Limits Of Free Speech

The controversy over cartoons portraying the Prophet as a terrorist confronts the issue of permissibility of hate speech in a liberal society.
The problem arose on September 30, 2005 when Danish newspaper Jyllands-Posten published these cartoons. Despite diplomatic protests by 10 Muslim nations a few days later and severe condemnation by the Islamic conference in Mecca in December, the cartoons were republished by a Norwegian paper on January 8, 2005.
An apology from Jyllands-Posten did not deter newspapers in France and Italy from publishing the cartoons again. The editor of one French newspaper was fired whilst another had no qualms about republishing the cartoons.
There were protests by Muslims everywhere. Embas-sies were attacked. Apologies were made from both sides. Trade links were severed. The Malaysian government banned the cartoons.
This is not a case of clash of civilisations ��� infamously popu-larised by Samuel Hungtindon's article and book ��� but one of managing sensitivities responsibly. There is a difference between 'unpopular speech' and 'hate speech'.
Only the former must be protected. Hate speech consists of deliberate and intentional attempts to insult and wound sensitivities of a group and community with intent of inciting strong reaction or knowing that disorder may foreseeably follow.
Many legal systems treat racist, communal and sexist speech as impermissible hate speech. India is no exception. Communal hate speech is criminalised by the Indian Penal Code (Sections 153A and 294A) and liable to be banned (Section 95 of the Cr PC) and subject to customs bans.
In 1972, Parliament criminalised attacks on harmony, sovereignty and integrity of India. In 1976 and 1989, the same was done for denigrating untouchables and tribals.
In 1986, Parliament made the 'indecent depiction of women' an offence. Unfortunately, Indian government has invoked and abused its 'hate speech' provisions indiscriminately.
Victims of such invocation include Katherine Mayo's Mother India, Stanley Wolpert's Nine Hours to Rama and, in our time Salman Rushdie's Satanic Verses in 1989, James Laine's work on Shivaji by Maharashtra and Taslima Nasreen's Lajja and Dwikhondito in West Bengal.
Had Rajiv Gandhi's defamation Bill of 1988 been passed, defamation would have joined the gallery of impermissible hate speech. India's hate speech provisions were strengthened in 1927 when Lahore high court failed to criminalise depiction of the Prophet as Rangeela Rasool, following murderous attacks on publishers.
Hate speech tests the conscience of free speech democrats. Free speech must be defended even if it is unpopular and unpalatable. It is in this sense that Justice Krishna Iyer in Supreme Court lifted the ban on Periyar Ramayana in 1977.
In India, official bans have been upstaged by civil bans, which led the sangh parivar to destroy part of Bhandarkar Institute and ransack galleries displaying M F Husain's paintings.
But there is a vast difference between opposing bans and supporting contents of all and any free speech. Voltaire's famous aphorism defends the right to free speech but does not prevent civil society from denigrating its contents.
We may defend the right to publish unpopular, even provocative, speech while condemning certain statements of free speech as disgusting. In doing so, we would simply be confronting free speech with free speech.
In the cartoon controversy, it would not have been contradictory for the Danish prime minister to extol freedom of press but condemn the cartoons themselves. Jyllands-Posten was right in apologising for the cartoons.
Their re-republication by other newspapers was necessarily provocative in the worst traditions of free press. Diplomatic protests and cessation of trade ties may fall within the scope of symbolic retaliatory free speech.
But violent protests are beyond permissibility. The cartoons themselves were racist, communal and part of an imperial war against Muslims. They were published to wound and elicit a reaction.
Their repeated publication was to exacerbate provocation to a pitch, which was achieved with further help from media hype. While espousing the case for an individualist right of free speech, we are not entirely liberated from the responsibility of collective governance in a fair and just manner.
This is not an invitation to extreme forms of censorship. But, it does mean that the collective conscience does not have to be silent. Painter Husain made clear that he would retract anything that wounded without intending to.
What does our collective conscience tell us? Is it silent? Should it remain silent? It is not just for Muslim voices to speak so as to stylise the cartoon controversy as being between Muslims and the rest.
Surely, liberal voices must also speak out against racism and communalism. This is not just a matter for Muslims but concerns all of us. Liberals who defend speech are not absolved from using their own power of free speech to speak with Muslims in condemnation.
Censor minimally, but condemn forcefully. It is part of free speech to meet irresponsible free speech with responsible condemnation.
The writer is a senior Supreme Court advocate.