India: Watch What You Say

Everyone knows the ongoing case of Free Speech vs. the Communist Party of China. We pay too little attention, by contrast, to the struggle for freedom of expression in the free or partly free countries of South and Southeast Asia. Their controversies may be more fragmented and incremental than the often frontal confrontation with party-state censorship in China, but the implications for global freedom of expression in the Internet age are almost as large.

These countries do, after all, include India, which is the world’s largest democracy, its second-largest emerging economy, and, given China’s aging population, will in the foreseeable future become its most populous country. India, by itself, has the potential to be a swing state in the worldwide debate about the terms and limits of freedom of expression. Yet smaller countries sandwiched between those giants, such as febrile Thailand and today’s dramatically changing Burma, can also, by their example, have a significant impact both on the region and on wider understandings of such slippery notions as “Asian values.”

Earlier this year, I spent nearly a month in India, Thailand, and Burma, talking and learning about free speech issues there. Here, in the first of two dispatches, are a few notes from India—and some tentative reflections upon them.

Delhi

On the dusty pavement of Dr. Rajendra Prasad Road, in the center of New Delhi, a man squats on his haunches, near a poor family who appear to be living on the street. But what is that object the squatting man holds in his hand? It is not just a mobile phone; it is a semi-smartphone, and he seems to be playing quite expertly with its settings and apps.

Just across the Rajpath, New Delhi’s grandiose version of the Mall, my wife and I find—mounted on an imposing boulder in front of the National Museum—a metallic reproduction of the third-century BCE edicts of King Ashoka. This is one of the most ancient public policy documents to advocate something akin to religious tolerance (to use the modern word), but also care and liberality of spirit in the way we speak about other people and the things they hold sacred. Free speech and its limits, then, discussed in India some 1,900 years before John Locke.

Less than a mile away, in his tiny office opposite the Supreme Court, sits Advocate Prashant Bhushan—a precise figure with a neat mustache, Hercule Poirot in Indian lawyer’s garb. He shows me a petition that he will shortly present to the “Hon’ble Court.” Its argument is that several sections of the country’s Information Technology (IT) Act are so loosely drawn that they violate three articles of the Indian constitution, including its own Article 19, which protects freedom of expression.

The wording of the IT Act is indeed overbroad. The power to block a website or social media outlet, for example, is granted where any government officer

is satisfied that it is necessary or expedient so to do in the interest of sovereignty, or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above.

On this basis, government officials continue, in a quite untransparent way, to block hundreds of websites and Facebook pages.

The petition goes on to point out that another provision of that act, Section 66A, has recently been abused in a still more outrageous way. Last November, the city of Mumbai (Bombay) was almost shut down to mark the death of Bal Thackeray, founder of Shiv Sena, an extreme Hindu nationalist party with a strong following in the state of Maharashtra. Thackeray’s supporters, the so-called Shiv Sainiks, have a long record of violent intimidation. An independent inquiry by a High Court judge found that Shiv Sena “took the lead in organizing attacks on Muslims” during intercommunal riots in Mumbai in 1992 and 1993.^*

A twenty-one-year-old student called Shaheen Dhada, who comes from a Muslim family apparently well known in the small town of Palghar, some seventy miles up the coast from Mumbai, posted a message on her Facebook page saying, “With all respect, every day, thousands of people die. Just due to one politician died a natural death, everyone just goes bonkers.” And she concluded: “Respect is earned, given, and definitely not forced. Today, Mumbai shuts down due to fear, not due to respect.” A student friend of hers, Renu Srinivasan, “liked” her comment on Facebook, adding, “Everyone knows it’s done because of fear!!! We agree that he has done a lot of good things. Also we respect him, it doesn’t make sense to shut down everything! Respect can be shown in many other ways!”

All hell broke loose. According to a report by a BBC journalist, who visited Shaheen in her hometown a few days later, within twenty minutes she started receiving calls from friends advising her to delete the comment and visit the local police station to make a written apology. She did so, joined by her friend Renu, and found an angry crowd outside. Two women slapped her as she walked in. Then a mob, apparently including Shiv Sainiks, ransacked the small private clinic of her uncle, an orthopedic surgeon. The students were kept in prison cells overnight, partly for their own protection, and then released on bail.

They were initially charged under Section 295A (“deliberate and malicious acts, intended to outrage religious feelings”) of the Indian Penal Code, which in large part dates back to the code originally drafted by a committee chaired by the historian Thomas Babington Macaulay, and adopted by the British Raj in 1860. This was changed to Section 505-2 (“statements creating or promoting enmity, hatred or ill-will between classes”) before they were finally charged under, yes, Section 66A of the IT Act—“for sending offensive messages through communication service, etc.”

A national and international counterstorm of indignation then broke around the heads of the local police and courts—with, for example, the formidable chairman of India’s Press Council, former Supreme Court Justice Markandey Katju, thundering that “the entire nation is furious at this apparently illegal arrest.” (Speak for India, Katju!) In the end, after much legal-political-journalistic brouhaha, no charges were pressed against the girls—and Shaheen and Renu are back on Facebook. In early February, the Bombay High Court directed the Maharashtra state government to file an affidavit giving details of what action it proposes to take against the police who arrested the two students. So the boot was now on the other foot. But in the meantime, two young women had been through a traumatic experience—and there is no assurance in Indian law or social practice that something comparable will not happen again.

The Dhada Facebook affair illustrates several characteristic features of free speech controversies in India: the habit of taking instant offense, magnified and accelerated by the Internet and social media; the way that taking offense can rapidly turn to violence (here, the ransacking of the uncle’s clinic); the at once arbitrary and confused reactions of lower- and middle-level officialdom; sensationalist, highly commercial media stirring the curry pot of frenzy (against the young women or for them—never mind, just so long as it’s frenzy); an anthology of laws so expansive that local law enforcement officials can change their minds between two elastic paragraphs before finally settling on a third; and, last but not least, the fact that—in stark contrast with China—there is in India a process that still deserves the name “rule of law,” although one that is unduly influenced at most stages by political, sectarian, journalistic, and sometimes (it is widely agreed) financial inducements and pressures. All these features would again be on display in my next experience, at Jaipur.

Jaipur

The already famous literary festival in this fabled pink city woos the foreign writer with the promise of accommodation “in a palace,” with “elephants and dancing girls” (I quote the invitation e-mail from historian and festival guru William Dalrymple), with an array of both international and Indian writers—and now, it appears, with an annual free speech row. Last year, the Jaipur row was about the nonappearance of Salman Rushdie, either live or by video link, faced with reported threats of violence and the danger of public mayhem. (The festival is free and open to all, with well over 100,000 visitors trampling the lawns of the Diggi Palace in the course of its five days.)

This year the ructions began early. There was a rumpus about giving visas and offering a platform to visiting Pakistanis, since there had just been a gruesome beheading of an Indian soldier on the Line of Control that divides Kashmir between India and Pakistan. Assurances were also demanded by local magistrates and police that no visiting writer would again—as they did last year, in a show of solidarity with Rushdie—read from The Satanic Verses.

All this seemed to have been smoothed over as the third day of the festival, Saturday, January 26, brightly dawned. This is Republic Day, when the Republic of India celebrates its unbridled sovereignty on that ceremonial boulevard the Rajpath in New Delhi, with all the pomp and circumstance of the Soviet Union, the British Raj, and the United States rolled into one. Then, at a panel discussion entitled “Republic of Ideas,” it happened.

I was actually laid up in my hotel bed with acute laryngitis, literally unable to speak at my own scheduled panel on freedom of speech—which, however, did not stop India’s best newspaper, The Hindu, from reporting my active participation in that panel, and even placing some pithy observations about silenced voices into my absent and voiceless larynx. (“Moderator Timothy Garton Ash said journalists working for smaller publications—including bloggers, freelancers and independent journalists working in remote centres—faced the greatest risk of being silenced.” Well said, I say, though I never said it.)

Yet oddly enough, being confined to bed, rather than attending the “Republic of Ideas” panel before my own, proved be an advantage: for I saw what happened not as it really was but rather as Indian television channels presented it. With shrill commentary, in both Hindi and English, they played over and over a brief video clip of the prominent sociologist Ashis Nandy on a Jaipur literary festival stage saying, “It is a fact that most of the corrupt come from the OBCs [Other Backward Classes] and the Scheduled Castes and now increasingly Scheduled Tribes and as long as this is the case, Indian republic will survive.” (Both a full video and a transcript of the key passages are available on the festival website.)

Scheduled Castes includes the Dalit, formerly known, in the very bad old days, as “untouchables.” Scheduled Tribes means a long list of often grossly disadvantaged tribal people around the country. The political-legal category of Other Backward Classes embraces hundreds of millions of India’s poorest inhabitants. So if you only watched the TV news clip, Nandy had clearly just insulted a huge swathe of India’s most disadvantaged people.

Shock! Outrage! A local leader marches to the festival grounds at the Diggi Palace to protest. Media madness. Nandy is charged under the Prevention of Atrocities Act, no less. Other legal complaints rain down, not merely upon his head but also on those of the Indian producers of the festival, Sanjoy Roy and Sheuli Sethi. These complaints even result in a (soon overturned) order that they must not leave the city of Jaipur until the matter is resolved. In her argument to the High Court of Rajasthan, their lawyer calls this a claim of Vicarious Liability. Indeed. Imagine that Peter Florence, chief organizer of the UK’s largest literary festival, in the Welsh border town of Hay-on-Wye, were to be held responsible for every word said by every speaker on every panel at that Jaipur-in-the-Mud. Why, the Hitchens brothers alone—the late Christopher and the still very much with us Peter—would have got him locked up for years.

While Nandy’s remark was provocative, the context puts it in an entirely different light. As one can see clearly from the video and transcript, he is responding to a comment by Tarun Tejpal, a brave pioneer of Indian investigative journalism. Tejpal describes corruption as “probably a great class equalizer” for the poor. The Indian rich, he says, have built a system that protects their own privileged position. If you come “from the wrong side of the tracks,” as “roughly a billion people in this country would,” you can only get out of the dust by breaking “not God’s rules…[such as] you shall not kill anybody, you shall not rape anybody, you shall not oppress anybody” but “men’s rules…rules of examinations, taxations, privileges.” And then he mentions the name of one of the country’s most famous business leaders, the late Dhirubai Ambani. If Ambani had not subverted a few man-made rules, says Tejpal, he “would have still been filling petrol in a pump in Doha.”

It is in response to this rather moving comment that Nandy, himself well known for his sustained, humane engagement for India’s underprivileged, adds that “it is a fact that most of the corrupt” come from those castes, tribes, and classes. Which, given that they together comprise more than half the country’s population, seems statistically unsurprising. And he prefaces his comment by saying that this is “the most important part of the story which will shock you and it will be a very undignified and, how should I put it, almost vulgar statement on my part.”

So there they are, two Indian intellectuals speaking freely, overstating as one does to make a point, about an issue of vital importance to the future of their country. For which, burning oil and brimstone are then poured on Nandy’s and the organizers’ heads. As the Indian novelist Manu Joseph wryly observes: “I am from a country that is desperate to be offended.” But that brilliant generalization itself needs to be unpacked.

Reflections

The problem, it seems to me—subject to correction by those who know far more about India than I do—is that the country has at least three important features of its current system that actively encourage people to take offense in the name of some community or other.

Its almost entirely unregulated, often sensationalist television, press, and online platforms are engaged in furious commercial competition for eyeballs and online clicks. “If it bleeds, it leads,” says an old saw of American journalism. “If it feeds offense, it sells” may be the Indian equivalent.

The legal incentives for manufacturing and exploiting offense are another story. In crudest summary, what seems to have happened is that British colonial-era legislation, designed (to put the point with Nandyesque provocativeness) to “keep the natives quiet” by allowing the police and courts to go after anyone who says anything possibly offensive to any other caste, religion, class, or group, has actually been reinforced and extended—rather than pruned back—in the free, sovereign, democratic Republic of India.

A statement by the Jaipur police commissioner, made as controversy was looming over the festival, takes this logic to its absurd conclusion. “We’ll provide one hundred armed police personnel,” he said, according to a report in the Hindustan Times, “but organisers have been asked to ensure that no one’s feelings are hurt.” As I could not resist pointing out during a subsequent festival panel, a big tent in which “no one’s feelings are hurt” is one in which no one can say anything much—let alone risk intellectual provocation, irony, or, heaven forbid, satire.

Viewed in the kindest possible light, this legal system might be seen as a contemporary version of that generosity of spirit toward other sects, and self-restraint in talking about them, prescribed more than 2,200 years ago by King Ashoka. Seen from another point of view, it is an extreme version of multiculturalism (everyone “respects,” i.e., shuts up about, everyone else’s taboos). Regarded most critically, it can be described, with a nod to the Soviet Union’s “socialism in one country,” as a kind of colonialism in one country.

Yet whatever interpretation of the intentions you adopt, the effect is clearly not that intended. As the political scientist Pratap Bhanu Mehta observes:

If you can incite violence, or show that you are deeply offended, you will have your way. Indian laws are not protecting us against offensive speech; they are inciting us to produce it, and in turn provoking bans.

Then there are the politics—which in India are those of a hugely diverse democracy. So, yes, there are elections coming up this December in the state of Rajasthan, to which Jaipur belongs, and yes, all those people whom Nandy allegedly insulted have votes. Here, as those Facebook students also found to their cost in the state of Maharashtra, the laws enable—and media given to instant hysteria encourage—sectarian leaders of all stripes to magnify and exploit all kinds of difference for their own political advantage. This is “identity politics” gone wild.

Thus what seems most characteristic for India is neither a struggle for freedom of expression from an oppressive state (in this sense, the speech foundations of democracy are not threatened, although “sedition” clauses of colonial origin are sometimes abused), nor a never-ending argument about the right laws and policies for a federal state with which one strongly and positively identifies (the life’s work of Ronald Dworkin in relation to the United States), but rather a competition to bend the state and laws to your own sectarian, and, in the broadest sense, political ends, while complaining loudly when others do the same.

“But what business is it of yours?” a defensive Indian official might object. Clearly, there is a fine line between arguing for the liberal values in which one believes, and sounding like—or at least, being received as—a liberal neo-imperialist, trying to impose his “Western” values on other peoples. For obvious reasons, that line could be especially fine when one speaks as an Englishman in India. (Shortly after I left India, the British prime minister went to Amritsar, and rightly expressed our national shame at the criminal massacre of an unarmed crowd there in 1919.) But I felt far more political and cultural resistance to an Englishman’s advocacy of free expression when I visited China and Egypt last year than I ever did in India.

There are, moreover, answers to the question “what business is it of yours?” One answer is that our countries have signed up to international human rights agreements, in this case most relevantly Article 19 of the International Covenant on Civil and Political Rights, which mandate us to engage in an international conversation on these questions. More practically, a combination of mass migration and the Internet (increasingly carried on mobile devices) simply compels us to have such a conversation. That man squatting on his haunches in Prasad Road, New Delhi, may have been texting his cousin in London. His cousin in London may have been following, on the Internet or satellite TV, Hindi-language outrage at something said in Jaipur by a London-based writer of South Asian origin. And so on.

Emphatically and self-evidently, it must be for the Indians to decide what should be the rules and norms in their own country. But what might a liberal internationalist reasonably hope for the evolution of public speech in India? Realistically, this will not be a neo-Voltairian public sphere, as in France, with its strong notion of laïcité, described by Martha Nussbaum as “the establishment of nonreligion.” Some Indian liberals themselves look for progress toward a neo-Lockean public sphere, as in the United States: a secular state, but generous space in the public square for the expression, competition, and unlimited criticism of all creeds and none. (Yes, I know some atheists would dispute this as a description of today’s American reality, but take it, for the purposes of this discussion, as an ideal type.)

Is there perhaps a third variant, which one might call neo-Ashokan? The American historian Paul Starr has sharply characterized the French neo-Voltairian variant as freedom against religion, and the American neo-Lockean as freedom toward religion. An Indian neo-Ashokan version might be described as freedom with religion. This is not for a moment to suggest that there would not be an equal place for secular humanists, whose voices are still heard loud and clear in India’s public debates. But one has only to read those Edicts of Ashoka (carefully acknowledging all the difficulties in interpreting such an ancient text) to see that there is a centuries-old authentic Indian tradition of recognizing the rites and group identities of others. A tradition, to be sure, many times honored only in the breach, through fanaticism, intolerance, and bloodshed, ancient, modern, and contemporary, but nonetheless what the Indian scholar Rajeev Bhargava calls an available “conceptual resource.”

Is it too much to envisage a creative renewal and adaptation of that tradition, with a generous admixture of essential elements of modern liberalism, to produce a distinctively Indian public sphere, different from, yet not fundamentally incompatible with, the neo-Voltairian and neo-Lockean ones? Or, in the light of the experiences I have just described, is the very question hopelessly naive? Perhaps it is. But still, as the Germans say, man darf fragen: one may ask.

—A second article will look at Thailand and Burma.