Free speech & censorship: An excerpt

Editor’s note: It Started with Words, the hard-hitting new book by human rights activist Harsh Mander, examines the rise of majoritarian hate speech in India over the past decade and the systems and infrastructures that enable it: how it’s produced and spread, how it’s protected, who profits from it.

In the following excerpt, Mander looks at India’s hate speech laws and their “colonial inheritance”, where the lines between hate speech and unsettling speech are often blurred, leading to greater censorship and a paternalistic attitude shown by the state to its citizens. This excerpt has been published with permission from Speaking Tiger Books. 

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A central difficulty with India’s hate speech laws, however, is that they do not always distinguish clearly between dangerous hate speech and speech that merely unsettles or challenges dominant beliefs. Speech that humiliates, intimidates or incites hostility against vulnerable communities needs legal restraint. But criticism of religion, artistic expression, satire, rationalist argument and political dissent are often treated as if they pose the same danger. This is where the colonial inheritance of Indian law becomes most visible. 

Legal scholar Gautam Bhatia argues that many Indian laws and court rulings continue to rest on the assumption that citizens cannot be trusted to hear certain kinds of speech, and decide for themselves whether to accept or reject it. He comments on the many continuities with the legal framework of the colonial past, adding wryly that ‘one might be forgiven for thinking that the British never really left: we continue to remain in the waiting room of history, in perpetual watch for the day when we shall finally be ready to receive subversive speech with the engaged detachment of the autonomous, responsible Enlightenment individual’.

He illustrates this, for instance, with the grounds adopted by the Supreme Court in 1970 to uphold film censorship in the K.A. Abbas case. ‘[Because of] the instant appeal of the motion picture,’ observed Justice Mohammad Hidayatullah, ‘…its versatility, realism (often surrealism), and its coordination of the visual and aural senses…the motion picture is able to stir up emotions more deeply than any other product’; it was the duty of the state, therefore, to ensure that people were exposed only to good, wholesome cinema. Again, in S. Rangarajan v. P. Jagjivan Ram, the Court opined that the cinema-going ‘mass audience…are generally not selective about what they watch…[consequently] the movie cannot be equated with other modes of communication. It cannot be allowed to function in a free market place just as does [sic] the newspapers or magazines’. 

A second problem which concerns hate speech law implementation in India is what legal scholar Siddharth Narrain aptly calls the ‘heckler’s veto’. This veto arises from the way that IPC Section 295A (BNS Section 299) extends the scope of hate speech that can be lawfully proscribed from that which fosters enmity to that which injures religious belief. Again, this underlines a continuity with the colonial belief that Indians are susceptible to religious excitement, and need the protection of a paternalist state that decides what they should watch, hear and read. These shift the burden of responsibility from the state to maintain social peace to the speaker to ensure that ‘their audience…are not offended enough to disturb the peace’. 

This has led to restrictions and censorship of artistic expression—the ban on Salman Rushdie’s The Satanic Verses is sadly far from an exception—as well as on rational debate about religion, superstition and social orthodoxy. The cry of ‘hurt religious sentiments’ is raised whenever rationalists question religion and superstition, or when artists represent religious and mythological figures in ways that offend conservative sensibilities, as happened with M.F. Husain’s paintings. But the assault has not stopped at censorship or criminal prosecution. Rationalists and critics of religious orthodoxy—Narendra Dabholkar, Govind Pansare, M.M. Kalburgi and Gauri Lankesh among them—have been murdered for the worlds of reason, equality and dissent they stood for. In the climate of violent majoritarianism that prevails in Modi’s India, selective claims of hurt religious sentiment have grown like an epidemic, leading both to state persecution and targeted violence by non-state actors. What is more, the state often steps in to prohibit speech and expression that has allegedly caused such hurt, while looking away from vilification of Islam and Muslims. 

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This excerpt has been published with permission from Speaking Tiger Books.