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Free Speech in an Age of Violence
The Challenge of Non-governmental Suppression
Ajai Sahni*

Words are deeds.1

In April this year, the Srinagar station of All India Radio (AIR) stopped the broadcast of an innocuous, though very popular, programme based on Hindi film songs, Geet Gata Chal, following threats by a militant group active in the Kashmir Valley. The decision was officially conceded to have been taken under pressure from ‘certain quarters’. It came close at the heels of a threat-notice published in a local Urdu daily by a pro-Pakistan militant group that claimed that the programme offended against ‘Kashmiri culture’.2 

From a limited administrative perspective, the decision is not unreasonable, particularly against the background of highly focused terrorist violence against media professionals who offend extremist sensibilities. In February 1999, three cable television entrepreneurs were shot in their legs as a "warning"3  against their failure to follow the extremists’ Talibanised code of conduct.4  There have, over the past decade, been several attacks – many of them fatal – against media personnel, both in the private and state-owned media.

Such trends have not been restricted to the State of Jammu & Kashmir (J&K) alone. One may recall the chilling effect of the kidnap and gruesome murder of M. L. Manchanda, station director of AIR at Patiala in May 1992. Manchanda was decapitated, his torso thrown in Patiala, and his head, miles away, in Ambala. The killing, claimed by the Babbar Khalsa, was an unprovoked, crude and effective demonstration of the terrorists’ determination to impose their ‘code of conduct’ on the government’s broadcast agencies. And despite the fact that the perpetrators met their end in police encounters within a few days,5  the retreat, not only of the official media, but of the Press in general, was complete. Every element of the "Panthic code of conduct" was, thereafter, "accepted by the official media, AIR and Doordarshan, as unquestioningly as by the national and regional newspapers (with a single isolated exception)".6

The validity of the ‘limited administrative perspective’ that contributed to the AIR decision is compounded by the fact that the content of the speech acts that are sacrificed by such a withdrawal may not, on the face of it, appear to be worth the risks or the expense that would be involved in opposing the militants’ demands. A programme of Hindi film songs has little overt political value and there is a large constituency, not only in Kashmir or among the terrorists, but among the general public all over India, that regards the increasing prurience of their lyrics and the coarseness of their execution with great disfavour. In view of the crisis of the low intensity proxy war in Kashmir, to make an issue out of something quite so ‘frivolous’ may seem incongruous.7

This argument, however, is defeated by the very context within which it is stated, because the demand to shut down a particular radio programme is only one element in a larger campaign to "set the Valley’s cultural agenda in their (the terrorists’) own narrow and sectarian terms."8  This agenda includes the prescription of a "dress code" for women, fatwas against cinemas, as well as against the consumption and sale of liquor, and a rigid code of social and religious practice, each of which has been, from time to time, imposed through violence or the threat of violence.

Terrorist-imposed restrictions on the freedom of speech, moreover, are part of a continuum that comprehends acts of criminal intimidation and incitement to crime, and that often culminates in crime. The Manchanda-killing in Punjab was intended to inflict a specific Panthic code for the electronic media that, at its most innocuous, required women newsreaders and anchors on television to cover their heads; banned the words ‘terrorist’ or ‘atankvadi’ (in Punjabi) and their derogatory equivalents and sought an end to all non-Punjabi language programming. But they also demanded that highly subversive propaganda material be carried on the official media – without amendment or censorship – and sought a number of administrative changes that no democratic and secular government could accept.9  These demands were elements in a larger and more general "Press Code" that required mandatory publication by all newspapers of the press releases and advertisements sent in by terrorist organisations (and this was faithfully done even where the contents were highly subversive and amounted to criminal incitement and intimidation). At the same time, a Panthic Code of general conduct was also implemented in the State through bullet and bomb.10

The dilemma, in the Srinagar AIR case, consequently, goes far beyond the question of discontinuing a single, apparently ‘zero value’, programme. As one commentator notes, "the fight against militancy was not so much about guns as about the fundamentalist and obscurantist world-view that it represented."11  And it is this worldview that is inflicted, through violence or the threat of violence, on large populations who are otherwise unwilling to accept the fundamentalist perversion of their culture. By retreating in the face of the threat of violence, the state abandons the very constituency that makes democracy a possibility, leaving them voiceless and vulnerable to coercion.

Nor indeed, in our age, is the problem restricted to the fight against militancy. The assault against the freedom of expression has, in these times, taken on a peculiar virulence and a character with which conventional executive and judicial wisdom has rarely been confronted.

The traditional challenge to the freedom of speech has usually comes from a repressive state that seeks to silence criticism, or to suppress ideas that are not approved of by the government of the day, the ruling elite, or by the moral majority. In this regard, there is a long tradition of jurisprudence that has set the bounds of the freedom of expression far from the core of politically valuable speech, and fairly close to the limits of licence. An oft-quoted dictum, both in the US and Indian jurisprudence, is that

A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purposes when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

This is why freedom of speech…is…protected against censorship or punishment… There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardisation of ideas either by legislatures, courts, or dominant political or community groups. (Emphasis added)12

By and large, restrictions on the freedom of speech have, consequently, been defined in the interest of public order since "opinions lose their immunity when the circumstances in which they are expressed are such as to constitute their expression a positive instigation to some mischievous act."13

Such an approach, however, fails to meet the exigencies of an increasing number of cases where the threat to peace is not caused by particular speech acts that are abusive, insulting or inciting to violence, but arises out of a response to the voicing of certain ideas that may be disapproved of by specific, often small, vocal and potentially violent groups. Or, in a lesser avatar, cases in which restrictions on speech are sought to be imposed on grounds that particular speech acts would ‘hurt the sentiments’ of particular communal, caste, regional or other special interest groups.

The furore over the film Fire, which explored the development of a lesbian relationship within the context of a conservative Indian family, is a case in point. This perfectly pedestrian film was transmuted by the Shiv Sena’s violent protests into an icon of the freedom of expression standing against a groundswell of bigotry and intolerance. Significantly, for the chauvinistic groups who attacked the film, the issue was not ‘obscenity’, but ‘Indian culture’. One of the foot soldiers of the Bharatiya Janata Party (BJP), which co-operated with the Shiv Sena in the anti-Fire protests, saw evidence of an "Islamic conspiracy" in the portrayal of one of the main characters of the film, Radha, by a Muslim actress.14  The then Chief Minister of Maharashtra lauded the violence of his Shiv Sainiks, declaring, "What they have done is correct. The film is against Indian culture."15

The State of Maharashtra has, of course, played a leading role in the "public censorship" of ideas that are deemed to offend against the so-called ideology of Hindutva ever since the BJP-Shiv Sena combine came into power there. There has been a sustained and violent campaign, led by supporters of these two parties and supported by the Vishwa Hindu Parishad, against artist M.F. Hussain’s "offensive" portrayal of Hindu deities.16  Morality brigades have mushroomed, scrutinising, for instance, the lyrics of songs to be played by the Australian band, Savage Garden; and demanding a ban on Eric Clapton’s Cocaine on AIR – a demand that was immediately conceded.17 

But the wave of bigotry goes well beyond the borders of Maharashtra, and indeed, of common sense. Thus, we have the BJP – self-appointed votaries and defenders of India’s ancient culture – protesting against the representation, on the cover of a diary issued by Delhi Tourism Development Corporation, of a well-known bronze sculpture of a dancing girl dating back to the Indus Valley Civilisation. The diary, on which hundreds of thousands of rupees had been spent, was hastily withdrawn.18

Nor indeed, is the lunacy restricted to the Hindu far-Right. The staging of a play (once again in Maharashtra), Mee Nathuram Godse Bolte, which sought to represent the point of view of Mahatma Gandhi’s assassin, was blocked by protests, both of the leadership and the lumpen elements, of the ‘secular, liberal, democratic’ Congress party.19  In Madhya Pradesh, the Chief Minister of the Congress-I-led government, similarly, sought a ban on a book, Godse’s Murder and After, by Gopal Godse, Nathuram Godse’s brother.20

Taking their cue from national political parties, numberless ‘social service’ and non-governmental organisations and activists have also jumped on to the censorship bandwagon, often using the Courts to further their ends – and to derive the publicity that is usually their predominant motive. A handful of examples demonstrate the sheer sweep of such actions. In 1997, the Miss Tourism International pageant was disrupted as a result of protests by a motley group of some 200 activists of the Bharatiya Janata Mahila Morcha, who barged into the hotel where the contestants were staying, and ransacked the lobby during a rehearsal of the show. The local administration simply withdrew permission for the show, and their decision was upheld by the Andhra Pradesh High Court.21  Even more interestingly, two population and sex education programmes, Balance Barabar and Kaam ki Baatein, produced by a Non-governmental organisation (NGO), Population Service International, and Marie Stopes Clinic, and aired on the extremely conservative AIR, were banned on grounds of ‘obscenity’ on a petition by another unknown defender of public morality, the Azadi Bachao Andolan. The Magistrate’s concern, however, obviously went well beyond obscenity, and sought to impose a particular interpretation of public morality: "Balance Barabar", he noted, "tilts heavily in favour of sexual freedom in the guise of sexual information without caring for ethical and moral standards. So is the case with Kaam ki Baatein." The offending programmes answered public queries relating to common sexual problems and apprehensions – masturbation, homosexuality, the use of Ayurvedic pills for safe sex, adultery, etc.22  A Delhi Court also restrained the telecast of a TV programme which featured a pair of turbaned anchors who called themselves Tony Singh and Titoo Singh as a result of a petition that claimed that the "feelings of Sikhs in general have been deeply and badly injured."23  In Rajasthan, the Chief Justice of the High Court converted a letter written by a school girl into a Public Interest Litigation against a satellite television channel; the girl claimed she was frightened by a horror show aired on the channel.24  Numerous such cases are brought up, from time to time, in provincial courts, and their chilling effect on the freedom of expression is barely noticed, as most such cases go unreported, or secure only passing mention in the media. This impact is compounded many times over by other instances, which do not even reach the Courts, but where intimidatory tactics are used against individuals and groups who fail to conform to the ideas and expectations of potentially-violent groups.25

Unfortunately, the subordinate judiciary has frequently been more than willing to support claims of injured sectarian and moral sensibilities, displaying little concern or awareness of the larger context and purpose of the freedom of speech, or of the jurisprudence established by superior courts in clear precedents. To the extent that decisions of the subordinate courts in most such cases are seldom appealed – publishers, TV programmers, film-makers and artists simply want to get on with life and are far from eager to remain mired in an interminable, complex and often futile judicial process – the actual limits on the freedom of speech are ordinarily defined in these numerous, often unnoticed, judicial orders. Indeed, many such cases end at the preliminary stage itself, as producers and artists voluntary cut out the offending portions of their productions in order to escape the pattern of ‘punishment by trial’ that has now become a fact of life in India’s sluggish judicial system.

There has, of course, always been a large sphere of intolerance in Indian society; but while it may not have diminished, there is no reason to believe that it has grown. It has, however, shifted in recent years from the periphery of the social and political stage to its very influential centre. What has grown, as a result, is the institutional tolerance of (specific categories of) intolerance, and this is increasingly reflected in judicial and executive action.

The most significant impact of this regime of intolerance and constraints on the freedom of speech is that it has tended to impose a closure of debate on a wide range of issues deemed to be ‘sensitive’, politically incorrect, or morally improper. Caste and religion, linguistic, regional and cultural differences, gender and sexuality – the free discussion of controversial aspects of each of these has come under progressively restrictive taboos, even as the entire public space has been left free for obscurantism and bigotry.

We, thus, see the emergence of two opposing dangers. In situations of extreme and widespread disturbance, the Courts and the executive have expressed themselves through acts primarily of omission in favour of the freedom of the most extreme speech, frequently comprehending incitement to terrorist crimes and violence.26  In situations of peace, on the other hand, the institutions of the state have tended to ally themselves with the intolerant, prohibiting speech acts on the first pretext of an ‘injury’ to sectarian sentiments or standards of morality peculiar to small and volatile groups. The violent exposition of the doctrines of communal and sectarian hatred, and the suppression of certain categories of speech that are disapproved of by volatile elements, has, thus, been encouraged by a policy of increasing licence extended selectively to those who back their speech acts, or their acts of censorship, with violence.

This, however, is not the consequence of the jurisprudence evolved in the superior judiciary, but of the practice inflicted in numberless and unreported – often uncontested – decisions that reflect little more than the personal predilections and prejudices of individual members of the subordinate judiciary and the provincial administration. These decisions tend to ignore the distinction between a threat to peace that is caused by particular speech acts that are threatening, abusive, insulting, or inciting to violence, and a threat to peace that arises out of an ‘audience response’ to the voicing of ‘unpopular’ ideas, what is described in legal literature as the "heckler’s veto".

Clearly, if the purpose of free speech is "to invite dispute",27 and if even unpopular ideas are to be allowed expression, we must come to terms with the possibility of attempts by militant groups to violently disrupt their public espousal. If a danger to public order alone obsesses the mind of enforcement agencies, then, if a group of dissenters, or simply hooligans, disrupts, or threatens to violently disrupt a meeting in which one or more speakers expresses unpopular opinions, or opinions divergent to theirs, and action is taken against the speakers for breach of peace, such action vests a de facto power of censorship on the disrupters. And this is not the sole danger. Once this principle is established, the police may be tempted to disperse meetings or demonstrations, even when the risk of violence is relatively slight; and worse, a biased administrative authority may use the possibility of violence as an excuse to actively suppress and censor the expression of views critical of the government or the status quo.

As with other areas on the uncomfortable borderline between freedom of speech and violence, no simple solution is available to the problem of the hecklers’ veto. The law must, of course, preserve peace, but if the democratic ethos were to survive, the law must, equally, guarantee protection against intolerance to those who express divergent opinion.

It is important to note, within this context, that courts may be reluctant to challenge the exercise of executive and police discretion in circumstances of apparent emergency. In any case, by the time the matter reaches the court, and in the event that the speaker is acquitted, the exercise of his right to free speech will already have been successfully stifled. An acquittal does not retrospectively guarantee the right to freedom of expression: the moment may have passed, the protest may no longer have significance and the occasion for the demonstration may have lost relevance. It is, consequently, essential to establish and implement an explicit jurisprudence that judiciously balances competing values.

The problem of hostile audience has notably been taken up by the Indian Supreme Court in substantial detail in what is known as the Ore Oru Gramathile film censorship case.28  The Tamil film Ore Oru Gramathile (In Our Village) dealt critically with the sensitive issue of the State’s reservation policy, arguing against the Constitutional provisions for reverse discrimination in favour of the Scheduled Castes and Tribes, under which a proportion of seats are reserved for these groups in educational institutions as well as in government service and public sector employment. The State of Tamil Nadu had appealed to the Madras High Court against grant of a censor’s certificate for exhibition of the film on the grounds, among others, that the film could create serious law and order problems in the State.

The Madras High Court found great merit in this reasoning and noted that if the film was exhibited it would endanger public order because "it instigates ill feelings and distrust between Forward Castes (sic) and Backward Castes, including Scheduled Castes and Scheduled Tribes".29 The Court cited with approval the observation of members of the Revising Committee on the film that "The overall impact of the film is an exhortation that there should not be any reservation on the basis of caste. This, I fear, will create strong negative response from a section of the public leading to a law and order problem." Similarly, the Court noted that a member of the Second Revising Committee had opined that "the film, if exhibited, is likely to hurt the feelings of some group which may endanger public order."30

The Madras High Court also very convincingly placed the issue in the context of India’s continuing history of communal and caste violence, observing that the film’s advocacy of abolition of the ‘reservation system’ would lead to clashes "between several castes."

Already people in the state of Gujarat had suffered immeasurably for a long period on this issue. Several were killed and public properties were damaged. There were agitations in Andhra Pradesh, Tamil Nadu, a land of tranquility, by misguided notions of some, had experience in recent past communal clashes (sic)… Valuable lives have been lost… On the eve of elections, invariably, caste factors have come to play their disgusting role... when the impact of the film is centred around caste factor and when the topic has been mishandled, if a breach of law on this factor occasions (sic), then it will have wide ramifications… If the administration fails to foresee properly the outcome of the dissatisfaction created among Castes and Communities, if would result in public properties and valuable lives of Citizens being lost.31

Certainly the danger of violence noted by the High Court was both real and grave. Equally clearly, however, this violence was not being instigated by the speech act in question, which essentially consisted of the peaceful – if politically incorrect – advocacy of reforms in certain laws, and the criticism of certain policies adopted by the government. However inaccurate its representation of the issues, or unpopular the ideas expressed in the film, it was no part of the prosecution’s argument that the film constituted incitement to violence, or instigation to crime; nor was the film abusive or intolerably insulting against any individual or group of individuals. The argument, quite simply, was that reverse discrimination on the basis of caste is unfair and results in distortions that could constitute a miscarriage of justice. Those who disagreed with this message were free to stay away from the screening of the film. Or to protest it by peaceful means, in the equal exercise of their own freedom of speech. The very real threat of violence that was spoken of in the Madras High Court judgement was the threat of a hostile audience reacting to a message it preferred to suppress. As the Court itself admitted, the film would affect the "sensibilities of large sections of the general public, who are prone to resort to violence."32

What the Madras High Court did in Ore Oru Gramathile was entirely in keeping with the general attitude of Courts in India in the past. By and large, courts chose to refuse to make concessions to free speech in the face of broad demands by the state that public order would be affected. In the Crossroads case of 1950, of course, there had been a powerful liberal statement,33  and the Constitution had to be amended when judges refused to accept that the interests of public order were linked to the security of the state. Broadly, however, the courts tended to show great generosity in fulfilling the state’s restrictive demands. The Supreme Court, for instance, allowed time-bound pre-censorship in the Daily Pratap case, even while admitting that the law was not "designed to directly maintain the public order, or directly protect the general public against any particular evil";34  and in Ramjilal’s case, the State was allowed to punish for the publication activities which had a "tendency to cause public disorder."35

In Ore Oru Gramathile, however, the Supreme Court completely repudiated this tradition, refusing to accept the threat of public resort to violence as a legitimate ground to deny the censors certificate to the film. The Supreme Court chastised the High Court judgement for having run "afoul of the democratic principles to which we have pledged ourselves in the Constitution."36  Justice Shetty cited the observation of the Court in Naraindas Indurkhya vs. State of Madhya Pradesh with approval:

It is our firm belief, nay a conviction which constitutes one of the basic values of a free society to which we are wedded under our Constitution, that there must be freedom not only for the thought that we cherish, but also for the thought that we hate.37

Justice Shetty particularly stressed the Constitutional dispensation that "it was not necessary that everyone sing the same song."38  The state, the judgement asserted, cannot prevent open discussion and open expression, however hateful to its policies, and everyone had a fundamental right to form and express his or her own opinion on any issue of general concern. Free speech in a democracy, the Supreme Court insisted, was not just a strategic safety valve, but was based on the expectation that "a bit of sense may be salvaged from the odious minds striving to be rational."39  Quoting the European Court in Handyside vs. United Kingdom, Justice Shetty defended the right to unpopular speech, even if such speech "shocked or disturbed the State or any sector of the population."40  He insisted that the restrictions imposed must be proportionate to the legitimate aim pursued, and any restriction by the State "must be justified on the anvil of necessity and not the quicksand of expediency."41

These observations alone were sufficient to overturn many preceding judgements in favour of constraints on speech: the state was now required to show a necessity, and that too, a real necessity, even a clear and present danger, before it was given the power to restrain and punish expression.

The Court, however, went even further, declaring that not only was it incumbent on the State not to restrain such speech, but that it was the duty of the State to actively and positively protect and defend those who exercise the right to unpopular speech. The Court demanded, "what good is the protection of freedom of expression if the State does not take care to protect it?"

…freedom of expression cannot be suppressed on account of threat of demonstration and processions or threat of violence. That would tantamount to negation of the rule of law and a surrender to blackmail and intimidation. It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem. It is its obligatory duty to prevent it and protect the freedom of expression.42  (Emphasis added).

Whatever the practice resorted to in day-to-day administration by the police and the magistracy, with Ore Oru Gramathile the jurisprudence established by the Indian Supreme Court now stood at par with the most liberal ideologies of the West. Indeed, in many ways, the observations in Ore Oru Gramathile go well beyond the prevailing jurisprudence in the USA and UK, considered leaders in the field.

The American Supreme Court has not clearly delimited the powers and duties of the police where there is a hostile audience on the point of violently breaking up a lawful meeting. However, Feiner vs. New York43 is one of the leading cases with a bearing on this issue. A speaker at a street corner in Syracuse gathered a small crowd of both whites and blacks around him. He launched into an invective-laden speech in which the US-President was described as a "bum", and the local mayor as a "champagne-sipping bum" who "does not speak for the Negro people." The speaker advocated that the blacks should "fight" for equal rights, and the crowd began to get restive. The police feared that a fight could break out, and after two requests to the speaker to stop, he was arrested for disorderly conduct. The majority of the Court upheld the conviction on the grounds that he had incited to riot, and that there was clear and present danger of disorder – perfectly acceptable grounds in law, though the Court’s interpretation of facts could be brought into question. It was, however, the dissenting opinion of Justice Black and Justice Douglas that gave special significance to the case, as they argued that the record did not show any intent on Feiner’s part to cause violence despite his exhortation to the ‘Negro people’ to fight for equal rights. Justices Black and Douglas thought that the police’s primary duty in the situation was to protect the speaker, if necessary by arresting members of the hostile audience. By adopting the opposite course, they insisted, police censorship had been imposed.

Though no subsequent judgement of the American Supreme Court explicitly dealt with the hostile audience issue in any detail, it appears that the dissenting opinion of Feiner vs. New York has now gained predominance in the US jurisprudence. In Wolin vs. Port of New York Authority44 the 2nd Circuit Court indicated that the initial responsibility of the police is to protect the First Amendment rights as far as possible. Thus, if the police have advance information on the possibility of violence or disruption of a political demonstration/speech, they should ensure the presence of an adequate force to safeguard the freedom of speech and assembly. An order to disperse can only be justified as a last recourse, when there is a clear and present, or imminent, danger of physical violence. In Gregory vs. Chicago,45  the majority of the US Supreme Court held that the demonstrators could not constitutionally be convicted of ‘disorderly conduct’ for refusing to obey police requests to disperse when they were confronted by hostile opponents. In the landmark Skokie judgement, where the Supreme Court held that a group of neo-Nazi’s could not be prevented from carrying out a flag-march in Skokie village which had a large Jewish population, many of whom were survivors of the Holocaust in Germany, the hostile audience problem was also touched upon, albeit peripherally. The Court observed that, if Skokie officials were so sure that certain hostile groups would be hard to control, the village should seek an injunction against those persons and prohibit their unlawful actions, adding that "if these civil rights are to remain vital for all, they must protect not only those society deems acceptable, but also those whose ideas it quite justifiably rejects and despises."46  In all, American case law seeks to protect the values of free speech until it is clear beyond doubt that they should be subordinated on a particular occasion to public order.

British case law is far more restrictive, and confers sweeping powers on the police. There is, of course, one major decision that adopts an uncompromisingly pro-free speech position in the hostile audience context: Beatty vs. Gillibanks,47  where the Divisional Court refused to uphold binding-over orders imposed on leaders of the Salvation Army for holding an unlawful assembly. On a number of previous occasions, their procession had been broken up by the Skeleton Army, and on this occasion, Beatty and some other Salvation Army leaders were arrested when they refused to disperse a procession that police felt would also be violently obstructed. The Court held that the processionists had not caused any unlawful act, and that the disturbances had not been the intended, natural, or necessary consequences of their processions. Justice Field added, further, and very significantly, that the Skeleton Army would be less inclined to intervene when they appreciated that their obstruction would not terminate the Salvation Army processions, but that if they did continue their violent opposition, the police would deal with them, and not with people exercising their lawful rights.48

The case, however, was highly controversial in Britain, and its impact has been progressively diluted by the preventive powers granted to the police to keep the peace which now provide a basis for criminal prosecution even where organisers of a meeting have no intention to provoke disruption. This authority flows from Duncan vs. Jones,49 in which the appellant had started to address a small meeting outside a training centre for the unemployed in London, at a spot where disturbances had followed another meeting an year earlier. Fearing a repetition, the police asked the appellant to move to another spot, 175 yards away, and when she refused, she was charged with obstructing a police officer in the execution of his duty. Her conviction was upheld by the Divisional Court.

This decision evidently rendered the law on freedom of non-provocative assembly impotent. Here everything turned on whether the police reasonably apprehended a breach of peace – clearly a fragile basis for the protection of civil liberties.

Compared to the sheer scale of potential violence that Ore Oru Gramathile addressed – the possibility of a caste conflagration that could envelope an entire state, and possibly spread across the nation – the dilemma confronting the British and American courts appears almost trivial, and their resolution somewhat equivocal. Ore Oru Gramathile was indeed an immensely revolutionary judgement; but more than a decade has passed since it was pronounced. Over this period, the spirit and essence of that judgement appear to have been swept aside by the rising tide of political violence, and the increasing fragility of the Indian administrative system – both civil and judicial. These changing circumstances may tempt a revision of the principles stated in Ore Oru Gramathile, bringing our jurisprudence in line with the more conservative practice, and the increasing intolerance, of our age.

This would be a grave error, compounding the cumulative failures of governance and the administration of justice that have already pushed our nation to the knife edge of violence. Indeed, the growing violence of our times is, at least in part, a consequence of declining levels of political debate and a consistent refusal – across party lines – to discuss fundamental and disturbing issues. The result is that these troubling issues are simply brushed under the carpet of a pretence of harmony and conformity until they explode into violence. The whores’ ethic of consensus has, today, made it impossible to hold an honest debate on issues connected with caste or religion, to take two prominent examples, and has given rise to the absurd claim that only a Dalit or a Muslim can correctly articulate the interests, the aspirations and the good of the community he ‘represents’. Large sections of the population have, consequently, been held hostage to their own exploitative, often bigoted, caste and religious leadership, progressively excluding them from the sphere of liberal democratic thinking and the possibility of social and economic development. Any critical attention from an ‘outsider’ or a dissident is immediately suppressed, not only by violent opposition from caste groups and religious orthodoxies, but also as a result of the supportive and politically correct protestations of the supposedly liberal, egalitarian and secular political leadership.

These problems are immensely exacerbated in a situation of widespread terrorist violence. Administrative expediency is, in such circumstances, a near-overwhelming argument in favour of the selective suppression of speech acts that may offend fundamentalist and extremist sentiments. But such a regime of expediency would only strengthen extremism. It is now imperative that the state puts its fullest force behind the protection of free speech against non-governmental and extremist censorship and repression. This becomes a basic necessity for the survival of the democratic framework: "If we seek a true victory, we must defeat the fundamentalist ideologies that threaten to plunge the entire region into a conflagration that may well destroy us all. The greater war that we must now engage in is the war for the minds of men."50

Rhetoric alone, even the powerful rhetoric of Ore Oru Gramathile, will not suffice to meet this end. Consistent administrative and judicial action, based on a sound understanding of the rationale of the judgement, even in the most challenging of circumstances and at costs that may be regarded as prohibitive, is required. The level of commitment that is needed to implement such a policy on the ground can be understood best in the context of a single extraordinary example – the sacrifices, the costs, the effort and the manpower that went into protecting the Hind Samachar Group in Punjab. The Group was thought by Sikh extremists to be projecting an ‘anti-Sikh’ stand. One of the earliest acts of terrorism in that state was the assassination of Lala Jagat Narain who headed this Group. A sustained campaign of liquidation targeting the management, the journalists, and eventually even the distribution network – including hawkers and newspaper delivery boys – was carried out against this Group throughout the period of terrorism in the state. 62 persons associated with the Group were killed by the terrorists.51  The stubborn persistence of the family that controlled the Group, even in the face of this onslaught, is well known: they simply refused to be cowed down, to shut down their paper or to change their editorial stance. What is not known quite as well is the sheer magnitude of the protective umbrella, provided by the state police, under which they functioned, and in the absence of which their courage and obstinacy would have been fruitless, indeed fatal to the very last man. More than two battalions of armed police men and para-military force personnel were, at one time, assigned to the protection of the Hind Samachar Group and its operations – and this included operations down to the smooth delivery – through hawkers and newsboys – of copies of the paper to its readers.52 

Speech is a curious entity. The most noble ideals enunciated in the Constitution, the stentorian pronouncements of the Supreme Court, the overarching oration of our members of Parliament, may have no impact on the ground – despite the immense significance ascribed to them in our system of governance. And yet, a seemingly obscure idea articulated in a context ripe for its realisation; a chance remark, uttered in some remote province, that seizes the imagination of its people; a symbol, conjured out of the collective aspirations of our faceless masses; each of these has within it immeasurable possibilities of national transformation.

This is the unequivocal presupposition of democracy. And this is why the state cannot, must not, retreat – or allow even the most inconsequential voice to be silenced – in the face of intolerance, of intimidation, of coercion, even of the threat of the most extreme violence.

Notes & References

*Dr. Ajai Sahni is the Director, Institute for Conflict Management and Executive Editor, FAULTLINES.

  1. WITTGENSTEIN, Ludwig, Philosophical Investigations, 546.
  2. Cf., "Meek Surrender", (Editorial) The Hindustan Times, April 6, 1999.
  3. AHMAD, Rashid, "Valley stage to new morality play", Pioneer, 7.3.99.
  4. MISHRA, Law Kumar, "J&K militants target jeans, cable TV", The Times of India, February 25, 1999.
  5. Cf., GILL, K.P.S., "Endgame in Punjab: 1988-1993", Faultlines 1.1, Bulwark Books, May 1999, p. 64-65.
  6. Ibid., p. 53. The exception was the Hind Samachar Group, which had paid and, throughout the period of terrorism in Punjab, continued to pay in blood for their stubborn resistance to the extremist diktat.
  7. The distinction between ‘frivolous’ and ‘serious’ speech acts, however, is not as simple as it seems. There have been several attempts in jurisprudence to distinguish between ‘high’ and ‘low’ value speech which merit differential protection, and ‘zero value’ speech, which would merit no protection. It is, however, erroneous to assert that the protection of the freedom of expression should be extended only to political or politically significant speech, and not to other speech deemed to be of lesser social value. Apart from the intrinsic value of speech as a medium of self-expression and self-development, there are a number of problems of distinguishing between what constitutes ‘political’ or significant speech, and what doesn’t. This problem has often been raised in connection with obscenity laws. Thus it has been suggested that almost all sexually related ‘speech’ "will invariably carry an implicit, if not explicit, message in favour of more relaxed sexual mores… In our society, the very presence of sexual explicitness in speech seems ideologically significant, without regard to whatever other message may be intended." [STONE, ‘Restriction of Speech because of its Content: The peculiar case of Subject-Matter Restrictions’. 46 University of Chicago Law Review, 1978, p. 111-112]. As a result, American Courts have seen fit to treat topless dancing as a form of expression protected by the First Amendment, though they recognised that "few of us would march our sons and daughters off to war" to protect this form of expression [Krueger vs City of Pensacola, 759 F 2d 851, 854 (11th Circuit) 1985]. Indian Courts, however, have been far more conservative in the moral codes they seek to inflict on the nation, and have found it expedient to exercise their power of censorship in a wide range of cases, including the successful prosecution of a Bombay bookseller for the sale of D. H. Lawrence’s Lady Chatterly’s Lover. (AIR 1965 SC 881: 1 SCR 65). Such sweeping powers of censorship are rooted in the "overbroad" provisions of Article 19 (2) of the Constitution, which define the ‘Interests of Decency and Morality’ as grounds for restriction of free speech. The fact, nevertheless, remains that "The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine." [Winters vs. New York, 333 US 510 (1948)].
  8. "Meek Surrender", op. cit.
  9. The Babbar Khalsa issued a Press Release on May 21, 1992, setting the following conditions for Manchanda’s release:

  1. Letters written by Sukhdev Singh Sukha and Harjinder Singh Jinda (General Vaidya’s assassins) to the President of India be broadcast in various languages including Punjabi on Radio and Television at prime time (9.00 pm).
  2. All programmes relayed from AIR-Chandigarh, Bhatinda and Patiala should be in Punjabi.
  3. Jalandhar Doordarshan would telecast programmes in Punjabi, with preference to programmes depicting ‘Khalsa culture’ . Only 5% of the total programmes were to be telecast in Hindi, and these were to be screened by a committee of Punjabi scholars.
  4. All non-Punjabi officials – including artistes – working in Radio and Television stations should be removed.
  5. News in Punjabi to be broadcast at prime time and Hindi bulletins be discontinued.
  6. A majority of newsreaders and announcers on Doordarshan should be Sikhs.
  7. Teleprinters in Punjabi should be introduced.
  8. Radio and Doordarshan should adopt a balanced approach and give proper coverage to militants.
  9. Apologies should be tendered for telecasting the programme ‘Punjab Yatra’ which was aimed at defaming the militants.
  10. In Punjabi bulletins, the word atankvadi should be dropped and instead the word kharku be used. Words such as terrorists, extremists and ultras should not be used.
  11. Representatives of militants should be invited to present their views on Radio and Doordarshan.
  12. Every programme or News bulletin should commence with "Sat Sri Akal" in place of "Namaskar".

  1. Some 243 persons were killed by terrorists in Punjab between 1990 and 1992 alone under the garb of "social reforms" – or the implementation of their Panthic moral code. [1990: 76; 1991: 121; 1992:46]. Source: Punjab Police.
  2. "Meek Surrender", op. cit.
  3. DOUGLAS, Justice William O., Terminiello vs. Chicago, 337 US 1, 1949. See also: WIGMORE, John, ‘Abrams vs. US: Freedom of Speech and Freedom of Thuggery in War-time and Peace-time", 14 Illinois Law Review 1920, pp 554-58; BOLLINGER, Lee C., The Tolerant Society: Freedom of Speech and Extremist Speech in America, OUP (New York), Clarendon Press (Oxford), 1986; NEIER, Aryeh, Defending My Enemy, New York: Dutton, 1979
  4. MILL, J S, "On Liberty", Britannica Great Books, Vol. 43, Encyclopaedia Britannica, 1952, p. 293.
  5. BAGHEL, Meenal, "Quick Gun Murugans, Revolver Ranis", Indian Express, December 13, 1998
  6. DUTT, Nirupama, "Playing with Fire", Indian Express, December, 1998.
  7. Ibid.
  8. BAGHEL, op. cit.
  9. DUTT, op. cit.
  10. Cf. AZMI, Shabani, "Freedom under Fire", Times of India, December 17, 1998.
  11. "Digvijay seeks ban on book by Godse’s brother", The Pioneer, October 27, 1997.
  12. "Organisers of ‘Miss Tourism’ move apex court against stay", Indian Express, November 3, 1997.
  13. "FM producers summoned for ‘obscene’ broadcast", The Pioneer, October 25, 1997 and "AIR pulled up for ‘obscenity’", Indian Express, October 25, 1997.
  14. GILL, K.P.S., "The Devil’s Alternative?", The Pioneer, August 9, 1997
  15. Indian Express, December 7, 1997
  16. Cf. for instance, "Arrest warrant against Mamta Kulkarni", Times of India, October 171998; "Book Banned", The Pioneer, December 2, 1998; "Udham Singh in dock for mocking Laloo", The Hindu, April 21, 1999; "Schools targeted for letters on Kargil", Indian Express, July 19, 1999.
  17. The issue of extremist speech, incitement and intimidation merit separate and detailed treatment, and I propose to take these up elsewhere.
  18. See DOUGLAS in note 12 above.
  19. S. Rangarajan vs. P Jagajeevan Ram and others, (1989)2, SCC, 574.
  20. S. Rangarajan vs. Government of India, AIR 1989, 176, Madras.
  21. Ibid.
  22. Ibid.
  23. Ibid., at 177.
  24. Romesh Thapar vs. State of Madras, 1950 SCR 594
  25. Virender vs. State of Punjab, AIR 1957; SC 896.
  26. Ramjilal Modi vs. UP, 1957 SCR 860, (‘57) ASC 620
  27. Op. cit. at 35.
  28. SCC p. 816, para 23: SCR p 650
  29. Op. cit.
  30. Ibid. at 40.
  31. EHRR, 1976, p. 737.
  32. Op. cit. at 53.
  33. Ibid., at 51
  34. 340 US 315, 1951
  35. 392 F. 2d.83, 2nd Circuit, 1968
  36. 394 US III, 1969.
  37. 578 F. 2d at 210
  38. 1882,9 QBD 308; 1882 15 CoxCC 138
  39. Ibid., 146, per Field, J.
  40. 1936, 1 KB 218
  41. GILL, K.P.S., "Battle for the Mind: Nobody can be a Winner in Kargil", Times of India, July 9, 1999
  42. This included 2 chief editors; 2 news editors / sub-editors; 12 reporters / photographers and their relatives; 2 drivers; and 44 agents, sub-agents and hawkers. Source: Arvind Chopra, Director, Hind Samachar Group.
  43. Details of the actual security cover provided are as follows:

Security Cover for Hind Samachar Group Jallandhur

  1. Security at the Press – permanent guards at Jallandhur.
  2. Inspector – 1, Sub-Inspector –3, Head Constable – 6,

    Constable –60, (above one company strength)

  3. For escort of the proprietor and his family –
  4. Head Constable – 2, Constable –3, (about one section strength)

  5. Residence of the Proprietor –
  6. Sub-Inspector – 1 , Head Constable –3 , Constable – 3, (about one platoon strength).

  7. Arrangement in the morning at Jallandhur for sending taxis with Hind Samachar Group of News papers going to various destinations – about one half company’s strength (say-about 90 Security personnel with escorts vehicles, going with Taxis or escorts persons sitting in the taxi itself).
  8. At various main centres of Distribution in Jallandhur - Wherever hawkers used to come to collect news paper about one and a half Company strength (say 90 Personnel with Gypsys for Mobile Patrolling and guarding of the distribution centre ).
  9. Residents of the main distribution in Jallandhur – about one platoon strength (Say about 24 personnel at the rate of 2-3 armed personnel for distributor’s residence).
  10. Patrolling in the areas where hawkers of Hind Samachar Newspaper used to distribute news paper in various areas – about two company (Say 90-120 armed personnel with Gypsies for Patrolling).

  1. The arrangement in other cities/Towns where Taxis carrying ‘Hind Samachar Group of Newspaper’s reached with the news papers.

  1. At the place of arrival of Taxi-One Section-Guard/Patrolling (Main Distribution Centre).
  2. At Sub-Distribution Centres, Hawkers etc. the arrangement of armed Guards/Escorts were being made according to the sensitivity of the area/town. Normally, it consumed a strength of one company (Say about 60 Personnel), in smaller town and about 3 companies (Say 180 Personnel) in bigger towns.
  3. The arrangement of Guarding distributors, sub-distributors and hawkers were required everyday during the morning hours- at the time of distribution of the newspaper. However, some distribution centres and residence of distributors which had been declared targets by the terrorists were given permanent guards.

  1. In Borders Districts of Amritsar, Gurdaspur and Ferozepur.

Despite massive security arrangements which at times required deployment of about 5-6 company’s (300-350 Security Personnel) during the morning hours, foolproof security cover was not possible to be provided. In the first few months of declaring Hind Samachar Group a target, the terrorists killed, a number of hawkers and a few distributors in these districts.

  1. Subsequently, terrorist killings of personnel associated with the Hind Samachar Group became more prominent in the Malwa Areas – i.e., the Ludhiana-Sangur Belt.

  1. General

The arrangement of sending escorts with the Taxis carrying Hind Samachar News Paper was as under:-

Starting from Jallandhur escorts used to accompany the Taxis up to the border of the adjoining districts. The adjoining districts used to provide escorts in the area of its own districts and escorts of Jallandhur used to return back from the inter District Border. Thus almost every district had to keep escorts ready at various inter-district border to take over taxis carrying Hind Samachar News Paper.

The district SSPs in turn used to make similar arrangements for inter Police Station escorts. Thus there was a network of escorts and patrolling provided throughout the state every day to ensure that the voice of media is not curbed by the terrorists. Despite all efforts, sporadic killings of person associated with the Hind Samachar Group did take place.

Source: Information provided by C. Pal Singh, former IG Operations, Punjab, who was responsible for counter-terrorist operations in the state, and under whose over-all charge the security arrangements for the Hind Samachar Group were made.





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