I had written a couple of posts (Bestseller I and Bestseller II) on a High Court judgement banning a book spewing anti-muslim propaganda. In today’s Indian Express, Pratap Bhanu Mehta discusses the judgement in a larger piece on religious freedom and freedom of expression:
“…courts have been unduly squeamish about protecting free expression. This squeamishness can be seen in a deeply confused recent high court judgment: R.V. Bhasin vs state of Maharashtra. While the judgment, based on a plausible reading precedent, banned a book, Islam: A Concept of Political World Invasion, the normative and methodological claims in the judgment tell you how precarious free speech is. While the court makes expansive rhetorical claims on behalf of free speech, it equally makes expansive jurisprudential claims on restricting it. So under Section 153 of the IPC for example, it is “no defence that the writing contains a truthful account of past events or is supported by good authority.” No wonder even works of scholarship can be banned. In terms of incitement to violence it reiterates a rejection of the “clear and present danger test”; even a remote possibility is sufficient to invite a ban. Third, it does what a court should try and avoid. It directly engages in an interpretive battle with the petitioner over certain ayats of the Quran, trying to produce an “authorised” interpretation. This is disturbing because it frames the issue of religion in a bizarre way. Indian courts keep going to great lengths to show that there can never be anything offensive or bizarre in a religious text (and come up with claims like no religion can even preach violence, all religions are progressive if not the same and so forth). In short, courts confirm an ideology of respect for religion that emboldens those who claim they are offended. The particular book in question has some insulting stuff in it. But the court casts the issue in an unhelpful way. It says criticism of any religion is permitted so long as it is “academic”. Really? Lampooning and heaping insult are as much weapons of progress as anything. Imagine the poor philosophes of the Enlightenment achieving progress through “academic” criticism. While the court is right in its concern for hate speech, it has given too much leeway to those who take offence.
P. Ananda Charlu, as early as 1886, had prophesied how mischievous Section 153 of the IPC would prove to be. He described it as “a dangerous piece of legislation by necessitating the government to appear to side with one party against the other. In my humble judgment it will only accentuate the evil which it is meant to remove. Far from healing the differences which still linger, or which now and then come to the surface, it would widen the gap by encouraging insidious men to do mischief in stealth.” Both prophecies, that clauses on offence will induce rather than diminish competitive communal politics, and create a culture of mischief, have turned out to be true….”