Tension between freedom of expression and religious intolerance is manifesting globally-particularly in multicultural Indian society, where censoring books and films by the state and further victimisation of writers, film director, painter by the radical Islamist and Hindu groups is well noted1 . Norway-based Amit takes a hard look at the Hindu and Muslim fundamentalists in this in-depth research article. An analysis in Different Truths.
India’s government adopted secular democracy and religious pluralism. The Indian Constitution guarantees religious freedom, mandates the government treat all religions equally, however, the tension between the right to freedom of expression and the desire among many people to prohibit blasphemous or so called religiously hurtful speech (or expression) has become a focal point of conflict between religious groups and free thinkers2 . Thus multicultural Indian society have become problematic where anyone can be punished for voicing his or her opinion on the basis of “to excite dissatisfaction against the government,” “promote disharmony,” “prejudicial to national integration,” and expressions that are “lascivious,” “intended to outrage religious feelings,” or defamatory (Imposing Silence, 2015, p.13).
Indian Constitution, empowered media and free thinkers, but also to those who take offense or religiously offended, who can pursue criminal charges against editors and reporters. Particular concern is the Article 295A in the Indian Penal Code, 1860, Section 298, 1860. Both laws have been turned around to hurt most those very people who exercise their right to free speech as individuals living in a secular and free country. The IPC 298 and 295A provisions have resulted in the arrest, harassment, and censorship of many writers, journalists and academics. In addition use of violence and fatwa is also being used to suppress the freedom of expression. With Prime Minister Narendra Modi’s right-wing Bharatiya Janata Party in power, extremists and fundamentalist forces have been emboldened to suppress free expression and dissent3 . As Rajiv Dhawan (1987, p.212) correctly explained, “The reasons for many allegedly ‘communal’ tensions and religious clashes in contemporary India can be attributed to the manner in which politicians (and their supporting band of ideologists) have politically appropriated religious group life to their own purposes.”
Hindu Fundamentalism and Freedom of Expression
Forces of fundamentalist Hinduism along with fundamentalist Islam is posing serious challenges to the freedom of expression and liberal voices in India. Hindu fundamentalist have succeeded in threatening (in court of law and in public by means of intimidation, physical violence and killings) publishers to withdraw publication, exerting pressure to censor films deemed offensive to their political agenda, or silencing any critical voices contesting the Hindu religious myths and legends. The Hindutva forces are actively contesting and trying to limit the liberal space for those of different religions, alternate sexual orientations – those in power use not only physical force but also erasure of alternative interpretations and modes of being and silencing of those who subvert, critique and dissent to ensure their version of history and religion prevails4 .
Due to Hindu fundamentalist books such as Mahachaitra by H.S. Shivaprakash, Dharmakarana by P.V. Narayana, and Gandhi Banda by H. Nagaveni have been withdrawn from circulation and university syllabi5 . Wendy Doniger’s The Hindus: An Alternative History, was accused of attacking Hinduism and sexualising Hindus and has been pulped under the pressure by fundamentalist forces. The fear of the mob is so palpable that even after a court order lifting restrictions on James W. Laine’s book on Shivaji, bookshops are unwilling to stock it (Tripathi, 2015, p.44).
Hindu fundamentalist not just used legal channels to censor the offensive narratives, but also resort the violence. Malleshappa Madivalappa Kalburgi and Govind Pansare, both outspoken criticism of blind religiosity, superstition, idol worship, and rationalist thinker have been murdered by Hindu fundamentalist for his critic of blind faith6 . In addition, same fundamentalist forces asked to ban film, PK and threatened famous painter Makbul Fida Hussian whose painting of Indian goddess has offended Hindu religious sentiments.
Alarmed by the attack and censor on freedom of expression and free thinking, editorial in The Hindu (2013), wrote that “there is no denying the fact that fringe right wing groups have created an atmosphere of intolerance to outspoken writers and academics who question religious practices and myths, thereby putting pressure on freedom of speech and expression.” Delhi High Court has observed that growing instances of religious “intolerance” have to be “nipped in the bud”. In the context of film, PK controversy court also observed, “Constitution protected the right of an artist to portray social reality in all its forms, seeing a film was a conscious choice of the spectator and those offended by the content or the theme of a particular film were free to avoid watching it”7 .
However, what is more alarming is the openness with which these radicals and fundamentalist forces operate in Contemporary Indian politics, where nationalistic and fundamentalist tendencies are pitching, have clearly poses a serious threat to free thinking and freedom of expression.
Islamic Fundamentalist and Freedom of Expression
Islamic fundamentalist is no less behind their Hindu counterpart. Film, books and free speech alike have been targeted- in the court of law and in the public. In the court, Indian Penal Code (IPC) 298, 295A, 153A8 have been invoked against free thinkers. In more informal ways fatwa (religious decree), physical violence and threats have been employed by Islamic fundamentalist. Due to fear of mob, many free thinkers choose to self-censor against Islamic fundamentalist. As Salil Tripathi noted, “The more dangerous trend is of religious and other busybodies from most faiths and castes protesting against books or articles, threatening or sometimes committing violent acts against writers or publishers, filing lawsuits in distant local courts, and demanding that the state take action against the writer” (2015, p.43).
Indian ban against the book The Satanic Verses, within nine days of its publication in Britain on September 26, 1988, the Rajiv Gandhi government prohibited its import under the Customs Act. The action citing threat to public order was taken on a petition made diplomat-turned-MP Syed Shahabuddin. Muslim political pressure groups along with religious authorities (fatwa by Aytolla Khumani of Iran) played significant role to ban this book in India. However, currently, a senior Congress leader and former finance minister P Chidambaram admitted that decision of the erstwhile Rajiv Gandhi government to ban Salman Rushdie’s book, The Satanic Verses, was wrong9 .
Famous book by Bangladeshi author Taslima Nasrin’s Dwikhandita was banned in India for offending religious sensibilities of Muslims. Nasrin suffered a number of physical and other attacks following the publication of Lajja, later she fled to India. She had written against female oppression in Islam, earning wrath from fundamentalist and radical Muslims of Bangladesh and India, who called for a ban on her novel and resorted to physical threat to suppress her freedom of expression. In October 1993, a radical fundamentalist group called the Council of Islamic Soldiers offered a bounty for her death10 . Under pressure from Islamic radicals and due to vote bank politics, Indian government refused to grant her citizenship. She was not allowed to enter in Kolkata, which was her residence in exile.
A film directed by ace filmmaker Kamal Hassan, Vishwaroopam was banned. Muslim groups in Tamil Nadu demanded the ban of the film and claimed, that the film would hurt Muslim sentiments. Although the film was cleared by Central Board of Film Certification of India, the state of Tamil Nadu gave orders to the theatre owners to not show Vishwaroopam. Andhra Pradesh government stopped the screening in Hyderabad and other areas, where the Milad-un- Nabi festival is celebrated by Muslims, while a precautious stop of screenings was enacted by the distributor in Bangalore in light of Tamil Nadu’s ban11 .
The editor of an Urdu newspaper, Shirin Dalvi was arrested for printing a controversial cover of French satirical magazine Charlie Hebdo. Dalvi was booked for outraging religious feelings of any class by insulting its religion with malicious intent under Section 295 A of the Indian Penal Code 12 . Dalvi subsequently lost her job and the newspaper had to be shut down.
Self-proclaimed Hindu Mahasabha activist Kamlesh Tiwari came under fire for making derogatory remarks against Muslims and Prophet Mohammed. Thousands of Muslims gathered in Muzaffarnagar to demand death penalty for Tiwari, violent protest all over the country were organised in this context by Muslim political and religious leaders13 . In this connection, Muslim Organization, Anjuman Ahle Sunnatul Jamaat, called for a rally at Kaliachak, West Bengal, which led to communal violence14 .
Free expression and religious freedom need protection from those who would meddle with them. However, in the Indian context, they seem not necessarily incompatible. Free thinkers normally face challenge at the two levels. Either offender drags them (those who write books and make film/documentary) in the court of law or coerce them with intimidation, physical violence and social pressure. In this regard, Indian law empowers the offended comparatively free thinkers as many critiques has asserted. Wendy Dognier (author of banned book in India-The Hindu: An Alternative Story) commented, “The real adversary of free speech in India is the empowerment of the offended.”
Is Domestic Law a Problem?
Despite its Constitutional commitment to free speech and expression, India’s legal system makes it surprisingly easy to silence others. Wendy Dognier believes “Indian law that makes it a criminal rather than civil offense to publish a book that offends any Hindu, a law that jeopardizes the physical safety of any publisher, no matter how ludicrous the accusation brought against a book.15 ” Imposing Silence, (2015, p.4) a report on India’s freedom of expression highlighted, the Indian Penal Code (IPC) offers would-be censors a wide range of potential offences, If you disagree with something that can be said to promote “enmity,” jeopardise “national integration,” “maliciously” insult religion, or foster “enmity between groups,” it is not difficult to invoke censorship.
Article 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression as a fundamental right. However, According to Article 19(2), freedom of expression is subject to “reasonable restrictions … in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” The overbroad phrasing of these limitations gives the state extensive powers to justify curtailments and unduly restrict freedom of expression (Imposing Silence, 2015, p.11).
Blasphemy, which is criminalised by Sec. 295A of the IPC, is defined as expression that is “intended to outrage religious feelings of any class by insulting its religion or religious beliefs.” This laws also control the religious and political narratives and cases of obscenity.
Section 153A attempts to preserve “harmony” between a variety of enumerated groups by barring speech and several other acts. Violations of Sec.153A are punishable by imprisonment of up to three years and/or a fine16 . On the basis of Blasphemy, Promoting Enmity, Public Mischief, Obscenity, Cyber-Offences, Criminal Charges and Civil Suits can brought against anyone. In addition, government also regulates the electronic media through Cinematograph Act, 1952, and Cable Television Regulations.
Once freethinkers charged with any of the above mentioned offense, it’s quite challenging to pursue case in the court of law keeping the unreasonable delay, judicial corruption, police corruption and court fees involved in the legal proceedings as the ‘process becomes the punishment’ (Imposing Silence, 2015, p.32). Punitive sanction and vague and overbroad laws, to certain extent discourage the right to freedom of expression.
Against this background, it has become quite challenging to freely express one’s opinion especially in the time when rise of hegemonic nationalism and religious fundamentalism is threatening critical voices in India. Rajeev Dhavan (1987, p.19) expressed his concern: ‘A new communal politics has [e]merged, [one] devised to intimidate writers, artists, researchers and ordinary people into silence under pain of violence and the destruction of their work and property. … The Hindu Right beats up and kills people, protests against Valentine’s day, attacks missionaries, prevents films they do not like from being exhibited, imposes social bans on dress and behaviour, This kind of moral censorship has become a fact of everyday life in India’.
Challenging Law: Voices from Civil Society
Civil society have been critical to these laws since under present law, a person couldn’t attempt to initiate a public debate to modify people’s perception as the person was ‘chilled or gaged’ and not only person (freethinkers) harassed by a criminal prosecutions which could unendingly, but also on that pretext, a vibrant and public discourse essential in democracy is gagged (Swamy, in Times of India, 2015). Bhartiya Janta Party leader (Hindu Nationalist Party) Subramanian Swamy has challenged before the Supreme Court various provisions of the Indian Penal Code dealing with offense of hate speech. Challenging Sections 153, 153 A, 153 B, 295, 295 A, 298 A, 298 B and 505 of the IPC in respect of so called ‘hate speech’ were used to penalise people for expressing their views even within the bounds of reasonable restrictions17 .
Consequently, Supreme Court has agreed to examine the constitutional validity of penal provision for hate speech. In addition, Supreme Court quashed Section 66A18 as unconstitutional clarifying the balance between the right and its narrow constraints. However, supporters claim that restrictions on free speech serve to maintain societal harmony, and public order.
Protecting Religious Sensitivities at the Cost of Free Expression
Religion has consistently played an important and contentious role in Indian politics and society. India is religiously, ethnically and linguistically diverse. Among main faiths are Hindu, Muslims, Sikh, Buddhist, Jain etc. Preserving communal harmony among this religious pluralism is of prime importance for Indian government. Yet, from Timur’s invasion, in 1398, to the Gujarat riots, of 2002, the country has also suffered many tragic episodes of religio-political violence19 . India is a secular country. Indian Constitution guarantees religious freedom, mandates the government treat all religions equally.
However, the tension between the right to freedom of expression and religion arises when critical voices against religion deemed offensive get gagged\punished by government or religious fundamentalist elements or both. When government step in such conflict, it is ostensibly to protect communal harmony and public order. Keeping the volatile Hindu-Muslim relations and emerging communal tension government take prompt action against any threat (imagined or real) to religious communal harmony, as earlier mentioned examples have shown.
However, while laws and regulations exist to address prevent sectarian violence, nonetheless, their vagueness that law can also be used by groups to shut down free expression, and Indian government may have challenging task of balancing the religious harmony with the right to freedom of expression.
8 Section 153A(1)(a) criminalises “words, either spoken or written, or by signs or by visible representations or otherwise, [that] promot[e] or attemp[t] 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.
10 All India Muslim Personal Board (Jadeed) “offered 500,000 rupees for her beheading in March 2007. The group’s president, Tauqeer Raza Khan, said the only way the bounty would be lifted was if Nasrin” apologises, burns her books and leaves. Muslim leaders in Kolkata revived an old fatwa against her, urging her to leave the country and offering an unlimited amount of money to anybody who would kill her. https://en.wikipedia.org/wiki/Taslima_Nasrin
11 Kerala saw an unlimited release of the film, although some Muslim outfits were reportedly arrested by the police of Kerala for disrupting screenings. In Thiruvananthapuram, a group of Social Democratic Party of India (SDPI) supporters took out a protest demonstration to the theatre complex. https://en.wikipedia.org/wiki/Controversies_related_to_Vishwaroopam
18 Section 66A defines the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction can fetch a maximum of three years in jail and a fine. – See more at: http://indianexpress.com/article/india/india-others/explained- article-66-a/#sthash.Jdyj9YLI.dpuf
Constitution of India, available at https://india.gov.in/my-government/constitution- india
Dhavan, R (2008) Publish and be Damned: Censorship and Intolerance in India, Tulika
Books, New Delhi
Dhavan, R (1987) Religious Freedom in India, The American Journal of Comparative Law,
Vol. 35, No. 1 (Winter, 1987), pp. 209-254
Thapar, R (2015) The Public Intellectuals in India, Aleph Book Company, New Delhi
Tripathi, S (2015) Fear of Mob, in Imposing Silence, The Use of India’s Laws to Suppress
Free Speech, a joint research project by the International Human Rights Program (IHRP) at
the University of Toronto, and PEN Canada, Ontario