Home / Opinion / A limited right to free speech is not enough

Percy Bysshe Shelley famously called poets the “unacknowledged legislators of the world". Christopher Hitchens—part of the cohort of writer provocateurs that emerged from England in the 1970s (Salman Rushdie, Martin Amis and James Fenton were some of the others)—would echo Shelley almost two centuries later in Unacknowledged Legislation: Writers in the Public Sphere, arguing in favour of the role played by writer in the politico-cultural life of a state. It is an ideal with a long civilizational history.

Rushdie, as it happens, was cited in the judgement handed down by the Madras high court on Tuesday granting relief to Tamil author Perumal Murugan. It is a welcome redressal of the persecution Murugan has faced for over a year now for his novel Mathorubhagan (translated into English as One Part Woman), depicting the social pressures exerted upon a childless couple in Tiruchengode, Tamil Nadu—and the wife’s eventual participation in a religious festival where sexual intercourse with strangers is permitted in order to conceive.

As per the caste-based groups that protested against his book, the political and cultural ambit of writers like Murugan should be circumscribed by easily bruised public sensibilities. And state functionaries seemed to agree with them, coercing Murugan into acceding to the protesters’ demands in the name of law and order. Here, however, is the real problem: the judgement notwithstanding, India’s legal framework actively enables such an approach when it comes to freedom of expression.

Section 295A of the Indian Penal Code (IPC), introduced in 1927, is aimed at punishing writers who offend the religious beliefs of any group. At the time, Lala Lajpat Rai and Muhammad Ali Jinnah spoke against it, arguing that it would be used to obstruct scholarly research and social reform. The decades have proved them right. The first amendment to the Indian Constitution did more damage, hedging the freedom of expression guaranteed by Article 19 of the Constitution with ambiguously worded caveats that are open to a range of interpretations and misinterpretations. Jawaharlal Nehru and B.R. Ambedkar, among others, allowed the exigencies and fears of post-Partition politics to subvert a tenet of liberal democracy, Shyama Prasad Mukherjee’s opposition notwithstanding.

In a perverse way, the Madras high court judgement reveals the extent of the damage this has done to the manner in which the right to free speech is perceived in India at every level—public, political and judicial. Laudable as the verdict is, the bench arrives at it by examining Murugan’s novel and the charges levelled at it within a framework of religious sentiment, obscenity and intrinsic value and original intent of a work of art. It finds in Murugan’s favour on each of these counts—but the mere fact of judging a work of art on these criteria reinforces their validity. It is an implicit acknowledgement that banning a book or a movie would be justifiable if it falls afoul of any of them.

This is incompatible with the spirit of free speech. And it leaves individuals exercising their right to expression at the mercy of public opinion and judicial interpretation. For every Murugan, there is a Devidas Ramachandra Tuljapurkar, against whom the Supreme Court upheld charges of obscenity last year for writing an “objectionable" poem about M.K. Gandhi. Taslima Nasreen, Rushdie, M.F. Husain, M.M. Kalburgi, Deepa Mehta—the list of individuals whose rights have been encroached upon is extensive. The Supreme Court’s 1989 judgement placing the burden of maintaining law and order upon the state—a common excuse for caving to offended groups—has had little practical effect.

The right to free speech is the right to offer offence. Libel and slander laws exist to offer reasonable recourse to those who believe they have suffered from the exercise of that right. No other restrictions can truly be justified; it is well past time the relevant provisions in the IPC and Constitution were revisited. Shelley’s unacknowledged legislators have been let down by their elected counterparts in India.

Should the right to free speech be limited? Tell us at views@livemint.com

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