Right to Offend

Download PDF

Facebook message on Bal Thackery

Yesterday, a 21-year old girl Shaheen Dhada, who put a message on her Face book ‘questioning the total shutdown’ of Mumbai city for Bal Thackeray’s funeral, and her friend Renu who ‘liked’ the message were arrested by the Maharashtra police.   The alleged message she posted was:

Everyday thousands of people die but still the world moves on.  Due to one political leader’s death, a natural death, everyone just goes bonkers.  They should know we are resilient by force not by choice.  When was the last time anyone showed some respect for Shahid Bhagat Singh, Azad or Sukhdeo.   Respect is earned, not given and definitely not forced… Today Mumbai shuts down due to fear, not respect.

The police arrested them under IPC Section 505 (2) which reads as:

Statements creating or promoting enmity, hatred or ill- will between classes

- shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Of course, a mob of Shiv Sainiks then vandalized the girl’s uncle’s orthopedic hospital. 

Tweet about P Chidambaran’s son

In an earlier incident, Ravi Srinivasan, 45-year old entrepreneur based in Puducherry in Tami Nadu, was arrested for posting the following message on twitter about P Chidambaram’s son:

got reports that karthick chidambaram has amassed more wealth than vadra.

The police swooped down early in the morning at 5 AM, woke him up and pulled him out of his home.  Ravi was arrested under IPC Section 66-A of the IT Act 2008 which reads as:

Punishment for sending offensive messages through communication service, etc

a) any information that is grossly offensive or has menacing character…

c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience…

- shall be punishable with imprisonment for a term which may extend to three years and with fine.

The police told Ravi Srinivasan that he was being arrested for ‘malicious intent to defame a good man’.

Cartoons on Indian political leaders

Aseem Trivedi, a 25-year old cartoonist with India Against Corruption (IAC), was arrested in Mumbai on sedition charges for his cartoons which lampooned Indian politicians and the government.   His website was banned by Police of Maharashtra.  One of his cartoons was:

He was arrested on the charges of sedition under IPC section 124A, violation of section 66A of the IT Act, and the Prevention of Insults of National Honour Act.  The IPC Section 124 A, 1860, on sedition reads as:

Whoever by words, or by signs, or by visible representation, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India,

- shall be punished with imprisonment for life.

It is not about sabotage, or waging a war against a nation, or spying for an enemy, that constitutes sedition.  It could be as simple as hating your government.  That is good enough for being put in prison for life. 

Nude Goddesses by MF Husain

The renowned Indian artist, MF Husain was hounded by police across India for portraying Hindu Goddess in nude.  He eventually fled the country because of the continuous harassment by police and authorities in various cities where he was being summoned.   He died in self-imposed exile.  One of his paintings for which the Indians got ‘hurt’ is:

The IPC section 295 A, 1860, reads:

Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs

- shall be punished with imprisonment of three years.

It doesn’t take much to outrage religious feelings.  They are outraged for no reason sometimes.  And yet, one could find himself arrested for causing such outrage. 

Remark on Kashmir by Arundhati Roy

Noted Indian author Arundhati Roy was slapped with sedition case for speaking her mind on Kashmir issue.  Answering a question from a journalist, she said that ‘Kashmir was never an integral part of India’. She was slapped with the sedition laws of IPC Section 124 A which originates from 1860.

Problem with the law or its implementation?

One commentator says that the problem is with arbitrary powers given to the police.   One commentator does not find fault with the laws but with the way they are implemented, says that these laws should be applied with discretion.  One commentator says that these laws are being misinterpreted.

I say that the problem is with the laws themselves.  These are insane laws.  I have said this before.  I will say this again.  They need to be scrapped with immediate effect to save this nation.  They are insane because they are subject to subjective interpretation.  Words like ‘malicious intent’, ‘hatred’, ‘causing annoyance’, ‘outrage feelings’, do not have objective meaning and therefore are subject to arbitrary and whimsical interpretation. 

What does ‘annoyance’ mean?  I could get annoyed when my kid switches off the TV while I am watching a movie, or get annoyed when someone criticizes me for my work.  What if every such act of ‘annoyance’ is now punished with three years in jail?  ‘Hurt sentiments’ is subjective too.  Someone may get their sentiments hurt by seeing a woman in jeans.  Now should that woman be jailed for hurting someone’s sentiments?  One’s ‘feelings’ can be outraged for any number of reasons – at the end of the day, they are feelings, how does one measure them? There is no objective way of defining these words of emotions, these words of feelings, because they happen to be completely subjective.  In the hands of ultrasensitive groups and leaders, these laws turn demonic.  Such words of feelings and emotions have a place in poems, stories, plays and movies, and may be in relationships, but have no place in law of the land where people can be prosecuted, persecuted, harassed, arrested, and imprisoned. 

Inherited from British Rule

When the British left, we could have overhauled our penal code.  We did not. Instead, we just inherited it.  We continue to have sedition laws borrowed from the time of British Rule.  During colonial times, thousands of Indian freedom fighters, including Gandhi, Tilak, were arrested on this law.  Nehru said this in Parliament in 1951 on the sedition law:

Now so far as I am concerned, that particular section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better.

And yet, when India became independent, instead of scrapping this draconian law, it was continued, replacing the terms ‘Her Majesty’ and ‘Crown Representative’ with the ‘Government of India’.  The British master lefts, but the Indian masters came in.

And Gandhi said in 1922:

Section 124 A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen.

Affection cannot be manufactured or regulated by the law. If one has no affection for a person, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.

This draconian law which was used to put most of our freedom fighters in jail during British Rule is now being used against Indians by the Indian Government.  So one needs to ask – are we really free?  And look at how the law is worded.   Anyone who brings hatred or excites disaffection towards Indian Government will be punished for life.  According to me, almost every Indian can be charged with sedition because many of them are really disgusted with their government and express utmost contempt towards all its administrators. 

Suppressing our youth

What kind of a nation are we building when we set an example that you cannot even use Facebook to expresses what you really think.  Can’t a young girl write:

Respect is earned, not given and definitely not forced. Today Mumbai shuts down due to fear and not due to respect.

I can easily imagine my daughter writing something like this when she grows up.  And I would be a proud father.   But what if she gets arrested for such a message? Now, that I know what could happen to her, how do I raise her?  Should I instill the fear and ask her to suppress her thoughts because her outspokenness may land her in jail one day? Should I start putting up barriers around her thought process, telling her that she cannot even express her thoughts however genuine they are just because some people may find them disagreeable?  What kind of society are we creating for ourselves?

Some people think it is a small aberration, something that can be easily corrected.  ‘See, the girls were let out on bail the same day, so what’s the big deal? Can’t you tolerate this for the sake of the great man who died?’ 

But this is no small thing.  The message is already passed to millions of parents across the nation after these two young girls were arrested – that they can’t allow their kids to express themselves freely.

Which parent would want to see his kid arrested for posting an innocuous message on Facebook?  Already the Indian parent is over-protective.  Now, he will become hyper-over-protective, telling his kids to stop expressing their opinion on political, social and religious issues.  The middle class which is already distanced from and disenchanted with Indian politics will now move further away.   Is that a small thing when an entire generation of parents becomes squeamish suppressing their kid’s expressions?

Who benefits from these insane laws?

Most people in India tolerate these insane laws because they think these laws must exist for some real purpose.  “Why would they exist otherwise?’ they reason. 

These insane laws are there only for one reason.  For the rich, the powerful, the rulers and politicians, the godmen and swindlers, to shut up anyone who says anything against them!  These are the tools, the whips, and the lathis that wolves use to keep the sheep suppressed and feared.  And how do they get these tools?  We give them to the wolves when they create fear amongst us!

The rulers tell us that we need these insane laws to protect the common man from an imagined enemy.  That enemy is a terrorist to the common man, a foreign army to the citizen.  But sometimes the common man accepts these insane laws because he interprets his enemy in his own way - Muslims for Hindus, men for women, upper caste for lower caste, and so on.

We are asked to accept a tradeoff between the protection that the state offers us through these insane laws and the unfettered freedom we would get without these laws.  And many a times, when faced with imaginary enemies, people tend to give up their freedoms hoping that these laws would indeed provide them the security.  Many of us seek protection as long as we believe we are not the perpetrators but the victims.  The Hindus who fear the onslaught of Muslim terrorists gladly accept POTA, ASPFA, TADA, etc.  The religious people who fear the onslaught of other religions or atheists gladly accept the insane laws that protect their ‘religious feelings’.  The patriots who fear the enemy lurking within gladly accept the sedition laws. 

And that’s how the wolves are given the power to create these laws to protect us.  Sometimes they go overboard and create laws that are subjective in nature.  These insane laws exist because it allows these wolves in power to suppress anyone at any point of time. 

When the police swooped upon those young girls, that’s exactly what they were doing.  They were using an insane law to send a message to everyone.  That we are all sheep, who need to continuously fear the wolves, that we should just adjust, keep our voices low, comply, and not raise our voice against them. 

That’s how autocracies are created.

India is a demautocracy – a flawed democracy which is in fact an autocracy.  The people continue to believe they are in a democracy when in fact they elect an autocracy every five years.

Unless the sheep rises up to say, we don’t need this over-protection from the state, we don’t need these insane laws that are designed to protect us from imaginary foes, we are quite OK without them, let us offend each other, let us criticize each other, we don’t need the state to intervene each time someone puts up a joke on a politician, or a religious leader, we don’t need the state to intervene each time someone writes a book, or authors a play, or directs a movie, we don’t need the state to intervene each time someone criticizes a religion, we will not be really free.

Right to Offend

In the ‘right to freedom of expression’ is included the ‘right to offend’.  It is implicit.  But since the Right to Freedom of Expression is curbed so much and so many times in India to protect the offended from getting offended, I think it has become necessary to explicitly say that we as Indians have the right to offend, anyone, anywhere, in any form. 

Right to Freedom of Expression should explicitly say that it includes the Right to Offend.  People of this country should be allowed to offend others.  Indians should be able to speak up and say what they want to say without the fear of prosecution or persecution from those whose sentiments are easily hurt. Without this right, the freedom of expression becomes hollow, bereft of any actual freedom.   Unless we guarantee the Right to Offend, we will continue to see these insane laws being used to make insane arrests of innocent individuals whose only crime was to speak up their mind. 

The Right to Freedom of Expression makes it clear that not all opinions and ideas are agreeable to all.  There will be disagreeable messages, disagreeable books, disagreeable art, disagreeable plays, disagreeable opinions, and disagreeable criticism.  In fact, many of these will be scathing in their attacks of all those who are in power, all those who are famous, and all our sacred symbols. 

The very basis for a stronger and effective democracy is to allow the voice of dissent, knowing very well that this voice of dissent is not always presented in the most agreeable form.  It will come as insults, rants, swear words, blasphemies, and depictions which are downright scandalous.  And yet, it is the duty of the state to protect that dissenting individual from the onslaught of powerful people, powerful groups and powerful institutions. 

It is not the leader, whether he is religious or political, not the administrator, whether he is a Minister or a Collector, not the famous personality, whether he is a cricketer or Bollywood actor, that needs to be protected and defended against such onslaught of disagreeable criticisms, but it is that common man, who tweets, who posts an article on a blog, puts a message on Facebook, or sends an e-mail or takes up a mike to speak up in a small gathering, that needs to be protected from the onslaught of those who get hurt and offended by those words of disagreeable expressions.

Right to Offend is implicit in Right to Freedom of Expression, and unless this nation grows to embrace it, we will continuously stifle the freedom of our youth, our boys and girls, our local leaders, our journalists, our writers, our artists, and our musicians.   Unless we have this Right to Offend, our young kids will grow up in a society which continuously pushes them to conform, to fit in, to lower their voice, to curb their original thought, to become another mediocre Indian who lost all the spirit to fight back or the passion to defend his rights, to just become a zombie who tolerates every act of oppression and suppression without uttering a word of defiance, tolerating his corrupt politicians without raising his voice, enduring the discrimination without protesting, becoming an engineer without iota of creativity, becoming a scientist without original thought. That’s the kind of nation we become, without this Right to Offend.

Right to Offend is one of the fundamental rights.  Without this right we cannot scrap the insane laws that allow the politicians to arrest anyone who criticizes them, the religious godmen to suppress any expose, the powerful to suppress and oppress the weak forever, the society to suppress and extirpate the originality and creative expression from its youth.  We have to give up these pretentious protections, these unnecessary safeguards, and instead we should mature up as people to tolerate the criticisms of our religions, our icons, our idols, our sacred symbols.  Unless we do that, we will never be free.

[Related Articles: Freedom from persecution, Scrap the Insane Laws, Immediately, 'You hate me, I arrest you', Rushdie and Husain: Casualties of an Immature Democracy, Run away from Indian Flag, Scrap sedition laws, 'Our sentiments are hurt',