entity. The most noble ideals enunciated
in the Constitution, the stentorian pronouncements of the Supreme Court,
the overarching oration of our members of Parliament, may have no impact
on the ground despite the immense significance ascribed to them
in our system of governance. And yet, a seemingly obscure idea articulated
in a context ripe for its realisation; a chance remark, uttered in some
remote province, that seizes the imagination of its people; a symbol,
conjured out of the collective aspirations of our faceless masses; each
of these has within it immeasurable possibilities of national transformation.
This is the unequivocal presupposition of democracy.
And this is why the state cannot, must not, retreat or allow
even the most inconsequential voice to be silenced in the face
of intolerance, of intimidation, of coercion, even of the threat of
the most extreme violence.
Notes & References
*Dr. Ajai Sahni is the Director, Institute for Conflict
Management and Executive Editor, FAULTLINES.
- WITTGENSTEIN, Ludwig,
Philosophical Investigations, 546.
- Cf., "Meek Surrender",
(Editorial) The Hindustan Times, April 6, 1999.
- AHMAD, Rashid, "Valley
stage to new morality play", Pioneer, 7.3.99.
- MISHRA, Law Kumar, "J&K
militants target jeans, cable TV", The Times of India, February
25, 1999.
- Cf., GILL, K.P.S., "Endgame
in Punjab: 1988-1993", Faultlines 1.1, Bulwark Books, May 1999,
p. 64-65.
- Ibid., p. 53. The exception
was the Hind Samachar Group, which had paid and, throughout the period
of terrorism in Punjab, continued to pay in blood for their stubborn
resistance to the extremist diktat.
- The distinction between
‘frivolous’ and ‘serious’ speech acts, however, is not as simple as
it seems. There have been several attempts in jurisprudence to distinguish
between ‘high’ and ‘low’ value speech which merit differential protection,
and ‘zero value’ speech, which would merit no protection. It is, however,
erroneous to assert that the protection of the freedom of expression
should be extended only to political or politically significant speech,
and not to other speech deemed to be of lesser social value. Apart
from the intrinsic value of speech as a medium of self-expression
and self-development, there are a number of problems of distinguishing
between what constitutes ‘political’ or significant speech, and what
doesn’t. This problem has often been raised in connection with obscenity
laws. Thus it has been suggested that almost all sexually related
‘speech’ "will invariably carry an implicit, if not explicit,
message in favour of more relaxed sexual mores… In our society, the
very presence of sexual explicitness in speech seems ideologically
significant, without regard to whatever other message may be intended."
[STONE, ‘Restriction of Speech because of its Content: The peculiar
case of Subject-Matter Restrictions’. 46 University of Chicago Law
Review, 1978, p. 111-112]. As a result, American Courts have seen
fit to treat topless dancing as a form of expression protected by
the First Amendment, though they recognised that "few of us would
march our sons and daughters off to war" to protect this form
of expression [Krueger vs City of Pensacola, 759 F 2d 851, 854 (11th
Circuit) 1985]. Indian Courts, however, have been far more conservative
in the moral codes they seek to inflict on the nation, and have found
it expedient to exercise their power of censorship in a wide range
of cases, including the successful prosecution of a Bombay bookseller
for the sale of D. H. Lawrence’s Lady Chatterly’s Lover. (AIR 1965
SC 881: 1 SCR 65). Such sweeping powers of censorship are rooted in
the "overbroad" provisions of Article 19 (2) of the Constitution,
which define the ‘Interests of Decency and Morality’ as grounds for
restriction of free speech. The fact, nevertheless, remains that "The
line between the informing and the entertaining is too elusive for
the protection of that basic right. Everyone is familiar with instances
of propaganda through fiction. What is one man’s amusement, teaches
another’s doctrine." [Winters vs. New York, 333 US 510 (1948)].
- "Meek Surrender",
op. cit.
- The Babbar Khalsa issued
a Press Release on May 21, 1992, setting the following conditions
for Manchanda’s release:
- Letters written by Sukhdev Singh Sukha
and Harjinder Singh Jinda (General Vaidya’s assassins) to the President
of India be broadcast in various languages including Punjabi on Radio
and Television at prime time (9.00 pm).
- All programmes relayed from AIR-Chandigarh,
Bhatinda and Patiala should be in Punjabi.
- Jalandhar Doordarshan would telecast
programmes in Punjabi, with preference to programmes depicting ‘Khalsa
culture’ . Only 5% of the total programmes were to be telecast in
Hindi, and these were to be screened by a committee of Punjabi scholars.
- All non-Punjabi officials – including
artistes – working in Radio and Television stations should be removed.
- News in Punjabi to be broadcast at prime
time and Hindi bulletins be discontinued.
- A majority of newsreaders and announcers
on Doordarshan should be Sikhs.
- Teleprinters in Punjabi should be introduced.
- Radio and Doordarshan should adopt a
balanced approach and give proper coverage to militants.
- Apologies should be tendered for telecasting
the programme ‘Punjab Yatra’ which was aimed at defaming the militants.
- In Punjabi bulletins, the word atankvadi
should be dropped and instead the word kharku be used. Words such
as terrorists, extremists and ultras should not be used.
- Representatives of militants should
be invited to present their views on Radio and Doordarshan.
- Every programme or News bulletin should
commence with "Sat Sri Akal" in place of "Namaskar".
- Some 243 persons were
killed by terrorists in Punjab between 1990 and 1992 alone under the
garb of "social reforms" – or the implementation of their
Panthic moral code. [1990: 76; 1991: 121; 1992:46]. Source: Punjab
Police.
- "Meek Surrender",
op. cit.
- DOUGLAS, Justice William
O., Terminiello vs. Chicago, 337 US 1, 1949. See also: WIGMORE, John,
‘Abrams vs. US: Freedom of Speech and Freedom of Thuggery in War-time
and Peace-time", 14 Illinois Law Review 1920, pp 554-58; BOLLINGER,
Lee C., The Tolerant Society: Freedom of Speech and Extremist Speech
in America, OUP (New York), Clarendon Press (Oxford), 1986; NEIER,
Aryeh, Defending My Enemy, New York: Dutton, 1979
- MILL, J S, "On
Liberty", Britannica Great Books, Vol. 43, Encyclopaedia Britannica,
1952, p. 293.
- BAGHEL, Meenal, "Quick
Gun Murugans, Revolver Ranis", Indian Express, December 13, 1998
- DUTT, Nirupama, "Playing
with Fire", Indian Express, December, 1998.
- Ibid.
- BAGHEL, op. cit.
- DUTT, op. cit.
- Cf. AZMI, Shabani,
"Freedom under Fire", Times of India, December 17, 1998.
- "Digvijay seeks
ban on book by Godse’s brother", The Pioneer, October 27, 1997.
- "Organisers of
‘Miss Tourism’ move apex court against stay", Indian Express,
November 3, 1997.
- "FM producers
summoned for ‘obscene’ broadcast", The Pioneer, October 25, 1997
and "AIR pulled up for ‘obscenity’", Indian Express, October
25, 1997.
- GILL, K.P.S., "The
Devil’s Alternative?", The Pioneer, August 9, 1997
- Indian Express, December
7, 1997
- Cf. for instance, "Arrest
warrant against Mamta Kulkarni", Times of India, October 171998;
"Book Banned", The Pioneer, December 2, 1998; "Udham
Singh in dock for mocking Laloo", The Hindu, April 21, 1999;
"Schools targeted for letters on Kargil", Indian Express,
July 19, 1999.
- The issue of extremist
speech, incitement and intimidation merit separate and detailed treatment,
and I propose to take these up elsewhere.
- See DOUGLAS in note
12 above.
- S. Rangarajan vs. P
Jagajeevan Ram and others, (1989)2, SCC, 574.
- S. Rangarajan vs. Government
of India, AIR 1989, 176, Madras.
- Ibid.
- Ibid.
- Ibid., at 177.
- Romesh Thapar vs. State
of Madras, 1950 SCR 594
- Virender vs. State
of Punjab, AIR 1957; SC 896.
- Ramjilal Modi vs. UP,
1957 SCR 860, (‘57) ASC 620
- Op. cit. at 35.
- SCC p. 816, para 23:
SCR p 650
- Op. cit.
- Ibid. at 40.
- EHRR, 1976, p. 737.
- Op. cit. at 53.
- Ibid., at 51
- 340 US 315, 1951
- 392 F. 2d.83, 2nd Circuit,
1968
- 394 US III, 1969.
- 578 F. 2d at 210
- 1882,9 QBD 308; 1882
15 CoxCC 138
- Ibid., 146, per Field,
J.
- 1936, 1 KB 218
- GILL, K.P.S., "Battle
for the Mind: Nobody can be a Winner in Kargil", Times of India,
July 9, 1999
- This included 2 chief
editors; 2 news editors / sub-editors; 12 reporters / photographers
and their relatives; 2 drivers; and 44 agents, sub-agents and hawkers.
Source: Arvind Chopra, Director, Hind Samachar Group.
- Details of the actual
security cover provided are as follows:
Security Cover for Hind
Samachar Group Jallandhur
- Security at the Press – permanent guards
at Jallandhur.
Inspector – 1, Sub-Inspector
–3, Head Constable – 6,
Constable –60, (above
one company strength)
- For escort of the proprietor and his
family –
Head Constable – 2, Constable
–3, (about one section strength)
- Residence of the Proprietor –
Sub-Inspector – 1 , Head
Constable –3 , Constable – 3, (about one platoon strength).
- Arrangement in the morning at Jallandhur
for sending taxis with Hind Samachar Group of News papers going to
various destinations – about one half company’s strength (say-about
90 Security personnel with escorts vehicles, going with Taxis or escorts
persons sitting in the taxi itself).
- At various main centres of Distribution
in Jallandhur - Wherever hawkers used to come to collect news paper
about one and a half Company strength (say 90 Personnel with Gypsys
for Mobile Patrolling and guarding of the distribution centre ).
- Residents of the main distribution in
Jallandhur – about one platoon strength (Say about 24 personnel at
the rate of 2-3 armed personnel for distributor’s residence).
- Patrolling in the areas where hawkers
of Hind Samachar Newspaper used to distribute news paper in various
areas – about two company (Say 90-120 armed personnel with Gypsies
for Patrolling).
- The arrangement in other cities/Towns
where Taxis carrying ‘Hind Samachar Group of Newspaper’s reached with
the news papers.
- At the place of arrival of Taxi-One
Section-Guard/Patrolling (Main Distribution Centre).
- At Sub-Distribution Centres, Hawkers
etc. the arrangement of armed Guards/Escorts were being made according
to the sensitivity of the area/town. Normally, it consumed a strength
of one company (Say about 60 Personnel), in smaller town and about
3 companies (Say 180 Personnel) in bigger towns.
- The arrangement of Guarding distributors,
sub-distributors and hawkers were required everyday during the morning
hours- at the time of distribution of the newspaper. However, some
distribution centres and residence of distributors which had been
declared targets by the terrorists were given permanent guards.
- In Borders Districts of Amritsar,
Gurdaspur and Ferozepur.
Despite massive security
arrangements which at times required deployment of about 5-6 company’s
(300-350 Security Personnel) during the morning hours, foolproof security
cover was not possible to be provided. In the first few months of declaring
Hind Samachar Group a target, the terrorists killed, a number of hawkers
and a few distributors in these districts.
- Subsequently, terrorist killings of
personnel associated with the Hind Samachar Group became more prominent
in the Malwa Areas – i.e., the Ludhiana-Sangur Belt.
- General
The arrangement of sending
escorts with the Taxis carrying Hind Samachar News Paper was as under:-
Starting from Jallandhur
escorts used to accompany the Taxis up to the border of the adjoining
districts. The adjoining districts used to provide escorts in the area
of its own districts and escorts of Jallandhur used to return back from
the inter District Border. Thus almost every district had to keep escorts
ready at various inter-district border to take over taxis carrying Hind
Samachar News Paper.
The district SSPs in turn
used to make similar arrangements for inter Police Station escorts.
Thus there was a network of escorts and patrolling provided throughout
the state every day to ensure that the voice of media is not curbed
by the terrorists. Despite all efforts, sporadic killings of person
associated with the Hind Samachar Group did take place.
Source: Information provided
by C. Pal Singh, former IG Operations, Punjab, who was responsible for
counter-terrorist operations in the state, and under whose over-all
charge the security arrangements for the Hind Samachar Group were made.
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