Freedom of expression in India

"Muslims in India have often sought shelter under Sections 153A and 295A of the Indian Penal Code (I.P.C.) for preventing every public discussion of their creed in general and of their prophet in particular.1 Quite a few publications which examine critically the sayings and doings of the Prophet or other idolized personalities of Islam, have been proscribed under Section 95 of the Criminal Procedure Code (Cr.P.C.) as a result of pressure exerted by vociferous, very often violent Muslim protests. Little did they suspect that the same provisions of the law could be invoked for seeking a ban on their holy book, the Quran."

"The murder of Shraddhanada finally made the British rulers turn this attitude into law: “In 1927, section 295A was enacted to extend the ease with which ‘wounding religious feelings’ by verbal acts could be prosecuted.” Apart from punishing the murderer, they sought to punish Shraddhanada as well, retro-actively and postumously...."

"Wendy Doniger and the four authors who wrote about the origin and meaning of Section 295A for the Journal of the AAR strictly keep the lid on this crucial fact. None of the contributors has let on that the trigger for this legislation was repeated unidirectional communal murder, viz. of Arya Samaj leaders by Muslims, nor that it was meant to appease the Muslim community. None of them so much as hints at this. Anantanand Rambachan even alleges that “the aggressive party was the Arya Samaj”... American Indologists including Wendy Doniger have always condoned religious discrimination on condition that Hindus are at the receiving end; they only protest when Hindus show initiative..."

"Art. 295A was never the doing of Hindu society. It was imposed by the British on the Hindus in order to shield Islam from criticism. The reason for its enactment was the murder of Pandit Lekhram in 1897 by a Muslim because Lekhram had written a book criticizing Islam. While the British authorities sentenced the murderer, they also sided with him by retro-actively and postumously punishing Lekhram. [...] It demanded the abolition of book-banning legislation, viz. Art. 295A of the Indian Penal Code and Art. 153A of the Criminal Procedure Code. These articles were not enacted by Hindus or in the service of a Hindu cause; on the contrary, they were meant to muzzle Hindus and prevent them from holding Christianity or Islam against the light."

"In the West, the enactment of secularism went hand in hand with deepening criticism of religion, which was pushed from its pedestal and recognized as just another fallible human construct, open to questioning and criticism. In India, by contrast, secularists cheer for the application, formally or in spirit, of Section 295A to outlaw religious criticism – except when it is Hinduism that gets criticized. And that is why the AAR scholars, in solidarity with their Indian secularist friends, have never moved a finger about minority-enforced censorship but made a mountain out of the Doniger molehill."

"The [Arya Samajs'] defiant stand against Islam was increasingly reaping the whirlwind... A pamphlet of the local Sanatana Dharma Sabha... contained an anti-Islamic poem. Frightened by the first Muslim protests, the Hindu minority convened and passed a resolution "regretting their error and requesting pardon". To appease the Muslim protesters, the authorities arrested Jiwan Das... Nevertheless, on 9 and 10 September 1924, Muslim mobs raided the Hindu neighbourhood, killing dozens of Hindus... The most outstanding Arya Samaji of the twentieth century, Swami Shraddananda, was killed by one Abdul Rashid.... When Abdul Rashid was hanged... Muslim clerics all over India held prayer-meetings for his martyred soul. Dr. Ambedkar testifies: "The leading Muslims, however, never condemned these criminals. On the contrary, they were hailed as religious martyrs."... In 1933, another Arya Samaji, Nathuramal Sharma, was taken to court for publishing a similar pamphlet as Lekh Ram's... in the courthouse itself he was murdered by one Abdul Qayum."

"Muslim leaders and Stalinist historians were raising a howl about Hindu chauvinism when it came to the notice of Arun Shourie, the Chief Editor of the Indian Express at that time, that some significant passages had been omitted from the English translation of an Urdu book written long ago by the father of Ali Mian, the famous Muslim theologian from Lucknow. He wrote an article, Hideaway Communalism, in the Indian Express of February 5, 1989 pointing out how the passages regarding destruction of Hindu temples and building of mosques on their sites at Delhi, Jaunpur, Kanauj, Etawah, Ayodhya, Varanasi and Mathura had been dropped from the English translation published by Ali Mian himself. This was a new and dramatic departure from the norm observed so far by the prestigious press. Publishing anything which said that Islam was less than sublime had been taboo for a long time. I was pleasantly surprised, and named Arun Shourie as the Gorbachev of India. He had thrown open the windows and let in fresh breeze in a house full of the stinking garbage of stale slogans."

"After the Babri structure came down, Shri N. Ram thundered at a conference in Delhi that the print media owed it to the nation as much as to itself to black out fully statements and activities of the Hindutva brigade."

"There are definitions of hate speech based on the Khan Market consensus as to who should be allowed to speak and who shouldn’t. If the Khan Market consensus approves, you can speak anything and be applauded for it. But if the Khan Market consensus does not like you, then whatever you say is called hate speech. Today, sharing one’s experience of custodial torture (or just saying ‘I am not a terrorist’) is considered hate speech. But when someone calls Hindus terrorists, that is not hate speech... One person cries and narrates her torture, of being (stripped) naked and ill-treatment, you call that hate speech. And an entire jamaat (community) was called terrorist, called Hindu terrorism, is not hate speech? My quarrel is with the different scales of neutrality."

"Generally, the death of a judge, in what seem to be mysterious circumstances, while presiding over a case against the second most powerful person in the country, and the closest associate of the head of the government, would be make prime-time television in a democracy. Similarly, the allegations of corruption against the family of the same person would have garnered media attention. But recent events in India prove otherwise. [...] But the more damaging development has been the role of the mainstream media in the face of government attempts to muzzle it. Just as in the judge story, there was silence about the corruption story in the media. Even when there was coverage, it was more about the defamation case filed by Mr. Shah rather than the merits of story itself. The rare television channel that has sometimes been critical of the Modi government and faced its wrath for doing so, succumbed, pulling down reportage about the Shah story. This is an extraordinary level of submissiveness displayed by the media. This must also be read in the context of the largest democracy’s abysmal ranking in the World . Last year, India ranked 133 out of 18 countries. And this year, it has declined to 136. Recently, the main mode of against journalists doing investigative stories has been through Strategic Lawsuits against Public Participation (SLAPPs), like the one filed by Mr. Shah. Journalists face severe challenges, including physical violence and threat to life, in carrying out their work. [...] So, the emerging “manufacture of consent” in favor of the ruling government does not happen only through active participation, or on criticism by the media, but also as a result of the egregious threats that the media personnel face."

"Jokes making fun of Mr. Modi, or Facebook posts of lay citizens, and films criticizing his government are met with police complaints, legal cases, and threats by the ruling party and its larger ideological family. BJP-led state governments have also introduced draconian bills to curb free speech. India’s democracy is at a critical juncture. After the Emergency declared by the Congress government in 1975 which legally curbed press freedoms, we have not witnessed such levels of abnegation of free speech. (The otherwise-activist Indian judiciary too has maintained a deafening silence on the judge’s death.) It would not be wrong to consider this present conjuncture as marking a deterioration in that regard."

"While all governments, in varying degrees, try to muzzle free speech or physically intimidate journalists, what is radically different under the Modi dispensation is the wider climate of intolerance fostered by the combustible combination of religion and nationalism aided by state power. This has led to unprecedented attacks against religious minorities on accusations like possessing/eating beef or the killings of those who are critics of the government. Dissent and criticism of government has been construed as an anti-national activity clearly demonstrated by the 40 sedition cases filed in 2016."

"If some people do not like a representation of art, there are other ways to counter it. I never support violent attack on artistic freedom. I also do not support the trend of issuing fatwa. But, there are politicians, who support or protest on the basis of religion. Why are rules being tweaked for one particular community in Bengal? Why did Mamata Banerjee’s government never allow me to work there, allow my books to be published? Freedom of expression, the most important character of a democracy, is always under attack for vested political interest. Nobody criticises things neutrally."

"Every ban and censorship hurt. But banishment hurts the most. Banishment took away the ground from beneath my feet. What I need now most is a firm footing to stand up somewhere to fight for the freedom of expression. I was banished from both East and West Bengal."

"The emphasis has been twofold: That the state knows, the state is right, the state must be privileged, and that citizen action is suspect, potentially disruptive and liable to punishment. It is in the backdrop of this subdued rights discourse and de-legitimised agency of the people that the current moment has unfolded wherein criticism is almost seditious, claiming rights for marginalised sections can be termed as waging war against the state and empathising with victims of social injustice is ridiculed or forbidden. The current regime has converted the penchant for sub-democratic state action into a fearsome art."

"The situation in India is far worse than it is in other countries. The French Marxist scholar Maxime Rodinson's biography of the Prophet, Mohammed, is freely available abroad: its English edition is published by Penguin. It traces the revelations which appeared from time to time - specially the ones pertaining to personal law - to the personal dilemmas the Prophet was facing at that turn: such an exercise by an Indian scholar would be shouted down, and his book banned. Ali Dasthti's, Twenty Three Years to which I have referred earlier shows in graphic details how the Prophet's attitude to one thing after another - to power, to the Jews, to those who did not fall in line, to women - changed after his position in Medina became secure... The same book, had it been written by an Indian, would have called forth demands for a ban, demands which would certainly have prevailed."

"And the situation in India has been getting worse over the years. Imagine one of us - who happens to be a Hindu - writing today, [...] There would be a howl - "fascism," "cultural imperalism" - and demands that the book be kept out of schools and universities. Yet the passage is Swami Vivekananda's - and he makes the point repeatedly in almost identical words."

"Imagine a scholar today referring to the "obvious defects of the Koran," to the "crudities of the Koran". (...) Imagine a scholar writing this today - the book could be pounded on, effigies of the author burned…Yet the sentences are from that most effusive - and one of the shallowest - apologies of Islam: M N Roy's The Historical Role of Islam. In brief, the situation has worsened over the decades. No one today could write even this much, and it is only the good fortune that our people do not read these older books which allows them to continue in circulation."

"The point about Khomeini's fatwa is that it has worked: it has intimidated into silence scholars and writers all over the world. And the agitation against Hasan will work too: it took three years for a Muslim scholar to say as much - or, as little - as he did. It will take twice that many years for another one to say half as much."

"And no one has contributed to making these things work, to smothering free inquiry and speech in this vital sphere as the liberals and secularists. We supported the ban on Rushdie's book at that time, writes a leading commentator, as we knew the reactions the book would provoke. Does that "prudence" not go to the fundamentalists to work up a fury each time they want to have their way? Is that not what they are doing now?"

"For example in Pakistan, as recently as October 31, 1991, all the five judges of the Highest Islamic Court ruled that the punishment for defiling the Rasul was death and not life imprisonment as the prevailing penal law provided. But in countries like India where the Shariat law no longer prevails, but where Muslim opinion counts, any critical discussion of the Prophet and Islam is regarded as lacking in good taste. It is unsecular, a great lapse from accepted ideological morality. Critical writings are as a rule edited out and even often banned."

"Are there no limits to what Muslims can demand, and get away with, in the imagined cause of their religion? ... There is no reason why our political leaders should have to start kowtowing and running scared everytime a bunch of semi-literate mullahs gets up and starts making a noise. ... We have just seen Shiv-Sena government in Maharashtra buckle under Muslim pressure and suspend the release of Mani Rattnam’s Bombay. It is a film about inter-religious marriage and the triumph of peace over communal hatred. ... After seeing the film they came up with a list of objections so absurd that they should have been considered ludicrous in our secular land but they have been taken seriously. They object, we are told, to the last shot. The Muslim girl while eloping with her Hindu husband carried the Koran in her hand. This was bad, they said, because it seemed to imply that her marriage had Islamic sanction. ... Nor did they approve of the film’s first scene which shows a woman lifting her burqa off her face.... Offence was taken, we are told, because a Hindu family was shown being burned alive. A Muslim family is also shown being similarly murdered, because this also happened in the terrible riots of 1992, but our Muslim objectors are selective in their disapproval."

"Ram Swarup, now in his seventies, is a scholar of the first rank.... No one has ever refuted him on facts, but many have sought to smear him and his writing. They have thereby transmuted the work from mere scholarship into warning. ... The forfeiture is exactly the sort of thing which had landed us where we are: where intellectual inquiry is shut out; where our traditions are not examined, and reassessed; and where as a consequence there is no dialogue. It is exactly the sort of thing too which foments reaction. (...)"Freedom of expression which is legitimate and constitutionally protected," it [the Supreme Court] declared last year, "cannot be held to ransom by an intolerant group or people." To curtail it in the face of threats of demonstrations and processions or threats of violence "would amount," the Court said, "to the negation of the rule of law and surrender to blackmail and intimidation."

"Do we realise how that hastily-ordered ban [of the book The Satanic Verses by Salman Rushdie] has changed India forever? .... When the Government promptly submitted to this illiterate hysteria, it convinced [Hindus] that secularism had become a code phrase for Muslim appeasement."

"India's constitution represents the second type. A list of limitations is attached directly to the freedom of expression clause. The list includes expression that interferes with the sovereignty and integrity of India...."

"By 1915, this attitude was changing. I refer to a legal ruling against Arya Samaj preacher Dharm Bir,who was found guilty under Section 298 of “using offensive phrases and gestures... with the deliberate intention of wounding the religious feelings” of the Muslims present in his audience, and under Section 153, for “wantonly provoking the riot which subsequently occurred.”.. Dharm Bir had delivered a public lecture critical of Islam, following which a group of Muslims beat up several Arya Samaj lecturers. Ten Muslims were convicted for rioting, but it was felt that something must be done to punish Dharm Bir and the Arya Samaj. The Arya Samaj was charged, and a judge was brought in who could assure conviction... Winning the case against Dharm Bir required a new position on religious controversy. The judge found it by condemning not only the tone of Dharm Bir’s language, but religious debate itself, when he declared, “logic has never been known to convert any one”; Dharm Bir “does not know that logic has never saved a soul and that religion is rooted in the emotions and sentiments”. Because religion is “rooted in the sentiments,” the judge concluded, religious debate is likely to provoke a riot, and that is all it can do. Religious debate is pointless and therefore unjustifiable; the right publicly to controvert arguments therefore does not properly extend to religion. To enter into religious debate is nothing but a provocation, an act calculated to arouse hatred. Therefore, it is intolerable."

"The association of sentiment and violence enshrined in section 295A was not only a product of concerns with law and order; it was also the result of a critical view of religious proselytizing. Section 295A was in- tended to provide a legal tool to restrain the religious criticism associated with proselytizing by the Arya Samaj."

"In 1927, section 295A was enacted to extend the ease with which “wounding religious feelings” by verbal acts could be prosecuted. The purpose was to curb religious violence by curbing provocative speech. But the strategic field the law put into place worked differently: it extended the strategic value of demonstrating that passions had been aroused that threatened the public peace, in order to induce the government to take legal action against one’s opponents. Section 295A thus gave a fillip to the politics of religious sentiment."

"Because religion is “rooted in the sentiments,” the judge concluded, religious debate is likely to provoke a riot, and that is all it can do. Religious debate is pointless and therefore unjustifiable; the right publicly to controvert arguments therefore does not properly extend to religion. To enter into religious debate is nothing but a provocation, an act calculated to arouse hatred. Therefore, it is intolerable."

"In India, the notion that to be truly tolerant in religion is to refrain from criticism of religion is a widespread secularist ideal. But this ideal has long been conjoined with the assumption that the party criticized will be unable to contain violent reaction. One result has been to give strategic value to violence as a way of proving the point."

"When coordinated acts of violence are justified as the inevitable result of hurt feelings, legal precautions against violent displays of religious passion may be said to have backfired."

"Historically the law was enacted to prohibit books that offended Muslims, and to silence Hindus... Section 295A was not instituted by Hindu society, but against it. It was imposed by the British on the Hindus in order to shield Islam from criticism. Thus...: “In 1927, under pressure from the Muslim community, the administration of the British Raj enacted Hate Speech Law Section 295(A)”... The reason for its enactment was a string of murders of Arya Samaj leaders who polemicized against Islam. This started with the murder of Pandit Lekhram in 1897 by a Muslim because Lekhram had written a book criticizing Islam. A particularly well-publicized murder took place in December 1926, eliminating an important leader, Swami Shraddhananda, writer of Hindu Sangathan, Saviour of the Dying Race (1926), next to VD Savarkar’s Hindutva (1924) the principal ideological statement of Hindu Revivalism. (However, the trigger to the murder lay elsewhere, viz. the protection he gave to a family of converts from Islam to Hinduism.) Moreover, there was commotion at the time concerning a very provocative subject: Mohammed’s sex life, discussed by Mahashay Rajpal in his (ghost-written) book Rangila Rasul, more or less “Playboy Mohammed”, a response to a Muslim pamphlet disparaging Sita as a prostitute. Rajpal would be murdered in 1929...."

"But if the Arya Samaj’s words provoked unwanted Muslims deeds, they were part of the problem and had to be remedied. However, in spite of this intention to prevent riots, the new law did not end the recurring Muslim murders of Arya Samaj leaders until WW2 nor the concomitant riots, as discussed by Dr. Ambedkar. It was the Partition that broke the Arya Samaj’s back, driving it from its power-centre in West Panjab with the Dayanand Anglo-Vedic College in Lahore. After Independence, anti-Islamic polemics were blackened as “communal” by an increasingly powerful “secularism”, and thus abandoned...."

"This present-day effect of Section 295A could easily convince the scholars to sign a petition against this undeniably despotic and un-secular law."

"Aug. 5, marks exactly one year since New Delhi revoked Indian-administered Kashmir's special status, splitting the state into two union territories— and Ladakh. [...] Information has been difficult to come by. Local media are often harassed by the police, and international reporters have struggled to get inside. Authorities barred internet access for several months after Aug. 5. While it returned in March, mostly at lowered speeds, the has once again banned high-speed internet for the next few weeks, ostensibly to curb protests and reporting from the region. A survey of Kashmiri college students found 90 percent were in favor of a complete withdrawal of Indian troops. Kashmiri leaders who have expressed anger over the abrogation remain under house arrest, including former Chief Minister ."

"It is a notorious fact that many prominent Hindus who had offended the religious susceptibilities of the Muslims either by their writings or by their part in the Shudhi movement have been murdered by some fanatic Musalmans... This was followed by the murder of Lala Nanakchand, a prominent Arya Samajist of Delhi. Rajpal, the author of the Rangila Rasool, was stabbed by llamdin on 6th April 1929 while he was sitting in his shop. Nathuramal Sharma was murdered by Abdul Qayum in September 1934. It was an act of great daring. For Sharma was stabbed to death in the Court of the Judicial Commissioner of Sind where he was seated awaiting the hearing of his appeal against his conviction under Section 195, 1. P. C., for the publication of a pamphlet on the history of Islam. .... This is, of course, a very short list and could be easily expanded. But whether the number of prominent Hindus killed by fanatic Muslims is large or small matters little. What matters is the attitude of those who count towards these murderers. The murderers paid the penalty of law where law is enforced. The leading Moslems, however, never condemned theses criminals. On the contrary, they were hailed as religious martyrs and agitation was carried on for clemency being shown to them. As an illustration of this attitude, one may refer to Mr. Barkat Ali, a Barrister of Lahore, who argued the appeal of Abdul Qayum. He went to the length of saying that Qayum was not guilty of murder of Nathuramal because his act was justifiable by the law of the Koran. This attitude of the Moslems is quite understandable. What is not understandable is the attitude of Mr. Gandhi. (p. 157)"

"The relations between the two communities were strained throughout 1923-24. But in no locality did this tension produce such tragic consequences as in the city of Kohat. The immediate cause of the trouble was the publication and circulation of a pamphlet containing a virulently anti-Islamic poem. Terrible riots broke out on the 9th and 10th of September 1924, the total casualties being about 155 killed and wounded... As a result of this reign of terror the whole Hindu population evacuated the city of Kohat... A feature of Hindu-Muslim relations during the year which was hardly less serious than the riots was the number of murderous outrages committed by members of one community against persons belonging to the other. Some of the most serious of these outrages were perpetrated in connection with the agitation relating to Rangila Rasul and Risala Vartman, two publications containing most scurrilous attack on the Prophet Muhammed, and as a result of them, a number of innocent persons lost their lives, sometimes in circumstances of great barbarity... An event which caused considerable tension in April was the murder at Lahore of Rajpal, whose pamphlet Rangila Rasul, containing a scurrilous attack on the Prophet of Islam, was responsible for much of the communal trouble in previous years, and also for a variety of legal and political complications... In Madras a riot, on the 3rd September resulting in one death and injuries to 13 persons was occasioned by a book published by Hindus containing alleged reflections on the Prophet... On the 19th March 1935 a serious incident occurred in Karachi after the execution of Abdul Quayum, the Muslim who had murdered Nathuramal, a Hindu, already referred to as the writer of a scurrilous pamphlet about the Prophet. Abdul Quayum's body was taken by the District Magistrate, accompanied by a police party, to be handed over to the deceased's family for burial outside the city. A huge crowd, estimated to be about 25,000 strong, collected at the place of burial. Though the relatives of Abdul Quayum wished to complete the burial at the cemetery, the most violent members of the mob determined to take the body in procession through the city... Forty-seven rounds were fired by which 47 people were killed and 134 injured. (Chapter 7)"

"Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."