PERILOUS ASSAULT

By Inderjit Badhwar

During the many years I spent in America, starting in the mid-1960s, American friends, and mostly without any particular malice, would taunt me about the shame of Indian poverty and people starving to death in famines. This is a peculiar American and equally, a European trait. For the Americans, whose values are puritanical and who survived the economic havoc of the Great Depre-ssion and came out richer and smiling, poverty is not only a curse but an immoral state of being—a scourge that can and should be banished.

In those early years, there was no burgeoning Indian middle class, a fistful of millionaires, and India often lived a shameful ship-to-mouth existence on American wheat supplies given virtually free under the PL-480 program. “Basket case India”, as we were often called, even then suffered from dreadful famines, many of which I covered as a reporter for The Indian Express.

The oft-repeated official line which I would repeat to explain away India’s wretchedness was that we were a “developing country,” robbed of our wealth and driven to destitution by the depre-dations of the extortionist British Raj and so on. Our detractors would argue that the way out may be firmer governance (read “dictatorship”), something economist Gunnar Myrdal hinted at in Asian Drama.

And here’s where I would score for India. I would point out that while post-war Europe had broken up or sprouted hideous dictatorships, and India’s neighbors had turned into Banana Republics, India, despite its grinding poverty and after having faced the butchery of Partition, had refused to sell its essentially democratic soul to totalitarianism. We had remained adamantly free —free to speak our minds on the streets, free to excoriate our government, and free to express ourselves through books, newspapers, parliament, and the independent judicial system.
Tagore’s dream, “where the mind is without fear and the head is held high…”, had captured the imagination of Indians and that in itself constituted the wealth of this nation. It was not measurable economic bounty but an investment in the quality of life index, which, one day, would be measured against GDP growth and similar indices of progress established by the IMF and World Bank.

As a rule, this was a face of India that was universally admired and lavishly praised. Today, a paradox has emerged. While the world is recognizing this once “basket-case” nation as a cradle of technological advancements, mounting surpluses, food self-sufficiency and a thriving middle class (despite huge economic disparities) and ranking it among the fastest growing economies, the country is also facing universal condemnation for restraints on freedom, for taking a step back from the qualities for which India was praised when it was a hungry, starving land.

I am reminded of the criticism that India faced during the Emergency. Other nations like Latin American dictatorships or Pakistan would not attract similar denunciation of the curtailment of democratic freedoms because it was alien to their political culture. Mrs Indira Gandhi was singled out precisely because she and her family had tenaciously encouraged and upheld a free system that had enthralled the liberal world. What came under widespread censure from the international admirers of India was press censorship which included the expulsion of BBC stalwart Mark Tully, a die-hard Indophile, for his reporting on the Emergency.

While the world admires us for technological and economic miracles, it’s also noticing our growing intolerance.

It was ultimately the bad press that India, and particularly Mrs Gandhi, received internationally, a close friend of hers living in New York once told me, that persuaded her to lift the Emergency rather than any domestic compulsions. She was, after all Nehru’s child, and that’s how she wanted to be remembered.

Today, while Prime Minister Modi enjoys the admiration of world leaders and most Indians for his determination to make India into the Golden Bird of The World once again, he, along with India, are simultaneously facing flak for seeming to encourage growing intolerance and a neo-ban culture under India. The most talked about issue is the panning of the BBC documentary, India’s Daughter, revealing the mindset of the murderer-rapist of Nirbhaya. The most shameful and shaming example of this was the devastating irony of the world’s leading women activists and artists like Meryl Streep and Hillary Clinton attending and cheering the premier of this documentary in New York, while BJP stalwarts and India’s censorship babus were sticking by the ban.

Wrong precedents Indira Gandhi ended Emergency only after she came in for criticism from the West

Katherine Mayo’s book, Mother India, has come full circle with India’s Daughter, as I will explain later. Mayo was an American journalist who, in 1927, published an excoriating indictment, often reprehensible for its inaccuracies, and replete with racial bias, of India, its treatment of women, the caste system, public hygiene and superstitions. She argued that the civilizing influence of imperial rule was the only answer.

According to a brilliant paper on this subject from the University of Wolverhampton (ww.wlv.ac.uk), there were massive demands for banning that book (it’s not available in India). Nationalist men called it an attack on Indian womanhood, but according to Jayawardena (1995), it was mainly an attack on the behavior and customs of men. No Indian women published attacks on her book.

Liddle & Joshi (1986) quote a 1927 issue of the London journal, New Statesman and Nation, which said that Mother India revealed “the filthy personal habits of even the most highly educated classes in India—which, like the degradation of Hindu women, are unequalled even among the most primitive African or Australian savages”. It went on to say: “Katherine Mayo makes the claims for Swaraj (self-rule) seem nonsense and the will to grant it almost a crime.”

There was massive uproar from Indian nationalists and patriots to ban the book. But Mahatma Gandhi, appalled though he was by its contents and tone, is quoted by journalist Sandipan Deb as saying: “It is the report of a drain inspector sent out with the one purpose of opening and examining the drains of the country to be reported upon, or to give a graphic description of the stench exuded by the opened drains.”

Could this stench, in some perverse way, have had the effect of an antidote? According to historian Mrinalini Sinha: “The controversy had brought the nature of the colonial state, no less than the social condition of India, under intense international public scrutiny. The subsequent mythologi-zing of Mayo’s contribution in Mother India, by imperialists, imperialist-feminists, and Indian nationalists alike, obscured the mixed results of her imperial propaganda.”

Sinha concluded that Indian Nationalist leaders had to accept some of Mayo’s criticisms. “Her more serious nationalist critics recognized immediately that they could not afford to deny the prevalence of the backward social practices that Mayo had found in India. Many leading nationalists and social reformers in India, such as Gandhi, Jawaharlal Nehru, Sarojini Naidu, and KK Natarajan, were thus careful to acknowledge the need for social reform in India even as they criticized Mayo’s imperialist agenda”. (Sinha 2000)
One positive outcome, the Wolverhampton report says, was the 1929 Child Marriage Restraint Act, which set the minimum age of marriage at 18 for women and 21 for men.

This most reviled of all books, criticized for the right reasons because of its Anglo-Saxon racialism, nonetheless, gave a boost to worldwide feminist concerns for the plight of Indian women. One of the obvious results of this has been the ferocity and unity and political activism by Indian women, who persuaded Indian men to join them in condemning the Nirbhaya gang rape and murder. These women rocked parliament, created new, tougher anti-rape laws and played a stellar role in sensitizing India to cruelty against women.

The BBC documentary is just the opposite of the Mayo book. While Mayo’s Mother India condemned Indian society and, by default, galvanized awareness, Udwin’s India’s Daughter celebrates and glorifies the ascent and power of Indian social awareness which created ripples of admiration for India in its march towards greater human rights and fight against misogyny and injustice.

And we ban this film?

Are we living in the age of Torquemada? Does the Right Wing in India believe that Modi has given them the right to ban, attack, cut, burn anything that displeases their narrow mindsets? The censorship instinct is not peculiar to India. DH Lawrence faced censorship in England. Jean Genet in France. Henry Miller in the US. Salman Rushdie. Wendy Doniger. Taslima Nasreen.

Indian journalist Govind Thukral writes that the Baron of the Ban in India is self-styled protector of Indian culture Dinanath Batra and his Shiksha Bachao Andolan Samiti, the chief petitioners against Wendy Doniger.

Now that Batra has tasted blood, writes Thukral, he hopes to achieve more with the coming of the Modi government. He has already:

• Got the court to remove “objectionable passages” about Lord Mahavira and Jains from NCERT textbooks.
• Objected to 75 passages linked to Rana Pratap, Shankaracharya and Arthashastra, among others, in NCERT books. The court ordered removal of 67.
• Led the group objecting to inclusion of AK Ramanujan’s essay, Three Hundred Ramayanas in the reading list of DU history undergraduate course. DU dropped the essay.
• Protested and forced the government to dilute sex education curriculum.
• Filed a case against “objectionable paintings” by MF Husain.
• Got Calicut University to drop the poem, Ode to the Sea from English textbooks in 2013, alleging its author, Ibrahim al-Rubaish, was a “terrorist”.

Politics has played a large role, too, in ensuring the freedom of expression. Had anybody else, apart from Dalit movement leader BR Ambedkar, had the temerity to write The Riddles of Rama and Krishna, he would have been hounded out of the country as was MF Husain. As the book’s blurb explains: “Through this booklet Ambedkar questions the authenticity of so called Lord Rama and Krishna being worshipped as God by Hindus. He highlights numerous erroneous activities of Rama and Krishna that shakes people’s conscience to accept them as Lord.

 AK Ramanujan’s work Three Hundred Ramayanas was withdrawn from the reading list of Delhi University

 He quotes Valmiki’s Ramayana in which Ram’s cunning acts of killing Bali, Ravana and Shambook has been exposed.” Writer Dilip Simeon wrote in The Indian Express that Shirin Dalvi, the editor of the Mumbai edition of Urdu newspaper Avadhnama, has become the latest victim of the running saga over cartoons. Since mid-January, when she unwit-tingly published a Charlie Hebdo cover, she has been slapped with criminal charges, her newspaper shut down, its employees rendered jobless, and she herself forced underground. “The police have opposed anticipatory bail on the ground that it would cause a law and order problem (aren’t they paid to deal with such matters?).

“The man who filed the complaint heads an Urdu journalists’ body. He is cited as saying, ‘I filed a case against her and I am happy that she was arrested. If she was in an Islamic state, she would have been beheaded as per law.

At war with free speech Dinanath Batra, who is behind the banning of many books in the last few years

“That the freedom of speech could be so flagrantly attacked in the name of religion is by now a common experience…. But that someone could wish a horrible death to another human being is itself highly offensive to many of us — and this person thinks it earns him merit in the eyes of Allah. I have no access to the mind of the Almighty, but I can venture to suggest that Allah is more considerate than some of his followers.”
“Hurt sentiment,” writes Simeon, has become the cutting edge of tyranny. “It is the perpetually available political tool for preparing ‘spontaneous’ mob violence, violating the law, mobilizing illiberal movements and intimidating everyone—especially within the preferred community—who disagrees with communal politics. It becomes worse when responsible individuals glamorize this fake and vicious form of piety.”

One of the most celebrated cases on censorship and the ban culture is State of Uttar Pradesh vs Lalai Singh Yadav (1977 AIR 202, 1977 SCR(1) 616, decided by the late Justice Krishna Iyer. Every Indian, every politician should read every word of it in order to understand the primacy of free speech even in the context of licentious intention to hurt:

The muzzled voices Wendy Doniger’s book The Hindus was recalled by publishers,

Briefly, the appellant Government passed an order under Section 99-A of the CrPC, for the forfeiture of a book entitled Ramayan: A true Reading in English and its translation in Hindi, by Periyar EVR of Tamil Nadu, on the ground that the book intended to outrage the religious feelings of a class of citizens of India, namely, the Hindus. There-upon, an application was made by the respondent publisher of the book under Section 99-C of the Code to the High Court, which by its special Bench, allowed the application and quashed the notification on the ground that the State Government had failed to state the grounds of its opinion as required in Section 99-A of the Code.The appellant contended that a specific statement of grounds by the Government is not a mandatory requirement under Section 99-A of the CrPC, and that it can be made by implication.

Dismissing the appeal, the Court HELD:
To relieve the State from the duty to state grounds of forfeiture, is to permit raptorial opportunity for use of such power over people’s guaranteed liberty. Section 99-A says that you must state the ground and it is no answer to say that they need not be stated because they are implied. An order may be brief but not a blank. A formal authoritative setting forth of the grounds is statutorily mandatory. Section 99-C enables the aggrieved party to apply to the High Court to set aside the prohibi-tory order and the Court examines the grounds of Government given in the order. The Court cannot make a roving enquiry beyond the grounds set forth in the order and if the grounds are altogether left out, the valuable right of appeal to the Court is defeated. [610G-H, 620B-C, G-H]

Some cases are apparently innocent on their face and this appeal is one such. It may harbour beneath the surface, profoundly disturbing problems concerning freedoms, the unfettered enjoyment of which is the foundation for a democracy to flourish.
I reproduce verbatim some epic passages of the judgment delivered by Judge Iyer:
“Sidestepping this issue the High Court, by majority judgment, struck down the order on the short ground that ‘the State Government did not state the grounds of its opinion as required in s. 99A of the Code. For that reason alone the petition has to be allowed and the order of forfeiture set aside in Court’.

“The anatomy of s. 99A falls to be studied at the threshold so that the pathology, if any, of the impugned order may be discovered. Shorn of phraseological redundancies (from the point raised in this case), the pertinent components of the provision, empowering forfeiture of materials manifesting written expression by citizens, are threefold, as flow from a reproduction of the relevant parts: “99-A(1) —Where—
“(a) any newspaper, or book … or
“(b) any document, wherever printed, appears to the ‘State Government to contain any …. or any matter which promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India or which is deliberately and maliciously intended to outrage the religious feelings of any such class by insulting the religion or the religious beliefs of that class, that is to say, any matter the publication of which is punishable under Section 124-A or Section 153-A or Section 295-A of the Indian Penal Code, the State Government may, by notification in the official Gazette, stating the grounds of its opinion, declare every copy of the issue of the newspaper containing such matter, and every copy of such book or other document to be forfeited to Government…”

“The triple facets of a valid order therefore are:
“(i) that the book or document contains any matter;
“(ii) such matter promotes or is intended to promote feelings of enmity or hatred between different classes of the citizens of India; and
“(iii) a statement of the grounds of Government’s opinion.
“Thereupon the State Government may, by notification, declare every copy of the issue containing such matter to be forfeited.”
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“Fundamental freedoms of expression designedly imposed by the Code cannot be whittled down by the convenient doctrine of implication, the right being too basic to be manacled without strict and manifest compliance with the specific stipulations of the provision. After all fundamental rights are fundamental in a free Republic, except in times of national emergency, where rigorous restraints, constitutionally sanctioned, are clamped down. We are dealing with the Criminal Procedure Code and Penal Code and these laws operate at all times. We have therefore to interpret the law in such a manner that liberties have plenary play, subject of course to the security needs of the nation, as set out in the Constitution and the laws.

“Even so, counsel for the appellant contends that the references in the forfeited book, as indicated in the appendix to the order, are so loudly repulsive and malevolently calumnous of “Sree Rama, Sita and Janaka that the court must vicariously visualize the outraged feelings of the Hindus of Uttar Pradesh and hold that the grounds are written in the order in invisible ink. When we assess the worth of this submission we have to notice (a) the constitutional perspective, i.e., whether the basic freedoms are sought to be legally handcuffed; and (b) the existence of alternative possibilities of popular understanding of the prescribed publication which necessitate some statement of the circum- stances and the reasons which induced the government in the given conditions of ethos and otherwise to reach the opinion it has recorded.

“The State, in India, is secular and does not take sides with one religion or other prevalent in our pluralistic society. It has no direct concern with the faiths of the people but is deeply obligated not merely to preserve and protect society against breaches of the peace and violations of public order but also to create conditions where the sentiments and feelings of people of diverse or opposing beliefs and bigotries are not so molested by ribald writings or offensive publications as to provoke or outrage groups into possible violent action. Essentially, good government necessitates peace and security and whoever violates by bombs or books societal tranquility will become target of legal interdict by the State.”
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“The fighting faith of our founding fathers respected Mills’ famous statement and Voltaire’s inspired assertion. We quote:
‘If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind.’ (Mill in his essay On Liberty, pp 19-20: Thinker’s Library ed, Watts.) ‘I disapprove of what you say, but I will defend to the death your right to say it.’”
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“Section 99A of the Code, construed in this candescent constitutional conspectus, bears out our interpretation. In the interests of public order and public peace, public power comes into play not because the heterodox few must be suppressed to placate the orthodox many but because everyone’s cranium must be saved from mayhem before his cerebrum can have chance to simmer. Hatred, outrage and like feelings of large groups may have cryptoviolent proneness and the State, in its well-grounded judgment, may prefer to stop the circulation of the book to preserve safety and peace in society. No enlightened State, would use this power to suppress advanced economic views, radical rational criticisms or fearless exposure of primitive obscurantism but ordered security is a constitutional value wisely to be safeguarded if progressives and regressives are to peacefully coexist. This is the spirit of s. 99A of the Code. The actual exercise will depend not on doctrinaire logic but practical wisdom. While the American theory of clear and present danger as the basis of restriction on fundamental rights does not necessarily apply in India, the illuminating observations of Holmes J, serve to educate the administrator and Judge. In Scheneck vs US(1) Holmes J drove home the true test:

‘We admit that in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done… The law’s stringent protection of free speech, would not protect a man in falsely shouting ‘fire’ in a theatre, and causing panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evil that Congress has a right to prevent. It is a question of proximity and degree.’”
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“Before concluding, we clarify that we express no view on the merits of the book or its provocative vitriol. It depends on a complex of factors. What offends a primitive people may be laughable for progressive communities. What is outrageous heresy for one religion or sect or country or time may be untouchably holy for another. Some primitive people may still be outraged by the admonition of Swami Vivekananda: ‘Our religion is in the kitchen, our God is the cooking pot, and our religion is don’t touch me, I am holy’ (quoted at p. 339 by Jawaharlal Nehru in Discovery of India). The rule of human advance is free thought and expression but the survival of society enjoins reasonable curbs where public interest calls for it. The balance is struck by governmental wisdom overseen by judicial review. We speak not of emergency situations nor of constitutionally sanctified special prescriptions but of ordinary times and of ordinary laws.

Does the Right Wing in India believe that Modi has given them the right to ban, attack, cut, burn anything that displeases their narrow mindsets?

“The possible invocation of the powers under s. 99A of the Code of Criminal Procedure by various State Governments on several occasions induces us to enter a caveat. Basic unity amidst diversity notwithstanding, India is a land of cultural contrarities, co-existence of many religions and anti-religions, rationalism and bigotry, primitive cults and materialist doctrines. The compulsions of history and geography and the assault of modern science on the retreating forces of medieval ways—a mosaic like tapestry of lovely and unlovely strands—have made large and liberal tolerance of mutual criticism, even though expressed in intemperate diction, a necessity of life. Governments, we are confident, will not act in hubris, but will weigh these hard facts of our society while putting into operation the harsh directives for forfeiture. From Galileo and Darwin, Thoreau and Ruskin to Karl Marx, HG Wells, Barnard Shaw and Bertrand Russel, many great thinkers have been objected to for their thoughts and statements avoiding for a moment great Indians from Manu to Nehru. Even today, here and there, diehards may be found in our country who are offended by their writings but no Government will be antediluvian enough to invoke the power to seize their great writings because a few fanatics hold obdurate views on them.”

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“Harold Laski, who influenced many Indian progressives, in his A Grammar of Politics states a lasting truth:
‘There is never sufficient certitude in social matters to make it desirable for any government to denounce it in the name of the State. American experience of the last few years has made it painfully clear that there will never be present in constituted authority a sufficient nicety of discrimination to make certain that the opinion attacked is one reasonably certain to give rise to present disorder.’”
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“‘Almost always—there are rare cases in which persecution has proved successful—the result of free expression is such a mitigation of the condition attacked as to justify its use; almost always, also, to prohibit free speech is to drive the agitation underground. What made Voltaire dangerous to France was not his election to the Academy, but his voyage to England. Lenin was infinitely more dangerous to Czarist Russia in Switzerland than he would have been in the Duma. Freedom of speech, in fact, with the freedom of assembly therein implied, is at once the catharsis of discontent and the condition of necessary reform….’”
A note of circumspection. In the current context of constitutionally proclaimed emergency, the laws have perforce to act in the narrow limits inscribed in the Emergency provisions and this decision relates to the pre-Emergency legal order. We dismiss the appeal.

Post Script: In Sorrow
It is with deep sorrow that India Legal mourns the death of Vinod Mehta, former editor of Outlook, The Pioneer, Indian Post, Independent and many others. He was one of the greatest champions of free speech in India. He took a deep interest in legal issues. We will always miss him as a brave independent voice.