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The process is the bloody punishment

January 25, 2012

Sec. 153A of the Indian Penal Code – that favored child of the religious right- provides for punishment of upto three years imprisonment for the promotion by words (spoken or written) of disharmony, feelings of enmity, hatred or ill will between religious communities. The punishment laid down in this section has to one of the most redundant penal sanctions in the law since in this case the process is the bloody punishment.

There is a similar redundancy in Sec. 295A of the IPC which provides that “Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise] insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

So why is the punishment redundant? Because it doesn’t really matter. The mere fact that the provision exists and the fact that it allows for the possibility for someone to file a police complaint or threaten police action serves the purpose of intimidating speakers, reader, organizers regardless of the fact that in most cases if it were to go to trial, it would be highly unlikely that the offending act would be found to be in violation of the provisions. The courts have laid down reasonably high standards for interpreting what would amount to a violation of these laws, and have even acknowledged their misuse.

In Bilal Ahmed Kaloo v. State of A.P the Supreme Court held that for 153A to be invoked it was necessary that there were at least two groups or communities involved. They argued that ‘merely inciting one community’ without reference to another cannot attract the provision. They expressed their concern over the causal use of the provision and said “we wish to observe that the manner in which convictions have been recorded for offences under Section 153A, 124A and 505(2), has exhibited a very casual approach of the trial court……..Mechanical order convicting a citizen for offences of such serious nature like sedition and to promote enmity and hatred etc. does harm to the cause. It is expected that graver the offence, greater should be the care taken so that the liberty of a citizen is not lightly interfered with”.

It doesn’t matter that the courts have consistently held that there has to be  a causal link established between the speech/ words that are said to incite an actual incitement towards the commission of an offence or violence. Lets face it, the people who file these complaints have little interest in actually seeing anyone being punished. Their interests are extremely short term: the immediate prevention of a reading, a performance, an exhibition and the announcement of their victory via the media. William Mazzarella terms this as the politics of ‘profitable provocation’ which he says are not about silencing tactics, but precisely about harnessing and mobilizing the public energy of the very artifacts that they appear to be trying to suppress.

Most of the focus of the debate  on censorship tends to be on substantive law, and on the actual contents of specific provisions such as 153A and 295A and the demand that is made is either for a repealing or an amendment of these provisions to make them less draconian.

It is unlikely that we will see –atleast in the near future-  a repealing of these provisions. One does not after all exile one’s favored child without giving him thousands of opportunities to change. The Courts have through their judgments effectively circumscribed these provisions by limiting the circumstances under which they may be invoked, and yet at long as they exist in a form that allows for anyone to file a police complaint their job is done. It is both exasperating and bad mannered to repeat oneself endlessly but in these shrill times what can one do but say again and again the process is the bloody punishment.

Rajeev Dhavan in his book Published and be Damned argues that imperfect as the jurisprudence of free speech in India is, it at least provides one with a platform to challenge unreasonable acts of the state. The real challenge is how we tackle the lumpen threats which also expertly use the law in strategic ways. Violent attacks are generally preceded by or followed by the use of criminal law as a strategy of harassment. In his article on Harassing Hussain, Dhavan invents a new acronym KICKS, adding to the familiar SLAPP suits (Strategic Legal Action Against Public Participation). Dhavan sees KICKS (Kriminal intimidatory coercive knock out strategies) as a mode of using the law for the most illegal purposes by the most lawless groups. Recall the way that Hussain was Kicked out of the country by the many criminal cases filed against him across the country.

The Supreme Court in Rangarajan v. Jagjivan Ram has clearly laid down that freedom of speech and expression does not just entail the right of a person to express his opinions freely, but also entails a duty cast upon the state to ensure that there is no interference with such a  right. The court held “If the film is unobjectionable and cannot constitution- ally be restricted under Article 19(2), 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 black mail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. 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”.

And yet in the Jaipur literary festival, what we see is a completely submission to threats and an absolute surrender to the blackmail of various groups. When four writers decide to protest and show their solidarity by reading extracts from the Satanic verses- an act they are completely within their rights to do- then we have cases under 153A being filed against them.

While censorship never succeeds in instituting a complete and total subjectification of speech through a process of law, it does effectively circumscribe the social domain of the speakable. Art. 19(2) and provisions like 153A and 295A testifies to the complications arising out of making a claim as a legal speaking subject. Any transgressive speech act, whether in art, literature, or film, will always face the risk of the artist transgressing the kind of speaking subject that you are and taking you outside the domain of who you are as an enunciator.  On the other hand, by limiting yourself to a juridical claim, you run the risk of subsuming yourself to what has already been defined as the speakable.

The recent experience in Jaipur mirrors the conundrum that films makers in India have faced for a long time. Documentary film-makers in India have had two options whenever their films have been cut or censored by the censors. They can either go down the juridical route and fight the case in court, thereby adding to the corpus of jurisprudence that supports free speech in India. Or they can choose to ignore the Board completely and refuse to submit the film for certification altogether. While the former involves making a claim to your right to free speech as a citizen, the latter involves the legal threat of criminal sanctions being imposed on you.

In the case of film, the judiciary’s role is to intervene and correct the excesses of the Censor Board. But the peculiarity is that the court’s decision is determined on the basis of whether or not a particular film violates an existing principle ‘a, b, c, d’, of the list of prohibitions.  For instance, if the principle is about not inciting communitarian hatred, the court will argue that the scene in fact does not do so. What is left intact, however, is the ‘a, b, c, d’, of the list. Thus even as the court affirms the rights of an individual film maker, they do so through a reaffirmation of the basic categories of censorship.

There is thus a curious double bind that exists here. If you choose to rely on the juridical model and try to embody the norms that govern speakability in your speech, then you are absolutely affirming your status as a juridical subject of speech. Thus, if you approach the court as someone entitled to the freedom of speech, then you have to subsume your status as a speaking subject completely within the terms of the juridical. If you refuse to do that, then you risk not being granted the status of being a speaking subject. In other words, if you attempt to move outside the domain of the speakable, which has been defined by the juridical model, then you risk your status as a subject of speech, and as a speaking subject.

How do we imagine our resistance to censorship and how do we look at speech acts that push the ‘margins’ of the speakable? The speaker who speaks at the border-line of the speakable runs the risk of being cast out of the domain of the speaking subject, and yet it is only through such a risk that we can attempt to redraw the lines between what is speakable and what is unspeakable.

Hari Kunzru, Amitava Kumar, Jeet Thayil and Ruchir Joshi redrew-even if momentarily – these lines in Japiur, and any line, not matter how thin or faint is a starting point that we need to seize to think of our collective strategies- legal, tactical, technological- to move out of the dual punishment of the substantive provisions of law and the speech strangling procedures that accompany them.

6 Comments leave one →
  1. Amit Upadhyay permalink
    January 25, 2012 12:45 PM

    hi lawrence this is more of a question rather than a comment. What is the legal position on casteist slurs, or for that matter racist slurs, sexist body comments, talk of overthrowing the state using violence and so on? Are these also constitutionally protected, or are they subject to separate laws?

  2. January 25, 2012 12:54 PM

    Interesting, but it isn’t clear where the border between the “speakable” and “unspeakable” lies. Just saw this that in Indonesia anti-blasphemy law exists (which Kapil Sibal was trying to bring to India) and a guy got arrested there for saying “there is no God” because that is what blasphemy is about. I think that is not “unspeakable” in India: Thank God (reference intended!) ? (
    http://blogs.wsj.com/searealtime/2012/01/23/indonesian-detained-for-facebook-post/
    )

    In that case we know it is, but where exactly does the unspeakable begin ? Discussing this case ( http://ow.ly/1G2mO ) someone offered that criticising a famous person, a judge, will be contempt of court ! An expert chimed in that it is not, if you are criticising the judge’s personal activity outside of court. Some think that penalties could be higher when “higher ups” are criticised. I think the public need a lot more education on these matters. Perhaps you should start by explaining the matter in layman’s terms, taking some examples ?

  3. Name permalink
    August 3, 2012 11:51 AM

    The “lumpen elements” you refer to will masquerade as “complaining citizens”. See how that’s going to shape up and how India will bring the whole internet, the world wide web, the whole global thing under Indian control. Sounds amazing. Are we going to be the great IT superpower thusly, finally ?

    http://news.outlookindia.com/items.aspx?artid=770844

Trackbacks

  1. How to prevent another Ramlila: What the SC ruling misses | Firstpost
  2. How to prevent another Ramlila: What the SC ruling misses
  3. Freedom of speech in India is for the rich and the powerful « Kafila

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