It is common knowledge that Article 19 (1) (a) of the Indian Constitution lays down that “all citizens shall have the right to freedom of speech and expression”; it is also common knowledge that this fundamental right is not absolute, as the immediately following Article 19 (2) says “nothing prevents the State from making any law in the interests of the sovereignty and integrity of India, the security of the State […] public order, decency or morality, or in relation to […] defamation or incitement to an offence.” What is not common knowledge is that this fundamental right has almost been eroded completely.

The extensive Constitutional amendments carried out in 1972 replaced section 153 of the Indian Penal Code with sections 153 A and 153 B. These newly added sections are so extensive that today, as the increasing court cases establish, “the right to freedom of speech and expression” has almost been nullified.

The relevant sections are 153A and 153 B of the IPC which penalise “promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc.,” and committing acts “prejudicial to maintenance of harmony”; and sections 295, 295A and 298 which deal exclusively with “religious harmony”.

Government anxiety

It is obvious these sections mirror the anxiety of the then Indian government to maintain peace and harmony in a multi-religious, multi-cultural and multi-lingual nation. One can understand this anxiety considering the socio-political conditions existing in 1972: the Bangladesh war had just ended, and the nation was yet to recover from the huge refugee influx. It was also during that period that regional parties such as Shiv Sena and Asom Gana Parishad were becoming more strident, and religious-cultural organisations like the RSS and Jamat-e-Islami had become aggressive in their tone and acts. Still, there is no doubt that the Indian government over-reacted in enacting the draconian IPC sections referred to above and, later, in imposing the Emergency.

Identifying ‘intentions’

It is true that to be accused under these sections, the “intention” and “result” of the acts of the accused are crucial. But the problem is that it is almost impossible to concretely identify either “intention” or “public order” and “morality” as, at best, they can only be speculative. But what is not speculative is that scores of writers, speakers and thinkers of all castes, creed, and social positions have suffered, and are suffering, due to these “reasonable restrictions”. On most occasions, writers and speakers have been charged and arrested, causing them mental anguish and physical/ financial suffering. Apart from the well-known cases of Salman Rushdie’s Satanic Verses , banned in India, and M.F. Hussain being forced to flee the country, there are many others not so well-known. They include writers, journalists, artists and public speakers. Here’s a list of a few of such cases, in which the provisions of IPC 153 A and B, along with those of IPC 295-296 have been invoked, leading to immediate arrests and long-drawn court-proceedings.

August, 2013: Yogesh Master (his Kannada novel Dhundhi depicts Ganesha, a non-Aryan hero as appropriated and deified by the Aryans; accused of hurting religious sentiments of the Hindu community; charged and arrested);

May, 2013: K. Senthil Mallan (his historical research work in Tamil, Meendezum Pandiyar Varalaru, attempts to trace the roots of Mallars, Dalit community; charged with ‘sedition’ and ‘prone to disturb communal harmony’; book banned);

November, 2012: Shaheen Dhada and Renu Sreenivasan (their comments in Facebook regarding Bal Thackeray’s funeral procession; charged under 295 A and IT Act 66 A, with ‘hurting the religious sentiments of Hindus’ and arrested);

February, 2009: Ravindra Kumar and Anil Sinha (editor and publisher of The Statesman ; they reprinted the article “Why Should I Respect Oppressive religions?” by Johann Hari, published in The Independent ; charged under 295 A for ‘hurting the sentiments of the Muslims’);

July, 2008: Ashish Nandi (charged with potential for ‘communal violence’ for his article “Critically Analysing the Outcome of the 2007 polls’; got anticipatory bail from Supreme Court);

December, 2008: Lenin Roy (charged and arrested in Odisha for writing “pro-Naxalite” articles);

January, 2007: R.V. Bhasin (his book Islam: A Concept of Political World Invasion by Muslims , published in 2003, was translated into Hindi in 2007; Charged with ‘hurting Muslim sentiments’ and banned);

March, 2007: B.V. Seetharam (editor of Karavali Ale and periodicals in Kannada; charged with ‘defaming Jainism and hurting Jain sentiments’; arrested);

May, 2007: Chandramohan Srimantula (a student of fine arts in Gujarat and a Lalit Kala Akademi Award winner; charged with ‘making obscene religious images and hurting Hindu sentiments’ and arrested);

April, 1993: Nancy Adajania (a 22-year-old student of Bombay university; her article “Myth and Supermyth,” published in The Illustrated Weekly of India, on April 10-16, 1993, argued that ‘new nations, in their attempts to establish an identity, create icons out of the past heroes’; she took the examples of Shivaji, Lakshmibai the queen of Jhansi and Gangadhara Rao the king, to prove her thesis. The publication led to a chain of protests throughout Maharashtra; she was charged with defaming Shivaji and hurting the sentiments of Maharashtrians, and was immediately arrested; the editor of the weekly tendered a public apology).

The list is unending. In Karnataka alone, it includes Masti Venkatesha Iyengar (accused of hurting Veerashaiva sentiments in both of his novels), Shivarama Karanth (accused of hurting the sentiments of the Vishwakarma community), K.S. Bhagawan (accused of defaming Hindu Acharya and hurting Hindu sentiments and arrested); H.S. Shivaprakash, P.V. Narayana , Banjagere Jayaprakash (all three were accused of defaming Veerashaiva saints); H.S. Nagaveni (accused of hurting sentiments of the Vishwakarma community); Bhagawan and Govinda Rao (for a public lecture), among others.

One wonders if ancient and established religions like Hinduism, Jainism, Veerashaivism, Islam and Christianity are so vulnerable as to be hurt by a book or an article!

Turning the clock backwards

In this context, the remarks of Justice M. Saldanha, in his Bombay High Court judgment on the bail-application of Nancy Adajania, are worth recalling. He began, stating that the entire episode was “[d]istressing, misguided and misdirected,” and went on to comment that while charging a person under Section 153 A, especially a writer or a journalist, the concerned officers “should carefully evaluate the matter,” and then concluded: “This is very necessary if constitutional guarantees are to be safeguarded and concepts that hold good in the dark ages are not to be allowed to turn the clock backwards” (delivered on April 23, 1993). Indian authorities do not seem to have learnt any lesson from this judgment, delivered two decades ago; if anything, things have gone from bad to worse.

The task before all the writers, journalists, and artists today is clear and cut out; it is to exert pressure, through legal means, on the Indian Parliament either to repeal or amend the existing IPC sections 153 A and B, and 295-298; or, at least to define ‘the frame of applicability’ of the phrases “public order” and “decency and morality” in Article 19 (2) of the Indian Constitution.

(C.N. Ramachandran is a retired professor of English and a well-known literary and cultural critic from Karnataka)

Governments have ritually abused the latitude granted by the Indian Penal Code and the Constitution to harass, intimidate and arrest scores of writers, journalists and artists