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Old Laws for New Reasons: The Limits to Free Speech in India

Responding to: Religious and Communal Tensions in Indian Politics

By: Neeti Nair

August 23, 2018

Almost a century ago, in 1927, the Indian Penal Code was amended to include section 295-A, a law that made it a criminal offense to deliberately and maliciously outrage religious feelings in British India. Elsewhere I have shown how it was Indian legislators—Muslim and Hindu, such as M. A. Jinnah and Lajpat Rai—who argued for the passage of this legislation. Thus, it would be simplistic to call it a British-made law. However, colonial imperatives of keeping the peace between Hindus and Muslims, deemed by the British to be perpetually antagonistic towards each other, is what compelled the British to pass such a law. A special law would help keep the peace, or so the British hoped.

Many scholars have argued that such laws treated native subjects (not yet citizens) as prone to emotion, and as less capable of rational dialogue and discussion than those in the metropolis, i.e., Britain. This perspective was also inherited by the postcolonial, independent states of India and Pakistan when they retained such laws in their respective penal codes after 1947. 

Far from maintaining peace, laws like section 295-A are routinely used in contemporary India to ban books or censor films that allegedly hurt religious sentiments, even if the connection between such a book (or film) and the possibility of public disorder is far-fetched and difficult to prove. Such bans then embolden lumpen elements attached to political parties who target and harass authors, artists, and filmmakers, thereby creating a problem of law and order. Critics of the misuse of such laws, including free speech absolutists, have argued that the postcolonial Indian state continues to treat its (now) citizens as irrational. In so doing, they mirror the actions of their colonial predecessors. 

Recent events suggest there are limits to such an analogy. Last month, for example, the Indian state asked WhatsApp, the social messaging service owned by Facebook, to take responsibility for the spread of rumors of child abductors on its messaging service that had caused the deaths of at least 18 people. In response, WhatsApp will launch a test to limit the forwarding of messages for its users in India. Here is an instance of the Indian state treating Indians as exceptionally prone to believing false rumours and fake news that have led to mayhem and death. Yet, who can deny that the Indian state, responsible for the maintenance of law and order, must act, even if a technological solution limiting the rapidity with which fake news travels might not prove to be lasting? WhatsApp’s rules will have to be amended, or it will face action under new information technology laws. Judging from the silence of critics, it appears that the Indian state’s demand of WhatsApp has not raised any free speech absolutist alarms. Why is this the case? 

The alarming spate of violence against religious minorities, especially Muslims, and women has been a particularly pernicious consequence of social media, which allows anonymous trolls to threaten, abuse, and attack opponents in a way that blurs the line between verbal intimidation and physical violence. What is worse is the normalization of this violence, a consequence of deep-seated majoritarian and patriarchal norms that remain unaffected by the high-sounding, well-meaning norms enshrined in India’s constitution, and of a BJP government that supports the actions of both trolls and real life perpetrators of violence

This is thus not merely a case of postcolonial elites emulating colonial prejudices. As noted legal scholar and senior advocate in the Supreme Court Rajeev Dhavan said to me last week: “We are well outside the colonial narrative now. They [the British] had no electorate to deal with and obviously each and every action taken has electoral implications.” How the government of the day chooses to deal with cases under laws such as section 295-A, and other laws curbing the exercise of free speech, speaks volumes of the government’s own political and electoral calculations. The BJP government has been keenly involved in cases involving free speech, and not merely to keep the peace. A recent podcast series on free speech that has been launched by the Indian Express called Awaaz Do (Give Voice), makes this point explicit. 

The magnitude of the problem of escalating violence also renders the arguments of free speech absolutists void. Recent petitions challenging the constitutionality of section 295-A, put forward by a BJP leader Subramanian Swamy and a leader of the Aam Aadmi Party (AAP) Ashish Khetan, were dismissed by the Supreme Court in 2016. The court saw no reason to reopen a question that had been decided in 1957! Rajeev Dhavan, who has called for a review of laws such as 295-A after fighting several cases filed under this section of the Indian Penal Code, still holds that such a “public order law” is needed to deal with “extreme cases” of hate speech. Taslima Nasrin, a novelist, poet, and free speech absolutist who is in the unusual position of being a victim of cases filed under section 295-A of both the Indian and Bangladeshi penal codes, seeks the abolition of 295-A. However, she, too, makes an exception when it comes to cases of free speech that clearly and unambiguously “ask for violence.” The case of WhatsApp’s new rules for users in India shows that old arguments about colonial hypocrisies can no longer be sustained against the sorry reality of politically motivated fake news-led violence unspooling in real time.

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Old Laws for New Reasons: The Limits to Free Speech in India