OFFEND, SHOCK, OR DISTURB: Free Speech under

the Indian Constitution.

SENTIMENT, POLITICS, CENSORSHIP: THE STATE
OF HURT

DIPANKAR MADAAN
B.A. LLB 5 YEARS
THE LAW SCHOOL, JAMMU UNIVERSITY
9055545837
dipankarmadaan_10@yahoo.com

These two books appear at a time when the Indian Republic is grappling with
new and menacing threats to the freedom of expression guaranteed to its
citizens by the Constitution. The threats are not just from the State, but also
from many non-State actors, who, of late, have felt emboldened to silence and
intimidate those who exercise their right to free expression, because of the
states connivance.
The book by Gautam Bhatia, a lawyer practicing in High Court of Delhi and a
visiting faculty, West Bengal National University of Juridical Sciences, is an
outstanding effort to simplify to the readers, the principles and theories used or
missed in our Supreme Courts judgments on freedom of expression, from the
beginning, on the basis of comparison with similar judgments from other
countries.
The results of the authors efforts are fascinating. The author takes note, right at
the beginning, of the yawning, almost insurmountable gap between law and
practice. Take sedition, for instance. It was left undisturbed on the statute
books upon the understanding that it is limited to speech that can cause harm to
public order. But, as the author shows, the executive and lower judicial
authorities have acted as if the Supreme Courts judgment in Kedar Nath Singh
v. State of Bihar (1962), which upheld the sedition law, but limited it to cases

involving harm to public order, never existed. Examples of action taken under
the sedition law, which the author gives are arrest of people for protesting
against a nuclear power plant, failure to stand up during the national anthem,
and for publishing a mocking cartoon of the founding fathers. There has not
even been an attempt to explain how any of these actions are remotely
connected to public disorder, the author says.
Freedom of speech is curtailed not by grand Supreme Court decisions
upholding (while restricting) the law of sedition, or prior restraints upon the
cinema, but by a thousand tiny cuts, on a daily basis until the hecklers veto
becomes a part of the fabric of lived reality, whatever the Supreme Court might
say, he argues.
A large number of speech-restricting provisions in our penal laws are classified
as cognizable offences under the Code of Criminal Procedure. This means that
the police are authorized to arrest suspected offenders without the requirement
of a judicially sanctioned warrant. Most of these cases, Bhatia says, never
come to trial, but the damage they inflict upon the actual working of the
freedom of speech in India is obvious.
Therefore, he suggests, if the State wishes to ban a book or a film, or block a
website, it should bear the burden of coming before a court and convincing it

that the restriction falls within the contours of Article 19(2). Alternatively, a
regime of heavy civil damages, enforceable against the police (or the State, as
the case may be) and effectively implemented, ought to be in place to provide a
significant disincentive for frivolous arrests, he writes.
In this book, Bhatia articulates his nuanced support to repeal of laws which
restrict free speech. It is important to know, he says, how erroneous were the
decisions of the Supreme Court, while upholding the sedition law, and Section
295A of IPC, which led to Penguin Books withdrawing Wendy Donigers book
on Hinduism. A thorough understanding of the law of free speech, he says, will
help to narrow the gap between the law and the practice.
The book is structured in such a way so as to ensure exhaustive treatment of the
subject. Starting with the background, the author moves on to an elaborate
discussion of the restrictions, which are sought to be justified on the ground of
public order, and sedition. Obscenity, hate speech, and censorship of film and
internet are covered in three chapters.
Defamation, privacy, contempt of court is covered in two chapters. Recent
issues like net neutrality, and copyright are covered in another chapter.

Bhatia discovers two broad streams of thought in Indian cases. One is the
moral-paternalistic vision of free speech, that is, the State believes that it is its
bounden duty to protect people from malign influences. The other is the
liberal-autonomous vision which believes individuals, as thinking, deciding
beings can choose for themselves how to lead their lives. To ban speech,
according to the latter school, is to insult the autonomy both of the speaker, and
of the listener. The latter school countenances restrictions on free speech in
limited cases, such as incitement to imminent violence, or other, important
constitutional values are implicated.
Bhatia finds that Indian jurisprudence is evenly divided between these two
approaches, and that it is open for a court to stamp its own image upon free
speech law, by definitively taking forward one line of jurisprudence at the
expense of the other. But he is convinced that whatever the court does, as long
as the provisions with misuse potential remain on the statute books, the gap
between law and practice will ensure that they will be abused.
Therefore, the book makes a persuasive plea to our Courts to change course, to
meet the challenges posed by illegitimate restrictions on free speech, such as,
arrests for Facebook likes and for political satire, banning of books that
challenge cultural norms, and of films that raise serious issues, and persecution

of investigative reporting, all of which make it deeply problematic for a polity

that calls itself a democracy.
THE editors of the second book, under review, are all teachers of English. They
have put together 19 essays authored by different scholars on various
dimensions of sentiment of hurt. The contributors belong to a diverse range of
professional practice such as academia, law, film, art, literature and activism.
In his opening essay, aptly titled, How Far Can You Go?, the editor of the
Hindu Business line, Mukund Padmanabhan, asserts that causing offence is one
of the necessary by-products of free speech. But he cautions that there is no
unfettered liberty to do so.
Asking himself the question when does one persons right to free speech trump
anothers sensitivities, he answers that we will never know until somebody
somewhere thinks we have gone further than we should have.
Dilip Simeon, in his essay, warns us that the so-called hurt sentiment has now
become the cutting edge of a campaign to replace democracy with mob rule.
The degree to which we resist this, will be the measure of our capacity to
preserve the truest human capacity the power to speak and to uphold truth, he
says.

Siddharth Narrain, a scholar with Sarai, Centre for the Study of Developing
Societies, New Delhi, in his insightful piece on the origins of Hate Speech
Legislation in India, finds that Section 298 IPC, which deals with wounding
religious feelings was opposed by thinkers during the 19th century, according
to whom, it should not be criminalized unless it led to public disorder.
Narrains discussion of the history of Section 153A of IPC, and the Rangeela
Rasool episode, offers a useful perspective on the subject. He rightly observes
that the procedure that the accused have to go through and the process of trial
itself become a huge deterrent to speech.
The book includes essays by historian Mushirul Hasan, and legal philosopher,
Lawrence Liang, although most contributors are drawn from University
departments teaching English, political science, and related disciplines. Interdisciplinary perspectives on a subject like this would add to our understanding
greatly.
Both the books have indexes which are likely to be of great help to readers.