Freedom of expression will continue to remain
under siege unless all groups accept that people can have different
opinions and beliefs in a free country
“Our tradition teaches tolerance; our
philosophy preaches tolerance; our Constitution practises tolerance; let
us not dilute it.” These stirring sentiments were expressed by Justice
Chinnappa Reddy in a Supreme Court judgment pronounced in August 1986
which invalidated expulsion from school of students belonging to
Jehova’s Witness faith. Regrettably, over the years, tolerance has been
replaced by the rising menace of intolerance which strikes at various
fields of human endeavour and creativity: writings, music, drama,
paintings and movies.
Intolerance stems from an invincible
assumption of the infallibility of one’s beliefs and a dogmatic
conviction about their rightness. An intolerant society cannot tolerate
expression of ideas and views which challenge its current doctrines
and conventional wisdom. Consequently, unconventional and heterodox
thoughts and views have to be suppressed. That is the prime motivation
for censorship.
Extent of dissent
One criterion to determine whether a
country is truly democratic is the extent of dissent permitted. A
liberal democracy is one in which all groups in the country accept the
fact that in a free country, people can have different opinions and
beliefs and shall have equal rights in voicing them without fear of
legal penalties or social sanctions. Right to dissent and tolerance of
dissent are
sine qua non of a liberal democratic society.
Today we have reached a stage where
expression of a different point of view is viewed with resentment and
hostility and there are vociferous demands for bans. The banning itch
has become infectious. Sikhs are offended by certain words in the title
of a movie; Christians want the movie,
The Da Vinci Code,
banned because they find some portions hurtful. The ban was struck down
by the Andhra Pradesh High Court. No one dare write an authentic and
critical biography of a revered religious or political leader. The
American author James Laine who wrote a biography of Shivaji in which
there were unpalatable remarks about Shivaji was sought to be
prosecuted which was quashed by the Supreme Court. Worse, the
prestigious Bhandarkar Institute at Pune where Laine had done some
research was vandalised. That was mobocracy in action. The exhibition
of M.F. Husain’s paintings was stopped by intimidation followed by
vandalism of the premises. The exhibition
The Naked and the Nude
at the Art Gallery in Delhi is threatened with dire consequences
because it is considered obscene by the Vishwa Hindu Parishad women’s
wing. The musical performance by a teenage girl rock band in Kashmir
was coerced into silence because the music was termed un-Islamic by a
popular religious leader. There are media reports that Mani Ratnam’s
latest movie
Kadal has come under fire on account of Christian
ire that it has ‘hurt’ the feelings of the community. One wonders
whether we are hell bent on emulating the Taliban.
Fortunately, our Supreme Court has been a
valiant defender of freedom of expression. The well known actor Khushboo
faced several criminal prosecutions on account of her remarks on
premarital sex and its prevalence in metropolitan cities which were
considered to be against the dignity of Tamil women and ruined the
culture and morality of the people of Tamil Nadu. The Supreme Court
quashed the criminal proceedings on the ground that “under our
constitutional scheme different views are allowed to be expressed by
the proponents and opponents. … Morality and criminality are far from
being coextensive. An expression of opinion in favour of non-dogmatic
and non-conventional morality has to be tolerated and the same cannot
be a ground to penalise the author.”
The movie,
Bandit Queen, was banned
on the ground of obscenity because of the very brief scene of frontal
nudity of the bandit Phoolan Devi in the movie. The Supreme Court struck
down the ban and ruled that nakedness is not
per se obscene.
The Court emphasised that the Censor Tribunal which is a multi-member
body comprised of persons who gauge public reactions to films had
approved exhibition of the movie. This aspect was also highlighted by
the Supreme Court in its judgment in
T. Kannan.
Exhibition of movies is included in the
fundamental right of freedom of expression guaranteed by the
Constitution. One of the reasons frequently assigned for imposing a ban
is that it hurts the sentiments of a certain section of people in
society. ‘Hurt feelings’ is a slippery slope for banning expression.
Any book or movie or play which criticises certain practices and
advocates reforms will ‘hurt’ the sentiments of the
status-quoists.
For example, the abolition of Sati or the abolition of certain
superstitious practices in the name of religion. Criticism should not
be equated with causing offence. In the context of hurt feelings, the
Supreme Court has repeatedly laid down that the standard to be applied
for judging the film should be that of an ordinary man of common sense
and prudence and not that of “hypersensitive” persons who sense offence
in every scene or perceive hurt in every statement. The right method
is to vigorously refute the criticism by rebutting its reasoning and
data on which its conclusions are based.
Another ground for imposing a ban is the
bogey about apprehension of breach of law and order and outbreak of
violence in view of threats by certain groups about the exhibition of
the movie. As far back as November 2000, the Supreme Court in
KM Shankarappa’s
case categorically ruled that “once an expert body has considered the
impact of the film on the public and has cleared the film, it is no
excuse to say that there may be a law and order situation. … In such a
case, the clear duty of the government is to ensure that law and order
is maintained by taking appropriate actions against persons who choose
to breach the law.”
The same bogey of breach of law and order and
violence was raised by the State of Tamil Nadu regarding exhibition of
the movie,
Ore Oru Gramathile. The Supreme Court firmly rejected the State’s plea in its decision in
Rangarajan
in March 1989 in these words: “Freedom of expression cannot be
suppressed on account of threat of demonstration and processions or
threats of violence. That would tantamount to negation of the rule of
law and a surrender to blackmail and intimidation.” The Court
reiterated that “it is the duty of the State to protect freedom of
expression. 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.” It is noteworthy that the Supreme Court
endorsed the celebrated dictum of the European Court of Human Rights
that freedom of expression guarantees “not only views that are
generally received but also those that offend, shock or disturb the
State or any sector of the population. Such are the demands of that
pluralism, tolerance and broadmindedness without which there is no
democratic society.”
During the hearing of the writ petition regarding the movie
Dam999,
certain observations were made orally off the cuff by the Supreme
Court about law and order problems that may arise because of the
exhibition of a movie. The writ petition was in fact dismissed as
infructuous because the period of the ban had expired. There is no
mention or discussion of the decision in
Rangarajan at all in the operative part of the Supreme Court order. The salutary principle laid down in the
Rangarajan
decision has been approved in three subsequent decisions of the
Supreme Court. It firmly holds the field and has not been diluted at
all.
In contravention of the law
Banning of the movie
Vishwaroopam
by the State of Tamil Nadu was clearly in contravention of the law laid
down by our Supreme Court. The sad part is that Kamal Haasan, producer
of the movie, agreed to carry out cuts in the movie as demanded by
certain Muslim groups. It was not a settlement but surrender by Mr.
Haasan albeit for pragmatic reasons. However it lays down a bad
precedent because it concedes to certain intolerant groups demanding a
ban, a veto or appellate power over the decision of an expert body like
the Censor Board.
Our Constitution prescribes certain
fundamental duties to be performed by citizens (Article 51-A). One duty
of paramount importance which should be performed is the duty to
practise tolerance. Otherwise democracy, a basic feature of our
Constitution, will be under siege and the cherished right to freedom of
expression will be held hostage by an intolerant mindless mob.
(Soli J. Sorabjee is a former Attorney General of India)
Keywords:
Freedom of expression,
censorships,
democracy,
Human Rights,
Cinema Act
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http://www.thehindu.com/opinion/lead/the-rising-menace-of-intolerance/article4411975.
