The imbroglio surrounding Salman Rushdie’s participation at a literature festival last month was illustrative in the way politics has been conducted and the free speech debate in India has played out over the years. The whole episode was predictable to a fault. Employing wily statecraft and plausible deniability, the Congress-UPA government achieved its political objectives of stopping Rushdie from attending the event. Speaking at the same festival, Outlook editor Vinod Mehta, a self-described Left-Liberal, berated the Congress party for its shameless communalism in using the episode to court Muslim votes in poll-bound Uttar Pradesh.

There was the customary online petition imploring the government to remove the ban on Rushdie’s book. Television channels conducted debates on the state of free speech in India. It didn’t matter that one of the television journalists pontificating on free speech had bullied into silence critics of this journalist’s own work, by employing legal tactics not dissimilar to those used by opponents of the artist MF Husain’s work. Another leading television journalist tweeted that the right to free speech did not include the right to offend, and the real question was who should decide what is offensive.

This wasn’t the first attack on free speech in recent times, and certainly isn’t the last. Since independence, movies and books have been banned under pressure from various interest groups in various states all over India. The list is simply too long to reproduce in full, but includes movies such as The Da Vinci Code, Jodhaa-Akbar, Aaja Nachle and several books deemed offensive to Muslims, Hindus, other identity groups and members of the Nehru-Gandhi family. In a new low last year, columnist Anish Trivedi who had supposedly written an ”anti-caste” article was convicted and jailed for 6 months by a court of law. The world’s largest democracy can also take credit for jailing writers like a totalitarian state.

All these instances are assaults on free speech. No celebrity writer or journalist protested these attacks on free expression. This is because free speech and its importance to a democracy isn’t widely understood or championed in our country. Salman Rushdie said it best when he said after he had been prevented from visiting his home country, ”I have been fi@ghting this battle, not just on behalf of myself, not just on behalf of The Satanic Verses, but on behalf of the great principles that have evolved here; the principles of freedom of expression, which is the principle on which all other democratic freedoms rest. If you don’t have freedom of expression, you don’t have any other freedom. That’s the corner stone and the bedrock of any free society and that’s why I fight this battle.”

Free speech is about preventing the state both from forcing individuals to remain silent and from forcing individuals to say something they do not want to. The right to offend is fundamental to free speech. Free speech is also about the state protecting individuals from being at the receiving end of physical attack from others. Such protection is needed especially for ”offensive” speech. Let us go back to a debate from our own Parliament, and look at a historical case study from a foreign land many Indians love.

Clarence Brandenburg, a leader of the racist Ku Klux Klan, was allowed to take out inflammatory rallies by the US Supreme Court in the landmark Brandenburg vs Ohio case - just one year after the tragic assassination of civil rights champion Martin Luther King Jr. The Court ruled that so long as any speech is both unintended and unlikely to incite imminent lawless action, it must not be curtailed. The court held that the intent of violence, the probability of violence, as well as the imminence of violence, all three must be present. Mere abstract advocacy of violence, much less hate, cannot be proscribed. Therefore, what is ”hate speech” in other countries, in American jurisprudence, qualifies as protected speech.

The difference in the way the Indian Constitution and the American Constitution guarantee free speech is telling. Article 19 Clause (1) (a) of India’s Constitution states that all citizens shall have the right to freedom of expression, and then goes on to list various ”reasonable restrictions” on this freedom, proposed by India’s first Prime Minister Jawaharlal Nehru. This First Amendment was supported by B.R Ambedkar, and staunchly opposed by S.P Mookerjee, who went on to found the Jan Sangh. Mookerjee called out Nehru’s intolerance as ”scandalous”, to which Nehru retorted that those who thought the amendment curbs liberty were liars. Nehru told Parliament that the free press was ”poisoning the minds of the younger generation”.

The ”liberal” icon Jawaharlal Nehru, feted by eminent historian Ramachandra Guha as a man who ”respected the press”, succeeded in pushing through the Amendment, including vague generalities like ”public order”, ”decency or morality”, ”friendly relations with foreign states” and other homilies in the interest of which restrictions on speech could be imposed. TIME Magazine, reporting on the issue, said that Prime Minister Nehru was more interested in muzzling criticism of his foreign and domestic policy from newsweeklies such as Blitz and Current published at the time in Bombay. With the passing of the First Amendment, free speech became constitutionally restricted in India.

In stark contrast to India’s caveat-filled constitutional right to free speech, the First Amendment to the American Constitution simply states ”Congress shall make no law...abridging the freedom of speech, or of the press...”. India’s Constitution doles out “rights” to individuals. The American Constitution assumes pre-existing rights and freedoms, and places limitations on the state instead. For the former, the state is supreme with practically no constitutional limits because of all the broad caveats. For the latter, the state is but a constitutionally-restricted agent of the individual. For the former, the onus is on the individual to show that he is within his “rights” to do something, in contrast to the latter where the government has to prove that it is constitutionally valid to regulate an undeniable freedom.

This is the difference between lip-service to freedom, and true freedom. The State should exist merely as a guarantor and protector of rights that individuals inalienably have. The true battle free speech votaries should fight is to eradicate the outdated, colonial laws and statutes governing free speech in India and to argue for the dissolution of patronizing, anachronistic institutions such as the Censor Board.

The defense of free speech as the capstone of individual rights should not be merely on normative or utilitarian grounds. The defense must also take into cognizance prosaic realities of politics. The American First Amendment causes heart-burn to many Americans when their identity is under relentless attack. Nonetheless, they have the ”comfort” that their government is not permitted to choose winners and losers in the public square and everybody can respond with equally fervent speech. This is not the case in Europe where, in the name of a dubious multiculturalism, a Geert Wilders is banned, but an Anjem Choudary is allowed to say anything - on state benefits no less.

The double standard has been witnessed in India too. The pro-Hindutva Right’s gripe wasn’t just with MF Husain’s paintings, but it was also indignation at the fact that art deemed offensive to other religions had been enthusiastically banned by the government to garner votes. Social networking pages against some leaders of the governing coalition have been taken down, while those criticizing opposition leaders remain. Competitive intolerance results when opportunistic governments choose what to censor based on their political preferences. Even if we had a Solomon to sieve art into the sacred and the sacrilegious, it would inevitably be perceived as unfair by one party or the other. That is why it is better to allow all speech in the public sphere. Any restrictions on the grounds of public order or security should therefore follow something like the Brandenburg standard.

Curtailing speech that violates somebody’s privacy is different, as that is less ”speech” and more a violation of implicit trust. Libel is more complicated, but libel prosecution must rely on the defense of truth, with burden of proof on the person suing, rather than complaints about sullied reputations. Moreover, the threshold for suing on grounds of privacy violations or libel would be higher for politicians, celebrities and other public figures. Moreover, free speech absolutism does not necessarily support Wikileaks that can compromise national security. No liberal doctrine says that speech cannot be curtailed by contracts entered into of one’s own volition, and such ”stolen information” can similarly be privileged.

Above all, we all must grow thicker skins. As former Prime Minister AB Vajpayee had said, reply to a book with a book - if you do not like what someone says or writes, consider saying or writing something more persuasive. Truly liberal principles would stop us from seeing fellow citizens as Pavlovian dogs who get violently provoked by any religious or socio-political speech. Individual freedom implies individual responsibility and those who initiate violence must be held responsible for their actions - not those who offended them. We must never forget Benjamin Franklin’s warning - “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety”.

(Rajeev Mantri is director of GPSK Investment Group and Harsh Gupta is director of Catallaxy Finance.)