The image is beautiful in its simplicity. A man rises from the crowd. He is an ordinary man, wearing ordinary clothes; the people surrounding him are looking at him and his face is aglow as he speaks. They too are dressed like him, in ordinary clothes. We cannot tell what he is speaking about, nor whether those around him agree with him. But they sit there, listening, letting him have his say.

Master stroke: Freedom of Speech (1943) by artist Norman Rockwell, an oil on canvas, first used as a story illustration for The Saturday Evening Post in 1943. Licensed by Curtis Publishing, Indianapolis, US; courtesy The Norman Rockwell Museum, Massachusetts, US (NRM)

That painting, part of the permanent collection of the Norman Rockwell Museum, Massachusetts, US, is among the four iconic works the American artist Norman Rockwell created, giving meaning to the freedoms Americans were fighting for, and considered worth defending, during World War II. Freedom of speech—without fear, as an equal—was considered a quintessential American virtue, like the other works in the series—freedom from want, freedom from fear, and freedom to worship.

When the Universal Declaration of Human Rights was drawn up in 1948 immediately after the war ended, those four freedoms became the cornerstones of the international Bill of rights everyone is supposed to enjoy, irrespective of nationality, religion, gender, or any other cultural construct separating people.

This is not to suggest that respect for freedom of speech is absolute in the US—there is intolerance. But as far as constitutional rights go, the US, through its first amendment, goes further than almost any other country, in ensuring that the right is protected—by restraining the State from making any laws that restrict that freedom. Almost everywhere else, there is freedom of speech, and then there are restrictive caveats.

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Rockwell had painted the scene at a New England town hall, and in notes accompanying his work, he had said that the man who actually spoke had nothing substantial to add to the debate and was possibly a bore. Now picture a similar scene in India: Assume a similar person standing up to have his say in the equivalent of a town hall meeting here, and the chances are he will be shouted down. Or, people will try to drag him back to his seat. If he says things that some—not the majority, only some—in the crowd don’t agree with, he might become the target of paper arrows, paperweights, abuse, catcalls, and in a bigger public meeting, even stones. He might be roughed up. And if he challenges the political orthodoxy—the khap panchayat, the village elder, the caste leader—his life could be in danger. This, in spite of the Indian Constitution enshrining freedom of speech—even if only up to a point. Under Article 19(1)(a) all citizens have the right to “freedom of speech and expression". But almost immediately, the State places “reasonable restrictions" on that right. Those restrictions cast a wide net—the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation, or incitement to an offence.

This is an absurdly long list: Is anything left worth writing about? Behram Contractor, the gifted columnist who wrote under the pseudonym Busybee, said about the Emergency of 1975-77 that the only safe topics one could write about were cricket and mangoes. Disaggregate those caveats, and you find that under the pretext of protecting the integrity and sovereignty of India, the State can prevent a writer from suggesting that maybe Kashmiris have a case for azadi, or freedom. Under the guise of ensuring security, some critics of Arundhati Roy want her to be silenced. Now Roy’s critique of the Indian State is deeply flawed, but she has the right to challenge the State over its neglect of parts of India where rights are abused routinely, the parts which are now beyond the reach of the administration and under the sway, if not control, of Maoists. Using the excuse of maintaining friendly relations with foreign states, the government can restrain criticism of barbaric practices perpetrated in the name of Islam in West Asia, and arguably, can curb the freedom to criticize the actions of Israel over its handling of the politically motivated aid flotillas.

Once you think of nebulous terms such as “public order", “decency", and “morality", it becomes an open season for intolerant governments and busybodies to impose restrictions. Here, two other parts of the law place even stronger restraints. Section 295(A) of the Indian Penal Code makes it a criminal act to “outrage religious feelings" with malicious intent. And section 153(A) outlaws “promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony".

These clauses have provided busybodies of all faiths, all castes, and almost all ideologies an opportunity to claim offence and feign injured feelings, to seek restraints on writers, artists, actors, film-makers, and other public personalities. And the moment someone claims offence, the State asks the one who speaks to swallow her words, instead of telling the one who claims offence to get a life, because otherwise the one claiming offence will take the law in his hands. Maintaining law and order becomes the priority, and adult citizens, who have the right to drive a car, to buy and consume alcohol, to marry, to vote in and to stand in elections, and to purchase property, are suddenly seen as unfit infants, who must be protected from imagined offences. The State becomes the nanny; we become children in a kindergarten.

That has emboldened the intolerant: The Hindu Janajagruti Samiti wants Slumdog Millionaire banned because that film shows a Hindu-Muslim riot in which a boy dressed as Ram looks menacingly at the protagonists, who are Muslim children. In 2007, Uttar Pradesh and Punjab ban Aaja Nach Le, Madhuri Dixit’s comeback vehicle, because the song Bole mochi khud ko sonar hai (the cobbler thinks he is a goldsmith) implies that cobblers are inferior to goldsmiths, and is hence implicitly derogatory. Distributors in several states can’t release Jodhaa Akbar because the fictionalized film about the Mughal offends Rajputs: UP, Rajasthan, Haryana and Uttarakhand ban the film. Christians have campaigned against Martin Scorsese’s The Last Temptation of Christ, and later they protest The Da Vinci Code. And then there is the celebrated case of the renowned painter, Maqbool Fida Husain, forced to live in exile, because his art upsets some Hindus. And India has the dubious honour of being the first country in the world to ban Salman Rushdie’s The Satanic Verses.

There’s more: In 1989, a businessman sought a ban on Govind Nihalani’s moving film about the violence during Partition, Tamas, based on Bhisham Sahni’s novel, because the complainant thought the film would ignite communal tensions. Lawyers protested against New Delhi Times (1986), in which a journalist tells his wife, a lawyer, that all lawyers are liars. The police objected to their representation in Ardh-Satya (1983). And barbers managed to get Shah Rukh Khan to remove the word “barber" from the title of his film, Billu.

The Maharashtra Navnirman Sena managed to get a popular sweet shop in Mumbai to change its name from Karachi Sweet Mart to Jai Sri Krishna Sweet Mart, and the Shiv Sena in Maharashtra and Sri Ram Sene in Karnataka have attacked young couples celebrating Valentine’s Day, or women going to pubs, which is a restriction on a form of expression. Mumbai academic Pratibha Naithani’s Ashlilta Virodh Manch campaigns against films, TV shows, billboards and advertisements which, in her view, are obscene. Her success is at least partly because the State acquiesces in such moral bullying.

The fear of the mob is so palpable that even after a court order lifting restrictions on James W. Laine’s book on Shivaji, bookshops are unwilling to stock it. They remember that Laine’s associate, Shrikant Bahulkar, was physically assaulted, and the renowned Bhandarkar Oriental Research Institute, where Laine did some of his primary research, was vandalized and rare manuscripts destroyed.

How did we come to this? India still deals with crime and punishment from the Indian Penal Code which was drawn up in 1860. It was enacted within years of the Sepoy Mutiny of 1857, which led to the East India Company making way for Queen Victoria to assert authority over India. The paramount concern for the government then was to create laws that helped administrators and judges to manage the outwardly chaotic nature of the Indian society. The revolt of 1857 had shocked them; they wanted to eliminate potential trouble. This meant laying down clear rules to calm the passionate Orientals.

Talking about controversial things became taboo, and if anyone felt offended, the State was ready to restrain the offender. Since outraged religious feelings could lead to law and order problems, there was now a law to ban that; since the government would not easily know when an outrage was committed, any community could claim offence, making it easier for the unelected district collectors to ban particular performances.

And today, those laws restrict Indian freedoms. Argumentative Indians? Maybe—so long as the argument is about cricket, or cinema, or perhaps mangoes. As the injunction says in an Irani restaurant in Mumbai, discussion about religion and politics is out of bounds. But you can talk about cutting chai and bun muska, while the owner’s father’s portrait looks over you, deciding what you can speak and think.

Salil Tripathi writes the fortnightly column Here, There, Everywherefor Mint.

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