A series of high-profile incidents over the past few months have stirred up conversation among Indians online on the subject of freedom of speech. Not surprisingly, parallels between the cases have been drawn at will to make ever possible argument for and against every side of the debate. This article is an attempt to look at the subject of free speech from a democratic and humanistic point of view.
I begin by outlining the essentials of four cases from the recent past. This will be followed by a short discussion on the notion of freedom of speech. Finally the implications of this discussion will be applied to each case.
PRESENTING THE CASE STUDIES
1. Zakir Naik Banned from UK and Canada
The man in question is a self-styled medical doctor turned Islamic preacher who delivers lectures, holds debates and answers questions in front of large audiences worldwide, all in the effort to spread the ideology of Islam. Naik is known for his hate-filled propaganda, delivered with a self-pretentious smugness designed to carry all the appeal of a tough inner-city kid wrangling his pants around his knees as he delivers one cheeky ad hominem after another on the MTV show “Yo’ Mama”. Its nothing short of cheap, logically incoherent, crowd pleasing rhetoric- going for the PWND factor. This image is the vehicle that he uses to promote a deceptively sugar-coated extremist ideology. He works with an Islamic television channel and also frequently travels India and abroad, spreading his version of fundamentalist Islam.
Naik has been in the news recently after being disallowed entry into the UK and Canada. Both governments within days of each other rejected his application to enter their respective countries on his speaking tour of the world. Naik is appealing against both the bans.
The ongoing Maoist insurgency against the government of India and the people who abide by its constitution is comprised of members belonging to various indigenous tribes in the forests of Central and North Eastern India. The Communist Party of India, Maoist, (not to be confused with the CPI Marxist) has been designated a terrorist organization by the government. The Maoists have been responsible for much destruction of life and property in recent years, as they fight the government supported incursion of mining companies into their lands.
Early in May of 2010, the Indian government released a statement warning that those who speak in support of Maoist terrorists could be prosecuted, under Section 39 of the Unlawful Activities (Prevention) Act, 1967.
3. Supreme Court Clears Film Actress Kushboo
In 2005, Indian film actress Kushboo was charged on 22 counts of obscenity because she said in an interview that it is acceptable for women to have premarital sex, “provided safety measures are followed to prevent pregnancy and sexually transmitted diseases”. There were mass protests in Tamil Nadu where Kushboo was worshiped by some as a goddess. Needless to say, the temples built in her honor were destroyed after this incident. In April of this year, the Supreme court dismissed all 22 charges brought against her.
4. Artist M F Hussain Gains Citizenship in Qatar
India’s most celebrated artist in modern times, Muqbool Fida Hussain, took up Qatari citizenship in February of this year. Hussain was awarded the Padma Shri 1955, the Padma Bhushan in 1973, the Padma Vibhushan in 1989 and was nominated to the Rajya Sabha in 1986. He gained notoriety in 1996 when pieces that he had painted in the 70s were reprinted in a Hindi magazine. Initially 8 cases were filed against him which eventually escalated to a large number of cases (about 900 or so) spread throughout the country. More details here.
In 2006, the death threats and acts of vandalism increased, forcing Hussain to spend an increasing amount of time abroad. His decision to take up Qatar’s offer of citizenship requires him to give up his Indian citizenship.
What does it mean to be Free to Speak?
Popular conceptions of political ideals vary depending on the cultural mindset of the population in question. In secular democracies the freedom to speak as and when one wishes is tempered with a sort of commonsense that many find comforting. You would be hard pressed to find anyone who didn’t agree that some forms of expression should not be permitted. The problem then is that in practice very few of us can agree on where to draw the line. It is because of this that we must pay attention to the semantics involved in formulating such principles.
Common wisdom on the notion of freedom of speech is that we are free to say anything we want as long as our speech does not impinge upon the ‘fundamental freedoms’ of others. The idea is that one’s freedom of speech must not cause ‘harm’ to others. This sort of reasoning leaves much unresolved, because in reality the problem of deciding what counts as ‘fundamental freedoms’ or ‘harm’ is not so simple. In fact, the reasoning often seen in the media and as popular opinion is simply designed to ignore the question or pretend that it has been answered. The problems begin just shy of where commonsense ends.
The law, when it is shaped by such general commonsense notions, remains ambiguous. Such ambiguity is often necessary, given that moral problems are almost always situational. However, there are practical limits to such ambiguity. These limits are to be determined by objective facts and logic.
Limiting Ambiguity Using Logic and Reason
In order to present a clear understanding of the problem, we must focus on understanding the semantic and political philosophy behind the idea of free-speech.
“…there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.“
John Stuart Mill
This excerpt is from Mill’s seminal work ‘On Justice” which has been instrumental in shaping modern conceptions of the rights of the individual in a democratic state. Let’s see in detail what Mill was talking about.
The freedom to criticize/express all ideas is a stranger to every dictatorship on the planet. The one thing we know for sure about freedom of speech is that the more it is practiced in a country, the less oppressed the people. This includes the freedom to criticize everything, including the state itself. It also includes the right to support any idea, however repugnant that idea might be to you or I. So, it is clear that such freedoms are a good thing. But how do we reconcile this right to support any idea with the ambiguous notion that freedom of speech must not impinge on the fundamental freedoms of others?
According to Mill, there are two major clauses to free speech. The Harm Principle and The Offense Principle. The first is valid (examples of use include hate speech, incitement of violence and making death threats) and the second is not (examples of use include blasphemy, criticizing an ideology, supporting an ideology/religion). This is the foundation of logic and reason over which we can build an appropriately malleable legal structure. Without such a logical framework, the ambiguity is a tool of oppression. The rest of this section is concerned with understanding the democratic interpretation of the harm principle.
Understanding the Harm Principle
The only valid restrictions on freedom of speech are those that are clearly meant to prevent harm. However, governments must go about doing this without stripping us off our freedom to offend. We must find a balance between the two. But how do we determine where this line lies? The only way to practice such a balance is to restrict the law to criminalize only those aspects of speech that clearly are intended to cause harm. Consider a case of hate speech, incitement of violence or making of death threats. A clear and intended causal effect must be drawn between the act of expression and the harm done. This is the only legitimate way in which the Harm Principle can be evoked to restrict certain forms of speech.
In order for an act of speech to violate the harm principle, it must call for and/or intend harm against individuals, and/or target specific locations or events. That is, one must express intent towards furthering specific harmful acts for the harm principle to be violated. On the contrary, if an act of speech expresses support for the notion of harm, or argues that harm is the only way for something to get done, it cannot be construed of as violating freedom of speech. This is the nuance that is often missed. One instance involves verbally endorsing an act of physical aggression (with the intention of furthering said act). The other is about simply supporting an ideology (without calling for harmful action). Of course, the ideology can have unintended harmful consequences, but that is immaterial. It can be argued that every influential ideology has harmful consequences, including yours and mine. This distinction between action and ideology makes a world of difference in real situations- the type of situations that such laws are meant to help navigate. The reason why we need this clear distinction is to avoid ambiguity in practice. This distinction prevents abuse by governments that want to get rid of certain popular ideas, under the pretext that they are “terrorist” ideas.
Note: In this case, ‘harm’ must also be defined in logical and reasonable terms. I will forgo that discussion here.
How Intent Separates Ideology from Action
There is possible overlap between support for ideology and support for action, which is why the distinction between discussion of ideas and the intent to harm is important. For example, it is perfectly OK for us to discuss the merits (or demerits) of destroying Israel or Palestine (just as an example). But if we demonstrate an intent to destroy Israel or Palestine by supporting specific actions, that should not be protected under free speech.
In order to clearly understand the role of intent, the colloquial interpretation of ideology must be properly qualified. Intention is the key dividing factor here. Accordingly, we must separate pure ideologies which have do not include intentions, from action-based ideologies which do. For the sake of convenience, we classify the former as ideology and the latter as action. Intention to cause harm is the difference between the two. Ideologies are very complex sets of beliefs, and no ideology is a self-contained entity. The only way we have of preserving freedoms and removing ambiguity is to clearly distinguish ideologies from acts that are intended to harm. This is the form of the word ideology that we must use to preserve democratic freedoms. This is very important, because politics, like everything else, needs careful analysis of the semantics used.
Free Speech and Free Society
In general, countries with citizenry that are relatively more free have a better understanding of the distinction between support of terrorist ideology and conspiring to commit acts of terror. In India as with much of the world, we are unfortunately unable to find such nuance in our political dialogue. The justification for allowing any ideology to be freely proclaimed and discussed is a whole different subject. I will not venture to tackle it here, but suffice to say that such freedom is one of the most highly valued commodities in the “free world”. In fact, it is the reason why the “free world” is so relatively “free”. The instant we begin adding restrictions to the free discussion of ideas we are in authoritarian territory.
However, when speech does indeed demonstrate intent to cause harm, democratic governments have a duty to prosecute the speaker. The failure of this clamp-down on certain kinds of speech is also a failure of democracy.
Note: In a democracy, you are free to choose any platform that is willing to express your views, but you may not demand that a private entity provide you with a platform to air them.
REEVALUATING THE CASE STUDIES
Why is Naik considered controversial in the UK and Canada and not in India? India has faced more Islamic terrorism than either of the other two countries, and yet Naik has not been the target of the Indian government.
A closer look at some of the most vile of Naik’s statements offers some clues. The one statement of Naik’s that has been quoted the most in the aftermath of the recent incidents is this: “If he (Osama) is terrorizing the terrorists, if he is terrorizing America the terrorist, the biggest terrorist, every Muslim should be a terrorist.’
Terrorism is an ideology, and a repulsive one at that to any civilized human being. But, as we have seen in the discussion above, specific terrorist acts must be described and endorsed before one can be accused of violating the harm clause. So, in my opinion, the above sentence, if taken by itself, is not grounds for prosecution. However, there are other statements made by Naik that, together with the above statement, conspire to discredit the notion that Naik is not endorsing violent acts. Specifically, Naik has made it clear multiple times that the ideology- the specific form of Islam- that he supports, requires homosexuals and apostates be put to death. Can you imagine him saying such a thing about Hindus? If Zakir Naik came out and said that the belief system that he is promoting on TV and using loudspeakers requires all Hindus to be put to death, he would be behind bars quicker than you can say “inshallah”! It is, however, socially (and apparently, legally as well) acceptable in India to say such things about homosexuals and kafirs.
By endorsing specific harmful acts against innocent civilians, through the process of spreading a particular extremist ideology that, by Naik’s own admission, absolutely requires those acts, Zakir Naik has violated the harm principle. He should have been prosecuted for hate speech and incitement of violence by the Indian government, long before Canada and the UK made clear the hateful deception that he represents. Naik’s fault is not the fact that he has defended and even promoted the idea of terrorism, but that he has clearly and explicitly endorsed specific acts of terror.
2. Maoist Rebels:
Under the conditions set by the democratic interpretation of free speech, the newly passed amendment to Section 39 of the Unlawful Activities (Prevention) Act of 1967 is a violation of our right to freedom of speech. There are two clear arguments to be made against the law..
a. The law is deliberately ambiguous.
This is the relevant portion of the statement, taken from the article:
“Any person who commits the offense of supporting such a terrorist organization (like Communist Party of India (CPI)-Maoist) with inter alia intention to further the activities of such terrorist organizations would be liable to be punished with imprisonment for a term not exceeding 10 years or with fine or with both,” a home ministry statement said.”
The article goes on to say:
“It said such action would be taken under Section 39 of the Unlawful Activities (Prevention) Act, 1967.”
Free speech can be preserved while respecting the harm clause. This requires a clear distinction in the law between legitimate discussion of ideas and expression of intent to harm. This is clearly missing in the law. A law restricting free speech becomes a tool to be used for suppression of ideas when it is so purposefully unclear. The harm clause could easily be stated very clearly and simply. Why could the lawmakers have not been more clear? One simple change in the language of the law would make it perfectly acceptable. If the law said “… the intention to further the terrorist activities of such organisations”, we would not be having this conversation. This is a simple switch from “furthering the activities of terrorist organizations” to “furthering the terrorist activities of these organizations”, but the effect is dramatic and extremely significant. This switch would remove the ambiguity inherent in the current law, but make the law ineffective as far as stifling of dissenting ideologies is concerned. My argument is that that the ambiguity is deliberately designed and put in place to suppress public expression and discussion of this ideology, through government intimidation.
b. The law is redundant
The new law is redundant regarding its stated purpose of targeting Maoist terrorism. It is not required for the government to do what it should be doing to stop terrorist acts. Whatever the contents of the Unlawful Activities (Prevention) Act prior to the addendum, it was fully sufficient to address Maoist terrorism. The recent change only pushes through one addition that makes any difference- the targeting of the Maoist ideology. This is why the new law is redundant as far as the purpose of targeting terrorism is concerned. It does not bring anything new to targeting the terrorist activities. The sole purpose of this law is to target the ideology.
Both these arguments (a and b) conspire to discredit the proposed intent and to lay unwarranted power in the hands of the government.
Some Additional Points
The tyrannical suppression of the freedom to believe and to propagate particular ideologies is commonplace in dictatorships and rare in true democracies. India does have a lot of freedoms compared to dictatorships and tyrannical regimes, but this is a hard fought and hard earned set of freedoms. In India, we can fight against tyranny confident that someday the truth will prevail, despite the forces that tend to accumulate power. The process of dialogue is key to our democracy, like it is to all democracies. The problem is that when laws are made to target ideologies rather than actions, this freedom to discuss and debate ideas is compromised. It was undemocratic when Stalin banned expression of religion and it is undemocratic if India bans expression of Maoist ideology (this is not the case with the law, but it comes awfully close, using intimidation to suppress ideas).
No ideology is self-contained, including Maoist ideology. Contained within the Maoist ideology is a deeper political ideology with ideological roots in many other systems of thought that must not be censored. It must be debated and discussed in the free-market of ideas. Simply dismissing all Maoist ideology as terrorist is exactly the kind of thing that the distinction between supporting actions (intended to cause harm), and supporting ideology (with no intention of causing harm) is meant to prevent. This sort of attack on an ideology by the government constitutes blatant censorship of ideas, under the pretext of protecting the people. This is exactly the kind of authoritarian government intrusion into public life that democracy is supposed to guard us from.
Under the current law, a professor of political science can easily be arrested for saying that the Maoists have a point. Maybe it won’t stick in court, but in any case this law does not necessarily have to be used to arrest individuals based on their ideological support, in order for it to have its intended effect. It is more about intimidation and control of mainstream culture. An objective observer must look at the language of the law and see how easily this law can be used to shut down political and social dissent.
Finally, I would like to expose a key assumption in the arguments supporting the law- the assumption that censoring Maoist ideology will somehow reduce Maoist terrorism. Where is the evidence for this? I think a very good case can be made that it will have the opposite effect by, for example, driving the Maoist elements underground and away from open and free discussion with democratically-minded and peaceful people. There may be better counter arguments, and there even may be studies on this subject. In any case, this particular point is irrelevant to the case against the law, because the two arguments presented above are sufficient to demonstrate that this law is draconian.
The events leading up to the cases against Kushboo, and the eventual dismissal of all the cases by the supreme court, do not deserve to be on this list. But I have included this issue here to make a specific point about free-speech. Adults are free to have consensual sex with other adults. At a much more benign level, adults are free to say so. The cases against Kushboo are an example of a primitive and dangerous slant in the public mindset towards restricting democratic freedoms in India. The only thing scandalous about the conclusion of the events here is that the government didn’t punish those who filed cases against Kushboo for saying there is nothing wrong with premarital sex. The cases were clear examples of frivolous lawsuits and constitute a waste of the court’s time (and are serving to intimidate free citizens). The supreme court should have imposed stiff fines on those who filed the court cases against Kushboo. However, ultimately the blame here lies with the public.
4. M.F. Hussain
As with the case of Kushboo, the issue of Hussain’s paintings and their widespread condemnation by communal elements is more a failure of society than a failure of government. The government’s inadequate response deserves its share of the blame for Hussain having to eventually accept Qatari citizenship, but it was Indian society, polluted by an ideology that demands automaton-like in-group behavior, that was the ultimate force that drove Hussain away.
The standard arguments that I have come to expect from those who support Hussain’s move to Qatar (instead of criticizing those violent factions that threaten his life) have to do with the moral imperatives concerned. “Why does he paint nude Hindu goddesses?” “Why not the Muslim prophet Muhammad?” “Hussain is mocking Hinduism” “Hussain’s ideas are offensive to Hindus” “Hussain is a provocateur”. One is, of course, free to make these arguments, and one may even be right. However, one may not in a democracy expect that these arguments are sufficient cause to take legal action against Hussain.
Those who make these arguments are missing the point about free-speech. Hussain’s motives are irrelevant as long as he is not promoting violent acts against people. The problem is that where religion is concerned, people lose the ability to see that criticism of all ideas is a human right. Moreover, many of those who criticize Hussain’s actions (which are protected under free-speech law) have made death threats and even sabotaged Hussain’s shows and art works. These are acts that are absolutely not protected by the law. Yet the outrage from the Indian community and media has focused on the paintings and the “expert opinion” on whether they constitute “offensive material”, and not on the truly undemocratic abuse of speech by those who have threatened harm against Hussain.
To re-iterate, we must draw a clear distinction between discussion of ideas and endorsement of acts that are intended to harm. It is understanding this distinction that can liberate India from the popular undemocratic mindset that is constricting her, preventing the resolution of a vast many social and political issues that need be addressed using reason.