The Telegraph
Sunday , March 2 , 2014
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- Why India’s hate speech laws need to change

The uproar over Wendy Doniger’s book, The Hindus: An Alternative History, makes a few things absolutely clear. One is that Indian laws governing freedom of speech and the management of community sentiments need to be reconsidered and calibrated with respect to one another to finally dispense with their outdated and counter-productive colonial character. Second, practicing and believing Hindus and Muslims who nevertheless do not subscribe to the fundamentalist identity politics of the right-wing element in either community need to step up and make themselves heard in defence of the Constitution, a liberal framework, and a society where relationships between individuals and groups are conducted on the basis of universal adult citizenship, civic rights and responsibilities, and a secular public sphere. Third, these same citizens, who may or may not be religious in their private life, should also weigh in on matters concerning the representation and misrepresentation of Hinduism, Islam and other faiths, which sectarian bigots imagine are exclusively theirs to profess, interpret and defend.

The fourth lesson is that the criteria for determining the quality and viability of intellectual, scholarly and artistic works need to be left to the appropriate institutions of a disciplinary character. Protocols for judging an essay, book, painting, film, or whatever other type of work should not be allowed to fall outside the purview of experts and practitioners into the hands of self-appointed authorities who have absolutely no training, competence or locus standi in matters of scholarship, art or intellectual life. Fifth, there needs to be a widespread public acknowledgment of the fact that fundamentalist, fascist, intolerant and anti-Constitutional tendencies afflict all major and minor religious communities in India in equal measure.

We need to be equally outspoken against them all, and not tip-toe around some bigotry because it emanates from minority communities while railing exclusively against the majoritarianism of the Hindu Right. And finally, sixth, we need to become more alert to the religious fundamentalism and primordialist identity politics of non-resident Indians, whether Hindu or Muslim. Having left India for a variety of political dispensations, these NRI groups then meddle in India’s pluralist, tolerant and secular ethos in a way that is destructive and completely out of touch with our history of living with diversity, difference and piety at the same time.

If we look at a range of texts that have been the subject of actual or attempted censorship in India, say in the past 10 years, we find all kinds of essays or books, topics, authors, publishers, state jurisdictions, political regimes and ideological climates in which such incidents have occurred. The only common thread is the plinth provided by India’s laws that govern such matters as hate speech, the sentiments of identity-based groups, the incitement of communal hatred and the maintenance of communal harmony. No one is arguing that in the world’s most diverse country, we can do away with laws that enforce mutual respect and sensitivity between communities, curb entrenched forms of insult, discrimination and humiliation, and minimize inter-group conflict.

But the fact remains that such laws also have many weaknesses in their present form: first, the circumstances of their birth under the legal compulsions of colonialism, followed by their fatal vulnerability to political manipulation, and most importantly, their deleterious impact on and interaction with other laws, those allowing freedom of expression and protecting free speech. If respect and freedom are placed on a scale, then in our country, respect seems to come out heavier than freedom. This is not necessarily a good thing. If it is, then we at least need a thorough public debate and judicial review to persuade those of us who have our doubts as well as those who have suffered the very real consequences of an inherent tendency in our legal system to offer the prospect and possibility of censorship and suppression as the answer to real or imagined insults.

On February 13, together with a group of eminent scholars, I co- authored a petition to parliamentarians and the law minister asking that Sections 153A and 295A of the Indian Penal Code be subjected to thorough scrutiny, possibly leading to revision. Why? Because these, and other laws in the same family, are the ones most often used to threaten, sue and silence authors and publishers in the name of some or other community’s allegedly injured sentiments. The community in question could be Hindu or Muslim or Dalit or any other; the author could be Indian or foreign, male or female; the publisher could be X,Y, or Z; the book could fit the description of religious studies, history, literature, non-fiction or indeed any genre. Our petition — and a subsequent public statement we made on February 23 — was occasioned by Wendy Doniger’s book, The Hindus: An Alternative History, first published and subsequently withdrawn by Penguin Books. But in truth Doniger, her book and Penguin’s actions, good or bad, are all incidental to the larger issue to which we wish to draw attention.

The point is that in India it appears that the legal backdrop against which books are set is already always skewed in such a way as to render them objects of suspicion, packed with malicious intent and the desire to harm others. This legal environment treats books (and art objects) as if they were land-mines waiting to explode in someone’s face. It is absurd to think about scholarship in this way, as though its very raison d’ętre was causing injury to readers. This is not why anyone writes books or does scholarly work, as I have argued at length very recently. I have even gone so far as to claim that there might be an occasional exception, but most works of serious scholarly or artistic merit cannot be produced at all without a fundamental moral commitment to human flourishing and a deep sense of social responsibility.

Ultimately, the need for legal reform in the related areas of hate speech, on the one hand, and free speech, on the other, goes to the very normative foundations of why we write and why we make art. We must be willing to discuss these matters in public fora and media outlets, because they are far from rarefied intellectual problems confined to the ivory tower. They are rather central to our conception of India as a democratic polity and a pluralist, tolerant, diverse and secular society; they impact our educational institutions and shape our homes and families; and they either enable us to get along together or cause us to fall to pieces in our uniquely complex and multi-dimensional context of living with difference.

We, the authors of the February 13 petition, are all professional historians, philologists and social scientists with anything from 20 to 50 years of training and work behind us (our group spans a little more than two generations). It is not our purpose to glorify or denigrate India’s past, which we make it our business to examine and critique on a daily basis in our own practice as scholars. We try as best as we can to understand South Asia, past and present. But we did say that one of the most remarkable features of India’s great systematic and literary traditions in the past was the capacity to encourage and engage in debate, and to thrive in the midst of linguistic surprises and philosophical challenges of the highest sophistication ever seen in human civilizations. India’s overwhelming legacy of language and thought has always been about argumentation, reflexivity, creativity and transcendence. No book was ever banned by the State, no writer exiled, no thought suppressed in India’s classical past. No form of intellectual life known to the human mind can you name that does not find its place under the Indian sun.

With this inheritance, we ask that Indians today too, take the trouble to counter bad books with better ones and overcome ideas they don’t like with ones that they do. But to run crying to the courts every time you read or see something that you don’t agree with is not only an undermining of Indian democracy, it is also a betrayal of our history of inter-religious and inter-sectarian dialogue and contestation. And a legal framework that leaves open the door for motivated, malicious and frivolous litigation of the type most recently inflicted on Doniger’s book — and that holds the defendant guilty until proven innocent — needs reconsideration and revision without further delay. IPC 153A and 295A might safeguard community sentiments, but if they do so by abridging liberty, then they should not be allowed to continue unchanged.