[Commons-Law] Stiffling Speech by Community Groups in India...

Tue May 24 01:49:09 IST 2005

Its not for the first time that a constitutional value or right has attempted to be nullified against right to religion. Women's rights activist like flavia agnes have carried on this struggle for long to ensure gender justice in context like family and personal laws or marriage, divorce etc. The Shah bano controversy and its aftermath are just examples, that how these so called competing values play in public domain. What is important is that Supreme Court in both Shah Bano case and later Danial Latifi Case( Upholding the constitutional validity of the statute) has relied on subaltern interpretation of islamic law from various sources and not the dominant version as advocated by AIl india muslim law board etc. 

Recently there was ample media coverage regarding model nikahnama, and All India Muslim Women Personal board did reject the model nikahnama that was thought to be conservative and did not reflect the constitutional values or even the rights given in islam to women, when properly interpreted can be progressive.

This brings to the qestioin that when a right, like speech and expression is pitted against right to religion, whoes values are being relied? SGPC or AIMPLB with all due respect are bodies representing not all religious and diverese views, but only upper class and elite views, through which they have subjugated a large section of their own communities for ages. The sangh parivar again and again tries to rely on brahmanical values in its hindutva campaign which is in decline, forgetting that when hindutva campaign was on its peak, the staunch protagonist of the movements were Uma Bharati and Kanshi Ram and others and they made concious effort to propogate non Brahmanical values of hinduism. The large electoral success they had was precisely bacause it appealed not only to  brahmins but also to OBCs, and the trading communities.

The irony is that Religious bodies who denounce television and internet in guise of saving religion from values of 'modernity' rely utmost on television, interent, modern communication means. Unlike Supreme Court, Executive has a propensity to fall into this trap, once so often. It is often assumed that, rightly or wrongly, that it will pay rich electoral dividends. And even Communist govt. in Bengal has not hesitated to ban Taslima Nasreen's novels, shows that this strategy is rampant from left to right of politics in india. And this problem has been in developed world too, in UK, a play written by a sikh women  called Bezhati that showed rape and sexual violence in gurudwaras was called off, by the theater group, because a large number of sikhs were demonstrating and that it might create 'law and order' problem. This law and order problem is another way to deny freedom of expression. Worth mentioning that , in America, Freedom of speech and expression has been held to be absolute
 by American SC and it can be only interfered with when there is clear and present danger of violence. 
As justice holmes had eloquently put in Gitlow's case "That every idea is an incitement"

As on the point of horizontal application of rights, this doctrine though sounds well, is conceptually very difficult and most democracies, in Europe, South Africa etc have struggled to apply this doctrine in practice. Therefore utility of it also has to be seen, especially in indian context where other that fundamental duties in art, 51A there is no sound legal basis to apply such a doctrine.

Just few random thoughts!!!!

Cheers
Vasuman

sudhir at circuit.sarai.net wrote: 
Dear Hasit

If freedom of speech rights were to be exercised horizontally (citizens
asserting rights against fellow citizens) then such private forms of
censorship could be remedied. Moreover I guess the State should have a
positive duty to ensure that free speech rights are sustained.

But you are right to point out that presently community groups/leaders
consider it their right to censor public speech!

Sudhir

On May 23, 5:11 pm Hasit seth wrote:
> Dear All,
>
> A vast amount of literature and buzztime is spent in studying
> government/state restrictions on speech. With rise of a "commons"
> culture, a considerable study is being made of how commerce and
> private industry affects speech. But very little attention seems to
> be given to how social communities restrict speech. I am specifically
> speaking of religious and caste oriented community structures in
> India. Freedom of speech has been under a continuous blackmail by
> religious/caste groups in India which get ever ready help from
> government in banning books, movies, plays and lectures.
>
> Religion/Caste in India seeks a status over and above the
> constitution. They are the uber power in India's social power
> Olympics. Constitution works for the religious/communal groups if it
> does not disturb their own power over their own group and if its helps
> them resist or subdue other "rival" community groups' interests. I am
> interested at the moment only in effect of such religious/caste
> communities over freedom of speech. Almost every time a film or book
> critical of any community is published, there are rallies, riots, and
> even violence against the writers/creators/collaborators of the book.
> The government is all too willing to use legal powers to ban such
> "offensive" material. The freedom of speech in the constitution is
> practiced as an exception to the proviso that allow restrictions on
> speech that "...offend against decency, or morality or which
> undermines the security of the state or tends to overthrow the state".
>
> Yesterday, there were bomblasts in two theatres in Delhi where a
> film called "Jo Bole So Nihal" was being shown which the Sikh
> community declared was offensive to their religious beliefs. "Black
> Friday" movie was being litigated against in the Bombay High Court,
> which allowed screening of another movie relating to a story about a
> Catholic priest. Historian James Laine's book on Shivaji was banned
> and so on when protesters ransacked library of Bhandarkar Oriental
> Research Institute which they thought has helped Laine. Muslim
> community has in past invoked book bans from the government for a mere
> asking (Satanic Verses, Lajja etc). These are just some recent
> instances of how religious/caste communities in India stiffle speech.
> Only exception I remember in recent times was Dalit community
> (especially Prakash Ambedkar) who were angered by Arun Shourie's book
> "Worshipping False Gods" about Dr. B. R. Amebdkar. Prakash Ambedkar
> and other Dalit intellectuals made it clear that they are going to
> fight this book with intellectual material and not riots. So that book
> was published and so were oppositions from dalit intellectuals. (I
> recollect these instances from memory, so please let me know of any
> inaccuracies). These book bans may have been "right" in some short
> term or long term governmental perspective, but the point is that
> religious/caste groups stifle speech in India to a considerable extent
> and readily get away with it.
>
> Intellectuals and press in India do not usually come forward in
> criticizing such community powered stifling of speech lest they be
> seen as favoring or opposing one minority group or a majority social
> group. Judiciary and executive seem to be more concerned about day to
> day "law and order" problems than any real consideration for the
> Fundamental Right of Freedom of Speech. Further, judiciary and
> executive believes that throwing the baby out with the bathwater
> solves the problem, so they are ready to ban a book when any religious
> community makes a threat of agitation against the book.
>
> Interestingly, when one community gets a book banned no other
> community objects to it since tomorrow they too would want to exercise
> their "uber constitutional right to their religious beliefs" by
> seeking to ban some book/film. And that is how more or less freedom
> of speech in India has functioned for 50 years with very few instances
> of stifling of political speech by the government which is the major
> concern of western world's "freedom of speech". We are all aware of
> book bans in the west too, but it is a declining phenomenon over the
> years rather than an active happening in recent past.
>
> Freedom of speech is not an absolute right anywhere since speech
> can have immediate catastrophic effects. Given that India is a vast
> complex of societies that carry a variety of beliefs can there be a
> basic premise of freedom of speech that is restricted in operation in
> very rare circumstances? or is that a western world's freedom of
> speech which has had renaissance and eventual decline of religious
> influence in public affairs? If so what should be an "eastern freedom
> of speech" be like? Should an eastern freedom of speech provide a
> super exception for "religious speech"?
>
> India has to resolve the larger question of supremacy of religion
> vs. constitution sooner or later. We seem to believe that magically
> one day all communities in India will realize that constitution should
> have primacy rather than their own dogmas and till then it is fine to
> let religion trump constitution by allowing religion the upper hand
> through freedom of religion. I think of it this way: In a
> constitutional democracy with a marginal or no role for religion,
> religion is forever knocking on the door of political house of power
> to be let in (e.g., recent emergence of religion in American
> politics). In Indian context religion/caste is already in the house
> of power through the owner's invitation (constitutional right to
> religious freedom and its judicial interpretation) and is now seeking
> to oust the Constitution as the owner of the house which some how
> naively believes that religion will one day understand that it needs
> to stand quite close to the door and not abuse its invitation. But in
> the interim, freedom of speech will continue to be stifled by
> religion/caste in India with minimal opposition from intellectuals,
> the judiciary, the executive and even the public. If no participant
> of the Indian society wants freedom of speech that isn't held to
> periodic hostage by religious/caste groups then what is it doing in
> the constitution anyway?
>
> I still have to reply to Jeebesh's earlier mail, but above is also
> a part of that thinking process in a broader sense since it involved
> what kind of "look" of society do we want.
>
> Regards,
> Hasit Seth
> _______________________________________________
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> commons-law at sarai.net
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