To restore India as a liberal democratic nation, it will require more than a mere conduct of regular, supposedly free and fair, elections. We will need to shift the goalposts of our attentions to the fundamental tenets that make a democracy

It is disappointing, and even condemnable, that Penguin India capitulated to pressure from the Hindu far right in deciding to pulp all remaining copies of Wendy Doniger’s book The Hindus: An Alternative History. Penguin’s claims that Indian law — particularly Section 295A of the Indian Penal Code — makes it “difficult for any Indian publisher to uphold international standards of free expression without deliberately placing itself outside the law,” is only partially correct. The law on the subject is often onerous, and the courts’ interpretation of it is frequently inconsistent making the battle for free speech not only a difficult one, but also impossible to predict. Yet, by all reasonable accounts, Ms Doniger’s book, even if a most conservative reading of the law were employed, would not have been injuncted from publication. What’s more, the chances of Penguin and the author facing prosecution under Section 295A were distant and implausible. The publisher’s reasons for settling, therefore, appear, at best, insincere.

But, read together with, among other incidents, Bloomsbury India’s decision this past January to withdraw copies of The Descent of Air India, after a complaint for defamation filed by Union Minister Mr. Praful Patel, Penguin’s choice foretells a dangerous future: one in which publishers are unwilling to fight the law’s evils. It seems even the supposed vanguards of free speech are losing faith in the state that we live in — a democracy which suffers from an ingrained illegitimacy, where a person’s right to free speech is limited by the majority’s perceived levels of tolerance. To restore India as a liberal democratic nation, it will require more than a mere conduct of regular, supposedly free and fair, elections. We will need to shift the goalposts of our attentions to the fundamental tenets that make a democracy; our political debate must subsume the philosophy of rights.

It is easy enough to begin any discussion on this matter with the Constitution of India as anchor, for subject to certain limitations it grants a right to freedom of speech and expression. But, we would do well to set aside the document for a moment, and think about what rights a democracy, properly understood, must guarantee. Our tendency, unfortunately, is to often think of democracy as a form of majoritarianism, where the will of the greatest number ought to always prevail; we, therefore, seek to balance an individual’s right with the supposed interests of the larger society. If restricting certain speech would make the majority of us happy, then such societal happiness, it is argued, would constitute good reason for restricting such speech. But this model for framing the purport of our moral rights, as the legal philosopher Ronald Dworkin, among others, argued, is fundamentally flawed. It does not comprehend what democracy, which at its heart is an interpretive concept, really means.

If democracy were to be a truly legitimate form of government, it must contain certain inherent value; and since it is difficult to argue that majoritarianism has any such value over and above its ability to institutionalise the larger goals of a legitimate government, we must reject any definition of democracy that rests purely on the rule of the majority. In other words, democracy cannot be considered an end by itself, but must represent a means to attain justice. In order to be genuinely participatory, democracy must entail more than just a commitment to elections; it must treat certain fundamental rights as distinct and incapable of being transgressed purely on the caprice of the majority.

Our greatest failing as a nation is to allow whimsical decisions of the majority to override the most fundamental moral rights that we enjoy as citizens. When the Indian Constitution says, as it does in Article 19(1)(a), that citizens have a right to freedom of speech and expression, it is memorialising a particular moral right. The limitations that it places on this right through Article 19(2) by allowing the State to make reasonable restrictions in the interests, among other things, of public order, decency or morality, are therefore to be invoked only when compelling reason is presented. The question is: what constitutes compelling reason?

The grounds that the Constitution of India provides in Article 19(2), as its text says, ought to be reasonable. And what is reasonable is to be tested not on the threshold of majoritarian will, but on larger, scrupulous standards. For example, it would be reasonable to constrain speech if it is absolutely apparent that such speech would incite the committing of an offence. Such a test was, in fact, devised by the U.S. Supreme Court in the famous Brandenburg v. Ohio case: it is only speech that incites “imminent lawless action,” the court held, which is constitutionally unprotected.

Extending American law to the Indian context is often frowned upon, especially in the context of free speech, given that the U.S. Constitution contains no equivalent of Article 19(2). But it is important to bear in mind that both the First Amendment of the U.S. Constitution (which for many decades was thought only to be a bar against prior restraint of speech) and Article 19(1)(a) of the Indian Constitution are abstract expositions of the same moral principle. The restrictions that Article 19(2) imposes are, therefore, to be interpreted on the touchstone of the same moral guidelines. It is no doubt true that according free speech an absolute status, as in America, can give rise to a number of problems, where the inherent value of speech is lost. For example, the U.S. Supreme Court, seemingly with a view to uphold the First Amendment, allows big corporations to spend unlimited funds on political advertising, thereby treating companies on a par with real people. Free speech must unquestionably partake more than the ability of the wealthy to speak, and the state has an important role to play in achieving this goal. But the restrictions that the Indian government often places on speech have little to do with such concerns of equality.

On the contrary, speech is limited in the supposed interest of the majority on a utilitarian assumption that such restriction benefits the interests of the larger society. Where the impact of a certain speech is uncertain, the benefit of doubt must be accorded to the speaker; any divergent, utilitarian argument would run counter to the theory of rights. Unfortunately, the Indian Supreme Court — and concomitantly the courts below it — allows our right to freedom of speech to wither at the first expression of an objection, where violence is implausible let alone being imminent.

This is not to suggest that the Supreme Court has never upheld the right to free speech. There have been plenty of instances where the court has overturned bans on books, movies and other forms of expressions. If Penguin had indeed lost in the trial court, it is reasonable to presume that the higher judiciary would have overturned any injunction. But, collectively, the Supreme Court’s jurisprudence in allowing speech to thrive is so poor as to make the prospect of restraining prior governmental action or more principled decisions from the lower judiciary an abandoned dream. The court seems to lack the philosophical bent of mind to consider certain rights as inviolable, as superior to the impulses of the majority.

Take, for example, its decision in 2007 in Sri Baragur Ramachandrappa and others v. State of Karnataka and others. Here, the State government had issued a notification banning Dharmakaarana, a Kannada novel by Dr. P.V. Narayana on grounds that certain paragraphs in the book were objectionable, purportedly probing the character of Akkanagamma, the elder sister of the 12th century saint, Basaveshwara. The Supreme Court, contrary to questioning the government’s legitimacy in banning the book on dubious grounds that it hurt the sentiments of the “Veerashaivas,” when there was no threat of any violence, struck a dagger into the heart of free expression in India. What’s more, inexplicably, the court suggested that the onus to dislodge and rebut the government’s opinion that the offending publication was offensive lay on the novelist. This was a case of the Supreme Court justifying a totalitarian power at the hands of the state at the cost of our most fundamental rights. Regrettably, the decision is no aberration, but is symptomatic of the general approach of the apex court. That the decision represents the law of the land was made clearer when the Bombay High Court, in 2010, relied on the decision to uphold a ban on a book, Islam: A Concept of Political World Invasion …. Here, the court was unequivocal in holding that there needs to exist no clear and present danger to justify a ban on speech. It suffices to show, the court wrote, that “the language of the writing is of a nature calculated to promote feelings of enmity or hatred.”

The Supreme Court in framing its jurisprudence on free speech from the perspective of restrictions as opposed to the inviolability of the right has ensured that laws that are blatantly anti-democratic are allowed to stand. In the process, speech, which, in fact, incites offence, goes unpunished, while speech, which is found offensive by a given majority, is constrained on ambiguous grounds. What the court has effectively done is to say the government is entitled to bar speech when it believes that such constraints would benefit the community as a whole. These developments threaten not merely liberty, but democracy too. It is, perhaps, time we took our rights seriously.

(Suhrith Parthasarathy is an advocate in the Madras High Court.)