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INDIAN CONSTITUTIONAL LAW REVIEW: EDITION I (JANUARY 2017)

MUFFLED FREE SPEECH: CONSTITUTIONALITY OF BANS


DUE TO HURT RELIGIOUS SENTIMENTS
Yashika Jain
National Law University, Delhi

ABSTRACT
Wendy Doniger’s The Hindus: An Alternative History, a book that was aimed at exploring realities of
Hindu culture and deciphering the complexity of its traditions, was recently withdrawn from the markets
by its publishers due to the case filed against it on account of the standard allegation: Hurting the
sentiments of Hindu Community.150 India cringed at the news of ever-increasing intolerance in her
inhabitants and updated the long list of forms of speech and expression which have been banned within
her boundaries. Unfortunately, this was not the first time where the country witnessed unreasonable
criticism of a literary work, the author being harassed, and her freedom of speech being restricted . As
a hallmark of liberal democracy which sheltered all forms of human expression, the country had
enshrined freedom of speech and expression in its Constitution. This has always been the weapon to
fight against injustice for the million men and women she harbored. But now, the situation has become
heartbreaking as the freedom to express oneself freely has lost all its meaning. Under the garb of
religious sentiments, every form of criticism of religious cultures or historical interpretation of religious
texts is being muffled. Gandhi was right in saying "It is good to swim in the waters of tradition, but to
sink in them is suicide."151

This article addresses this issue and argues that the restrictions that are imposed on various forms of
speech and expression, on the pretext of hurting religious sentiments, are unconstitutional. It also
contends that the executive misapplies the law, without giving due consideration to the contours of the
freedom as interpreted by the judiciary. This shall be done by looking at the scope of freedom of speech
vis-à-vis religious beliefs and the manner in which this interplay has been understood in Indian
jurisprudence. The next section would look into the historical background and the purpose of Section
295A of IPC under the ambit of which the claims for restricting free speech are entertained and then
argues that the purpose of the Section is being defeated by imposing unnecessary restrictions on free
speech. In the subsequent section the role played by the executive in furthering the intolerance is
discussed which is followed by a brief conclusion.

FREEDOM OF SPEECH AND JUDICIARY’S APPROACH

150
Srinivas Burra, Decriminalizing Creative ‘Offence’, 49 ECONOMIC & POLITICAL WEEKLY 18 (October
4, 2014), 18.
151
Vijay Prashad , Wendy Doniger's book is a tribute to Hinduism's complexity, not an insult, THE GUARDIAN,
(February 12, 2014) available at http://www.theguardian.com/commentisfree/2014/feb/12/wendy-doniger-book-
hinduism-penguin-hindus.

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The Constitution of India guarantees freedom of speech and expression as a fundamental right
under Article 19(1)(a) and extends such freedom to an extensive range of artistic, scientific,
religious, and philosophical forms.152 However, this Article has not been framed in absolute
terms and is subject to reasonable restrictions in the interests of […] public order, decency or
morality, […] or incitement to an offence”.153 The grounds for restriction are broadly worded
and the qualifier of reasonableness gives a wide discretion to the courts to determine the
contours of free speech. In such scenario, it becomes essential to look at judicial
pronouncements to understand the law since much is dependent on the approach that the
judiciary takes while interpreting constitutional provisions.

It has been noticed from the inception of Article 19, that the approach taken by Indian judiciary
is to zealously protect the freedom of speech and expression as well as prevent unnecessary
restrictions. Two major cases154 in 1950 brought to the front “inherent tensions between
balancing freedom of speech and promotion of national security and sovereignty.”155 The
courts interpreted the ambits of ’security of state’ narrowly and rejected the idea of reading
down public order into it. The final scenario was such that even an offence such as murder
could be preached, as it would not be covered under any of the grounds available under Article
19(2).156 In such circumstances, it became imperative to have a separate ground that would
cater to the protection of public peace.

Nehru, concerned with public safety, law and order, immediately initiated the enactment of the
first amendment which led to the addition of ’public order’ as a ground for restriction. Apart
from that, as a matter of compromise, he also allowed for addition of the word ‘reasonable’ to
qualify the restrictions under Article 19(2). However, even after the amendment, the liberal
approach towards free speech was clearly reflected in various landmark cases. Courts favored
free speech and consistently upheld freedom of speech as the foundation of all democratic
institutions157 and the Ark of the Covenant of Democracy.158 Strict interpretation of the Article
persisted and to justify the same, one of the judges opined, “censorship in a free society can be

152
RODNEY A. SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 2 (2011).
153
Art 19(2), Constitution of India 1950.
154
Romesh Thapar v State of Madras AIR 1950 SC 124; Brij Bhushan v. State of Bihar AIR 1950 SC 129.
155
Lawrence Liang, Reasonable restrictions and unreasonable speech, INFOCHANGE AGENDA (July 2011)
available at http://infochangeindia.org/agenda/freedom-of-expression/reasonable-restrictions-and-unreasonable-
speech.html.
156
Ibid.
157
Supra Note 5.
158
Bennett Coleman & Co. v. Union of India & Ors., [1973] 2 S.C.R. 757 at 829.

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tolerated within the narrowest possible confines and strictly within the limits contemplated in
constitutional order.”159

Even while interpreting reasonableness of restrictions, such approach was evident. The Courts
endeavored to proceed in a "fair, free and liberal spirit"160 so that in no circumstance can the
qualifier engulf the freedom itself. Judges have recognized the subjectivity that is inherent to
the standard of reasonableness about which Nehru was concerned in the first place and have
stressed on the same in various judgments.161 In a case where an article was banned on the
grounds that it would incite violence and disrupt public order, the court stated that the focus
should be on the importance of atmosphere in which the article was likely to be read. 162
Similarly, in D.C. Saxena, the court held that expression must be analysed from the
“perspective of the audience, the place at which he speaks, the scenario, the reaction of the
publication and the purpose of the speech”.163 As a result of all of this, reasonableness of
restriction is understood as a restriction, seen from the eyes of a reasonable man,164 which is
not arbitrary and in excess of public interest165and which has proximate relationship with its
object.166

Once the ground of public order made its way in Constitution, another impediment to free
speech was put in by the legislature in the form of Section 295-A of IPC, under which free
speech can be restricted on account of offense to religious sentiments.167 However, the Courts
again handled this liberally. Apart from one Supreme Court’s judgment168, which widened the
scope of public order by remarking that mere tendency of the speech to create public disorder,
without proof, of actual occurrence would suffice for imposing restriction,169 Courts have kept
high threshold for justification of any restriction under this ground.

In S. Rangarajan v. P. Jagjivan Ram and Ors170, a movie criticizing the caste-based reservation
policy was banned as it allegedly hurt the sentiments of certain section of the society. 171 The

159
Picture International v. Central Board of Film Certification A.I.R. 2005 Bom. 148.
160
Harvey M. Grossman, Freedom of Expression in India, 4 UCLA L. REV. 64 (1956-1957) 64.
161
State of Madras v. V.G. Row AIR 1952 SC 196.
162
State of Bihar v. Shailabala Devi [1952] S.C.R. 654.
163
D.C. Saxena v. Hon’ble CJI (1996) 5 SCC 216.
164
Supra Note 13.
165
Chintaman Rao v. The State of Madhya Pradesh [1950] S.C.R. 759.
166
Supdt., Central Prison v. Ram Manohar Lohia, AIR 1960 SC 633.
167
Ramji Lal Modi v. State of Uttar Pradesh AIR 1957 SC 620 ¶ 9.
168
Supra Note 18.
169
Ibid ¶ 9.
170
(1989) 2 SCC 574.
171
Ibid ¶4.

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Court ruling against the ban held that State’s inability to handle hostile audience cannot be the
justification for a restriction, and it is the duty of the state to prevent such problems as well as
protect freedom of expression.172 On the aspect of actual danger, the court held that freedom
of expression cannot be censored unless community interest is endangered and the expression
of thought is “intrinsically dangerous to public interests.”173 Thus, the anticipated danger to
public order should not be far-fetched and there must be a proximate and direct nexus with the
expression.174

Courts have raised the threshold of public disorder to be proved for restricting free speech, by
virtue of laying down certain standards. They include the degree of disturbance, the effect on
the life of the community,175 and disturbance of the current of life of the community as opposed
to mere effect on individual tranquility and law and order176 . Thus, on analysis of precedents,
it is clear that judiciary has actually acted as the guardian of free speech and has aimed at
facilitating free flow of ideas in the democracy.177 In lieu of such a clear stand by the judiciary,
one is then left to question the very constitutionality of the bans that artists in India very
frequently face owing to hurt religious sentiments. As answer to the same again lies in
analyzing judicial approach

CONSTITUTIONALITY OF BANS IN INDIA


Repeatedly, Indian governments have attempted to muffle the ideas and expressions of artists
and academicians that are not in consonance with notions of a particular section of society, by
virtue of. Section 295A of the IPC.

In 1920s, a couple of articles criticizing prophet were published that adversely affected the law
and order situation due to communal disharmony. As a result of this, there arose a need of a
law that could impose restriction on literature that could injure sentiments of any community
and lead to loss of public peace. However, legislators were also concerned about protecting
bona-fide criticism of religious texts aimed at bringing religious reforms and honest work of
historical researchers, while balancing the protection of religious sentiments.178 Even till the

172
Ibid ¶48.
173
Ibid ¶42.
174
Ibid.
175
Arun Ghosh v. State of West Bengal, [1970] 3 S.C.R. 288.
176
Supra Note 17.
177
S. Khushboo v. Kanniamal (2010) 5 SCC 600.
178
Neeti Nair, Beyond the ‘Communal’ 1920s:The Problem of Intention, Legislative Pragmatism, and the Making
of Section 295A of the Indian Penal Code, THE INDIAN ECONOMIC AND SOCIAL HISTORY REVIEW 317
(2013), 332.

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end, most were not convinced whether after adding 295-A to the IPC, the liberty to freely
express opinions without the fear of being prosecuted would remain. Yet due to the gravity of
situation at hand, the amendment was proceeded with and Sec. 295-A was added. These
legislators never could have imagined the extent to which this Section would be misused in the
times to come.

In the present times, the process of banning expression is at full swing and logic has taken a
backseat. Creative, artistic and academic freedom in the country is under attack, and balance
between the freedom of expression and the religious sentiments of the society, as sought by the
amendment, has been long lost. Few years back, members of Christian community protested
against screening of a movie based on Dan Brown’s book, The Da Vinci Code. According to
them, the movie insulted Christianity and hurt their sentiments since it distorted the Bible and
depicted Jesus as a married man.179 Succumbing to demands of the protestors, the government
banned the movie in four states under Section 295-A.

In the judicial pronouncements regarding the interplay between freedom of speech and sanctity
of religious beliefs, the threshold to ban the expression in the interest of public order is clearly
very high in all cases subsequent to Ramjilal. Mere dissatisfaction of few members of
community with the way their religion is depicted is not “dangerous to the community interest”
and thus the Constitution does not allow sheltering the same “in the interest of public order”.
When this case reached the High Courts, it was observed that the issue is not whether the
interpretation of public order is right but whether the public has the right to decide whether to
accept or reject such alternative interpretation,180 and “whether the right of an individual to
be a non-conformist is a protected value in contemporaneous civil society.” 181 The above
questions were answered in favor of freedom of speech and the ban was held to be
unconstitutional. The court, referring to previous judgments, made it clear that public
discussion is a basic feature of a democracy and it cannot prosper unless divergent views are
permitted to be expressed, irrespective of their correctness.182

Similar was the case of Indian painter, M. F. Husain, who was forced into exile after his
paintings were vandalized for hurting Hindu religious sentiments through nude picturization of

179
Monica Chadha, India Catholics target Da Vinci, BBC (May 10 2006) available at
http://news.bbc.co.uk/2/hi/south_asia/4759111.stm.
180
Sony Pictures v State of Tamil Nadu, (2006) 3 MLJ 289 ¶34.
181
Ibid ¶ 23.
182
Supra Note 21.

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their deities. The Supreme Court again held the restriction unreasonable and noted that erotic
sculptures abound on the walls of Hindu temples and it is not reasonable to consider nudity, a
ground for restricting speech in the interest of public order.183 The court stated that diversity in
expression of views encourages debates and that cannot be shut out.184

Thus, the stand of judiciary overall makes it clear that bans that the government mindlessly
imposes on the freedom of expression cannot be justified only on the grounds of religious
sentiments; the content of the work and intention of the author has to be taken into consideration
along with the actual impact that it can have on a reasonable audience. Courts have already
observed that expression has to be seen from the perspective of reasonable and strong-minded
men, and not those of weak minds, who scent danger in every hostile point of view.185
Constitution has never aimed at giving the reins of the freedom of expression to intolerant
group of people.186 Every person as a matter of right has the freedom to project a message that
is not approved by others and such right is part of a democratic give-and-take which cannot be
complained of.187 This plethora of bans is clearly unconstitutional and need to be curbed.

CONCLUSION
Due to repeated misapplication of Sec. 295-A at the behest of the government, the very purpose
of the section to protect the “honest-writer” stands defeated. Be it a work of historian or an
academician or an artist, there is no place left for bona-fide criticism. Now the logical question
that follows is that inspite of the Constitution and the Courts guarding the freedom of speech,
why has it fallen on hard times? Why do we still have incessant bans on every work that tries
to put forth a different picture of our religion? This is because in most cases the banned
expression does not even get the opportunity of being judicially scrutinized. Under the veil of
protecting religious sentiments, the State practices and propagates Heckler’s veto: the tactic by
the state of silencing free speech for the dread that it may offend the audience and lead to law
and order problem.188 While in some cases the government acts itself and bans the work, in
others it decides to sit back and let the fundamentalist elements create a ruckus to prevent the
work from reaching audience.

183
J. Venkatesan, Husain fought legal battle against vandals, puritans, THE HINDU (June 10, 2011) available at
http://www.thehindu.com/news/national/husain-fought-legal-battle-against-vandals-puritans/article2091052.ece.
184
M.F. Husain v Raj Kumar Pandey JCC 2008 1434 ¶130.
185
State of Maharashtra v. Sangharaj Damodar Rupawate, (2010) 7. SCC 398.
186
Ibid.
187
Id.
188
Chinmayi Arun, Freedom of expression gagged, THE HINDU (Feb 15, 2013) available at
http://www.thehindubusinessline.com/opinion/freedom-of-expression-gagged/article4419285.ece

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An example of the same was cancellation of Salman Rushdie’s video-link at Jaipur’s Literature
festival, where representatives of Muslim organizations entered the venue and threatened to
use violence in order to stop Rushdie from expressing himself.189 The police had blatantly
refused to guarantee security to the audience in such circumstances. In M.F. Husain case, it has
been noted that though the paintings were made in 1970s, it was only after two decades, that
they were vandalized.190 It is no coincidence that during that period, India was witnessing
emergence of Hindutva politics. The Supreme Court has denounced Heckler’s veto long back
by stating that free speech must not surrender to “threat of demonstration and processions or
violence”191 and it is state’s duty to protect the freedom of expression rather than pleading its
helplessness to control hostile audience.192

Judiciary has been consistently trying to ensure protection. Even in the recent Shreya Singhal’s
case, it further raised the bar and held that freedom of interest cannot be curbed only in public
interest.193 But it cannot actually change anything, unless the state itself decides to change its
attitude. Along with the state, people will have to learn to segregate speech targeting religion
and inciting violence against a particular religious group from other forms of honest critical
speeches. Not everything that is not a part of mainstream ideology must sought to be restricted
under the array of the ‘hate laws’ and then only will the freedom of speech be realized in its
true sense.194

189
Karan Singh Tyagi, The heckler’s veto, INDIAN EXPRESS (Jan 31 2012) available at
http://archive.indianexpress.com/news/the-heckler-s-veto/905698/.
190Devika Mittal, Art Made Political: The Story of M.F. Hussain, SOUTH ASIAN UNIVERSITY (May 27,

2013) 2 available at http://ssrn.com/abstract=2270548.


191
Supra Note 22.
192
Ibid.
193
The Striking Down of Section 66A: How Indian Free Speech Jurisprudence Found its Soul Again, INDIAN
CONSTITUTIONAL LAW PHILOSOPHY (March 26, 2015) available at
https://indconlawphil.wordpress.com/2015/03/26/the-striking-down-of-section-66a-how-indian-free-speech-
jurisprudence-found-its-soul-again/.
194
Ibid.

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