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Column: How free should we be to speak in India?

Freedom of speech lies in the gut, argues Kian Ganz
Freedom of speech lies in the gut, argues Kian Ganz
Freedom of speech is impossible to agree about. While hardly anyone will dispute that freedom of expression is essential for a democratic society and an effective free market, almost no one will be able to agree about exactly where to draw the line.

In one corner, fighting for unbridled expression in various degrees, you have a disparate group that may include various shades of liberals and conservatives, freedom fighters, anarchists, journalists, academics, libertarians, criminals, terrorists, artists, copyright pirates, pornographers and paedophiles.

If we ignore the most hardcore among them—fringe anarchists and libertarians perhaps—most would agree that in a democratic society I should not be allowed to shout fire in a crowded cinema hall if it is not actually on fire.

Most can agree that the pleasure I may experience and the fundamental right I may express in shouting fire would be outweighed by the harm that people could suffer in a resulting stampede. In other words, we all more or less agree on the principle that free expression can be constrained where that expression results in harm to someone else.

From here on in though, most bets of reaching agreement between any two people are off.

What we mostly have to steer us in such debates is this uncomfortable feeling in our gut that maybe some things just shouldn’t be said in a civilized society, but actually every country’s gut sits in a slightly different place.

Most democratic countries have laws prohibiting speech that directly incites violence against others.

But near the most radical end, in the US, even the most hateful, bigoted and racist speech will be defended by the full force of the constitution, as long as it does not directly incite violence.

Germany, in light of its history, has special laws that prohibit the dissemination of Nazi ideology as well as speech that insults human dignity. The UK also has laws banning hate speech, as well as perhaps one of the most draconian defamation laws in the world.

India, with its myriad ethnic and religious groups, has more legal speech restrictions than many other democratic countries, outlawing religious insults that are intended to cause outrage, for example.

This puts us in a bit of a chicken-and-egg situation. For one, it gives an indirect incentive for community, political or religious leaders to instigate violence to demonstrate their outrage, whether honestly felt or used for political mileage. Once so outraged, the legality of the expression of the person they are reacting to is on thin ice because it is ostensibly the cause of outrage.

Take a movie or a work of art that offends someone’s sensibilities. Small-scale rioting or threats of protests are usually enough to get Indian movie theatre owners to pull controversial movies off their screens, if only for the fear of bodily harm.

Infamously, outrage was enough to nearly derail the Jaipur Literature Festival earlier this year. Readings of Salman Rushdie’s Satanic Verses at the festival may have been perfectly legal to perform under law (only the import of the book was banned in India, not the reading of passages) but the fear of a lynch mob taking apart your festival is perhaps reasonable.

The police, if not predisposed towards one side or the other, usually finds itself in the unenviable position of having to interpret on which side of the law the expression as well as the reaction to the expression falls. Usually, they stand by and watch.

The Internet has changed all that. Anyone with a serviceable Internet connection can not only download the Satanic Verses, but can also express him or herself in ways that are likely to offend more than Rushdie ever intended to.

And that is perhaps the biggest difference between the physical realm and the virtual one: a view that may have been commonly held and expressed in a living room or on a village square, can for the first time be communicated to thousands or even millions of people in an instant. The risk that at least one of the recipients will be offended by the message is real.

The flipside is that something incendiary that is read on the Internet will most likely not, in and of itself, provoke physical violence without someone organizing a mob to become riotous and violent. No one sees an anti-corruption cartoon on a blog or in a Danish newspaper and spontaneously starts a riot or overthrows a government by him or herself; someone needs to explicitly take charge of a mob to make it into a credible threat, and that usually happens with an overt call for revolution or a riot, often at the street level.

The laws against hate speech and incitement to violence were created at a time when virtual communication did not exist, and were therefore targeted at real-world, interpersonal communication, or at most print media and flyers.

Applying the same rules to the virtual realm misses the point by overestimating the impact of most Internet communications. The majority of content on the Internet, cartoons or otherwise, sinks without trace unless attention is drawn to it, usually with a ban. Even the video that incited the violence in Libya, Egypt and elsewhere is said to have been produced last year but only became a flashpoint once it was dubbed and promoted online.

The underlying danger that the Internet actually creates is separate from just inciting hatred and boils down to usurping the oligopoly of the means of mass communication from the powerful, the politicians and the mass media (whose position incidentally was hard-won). This is disconcerting to anyone with power, in politics and even in mass media.

But we are also in a transitional period and technology has made that change inevitable. Laws will be able to slow it down but not stop it, short of locking down India’s Internet with a Great Firewall.

And that perhaps is the one of the few things that most of India can agree on: India is the most populous democracy in the world and it is not China.

This article first appeared in Mint. Legally India has an exclusive content partnership with Mint, which will feature the latest legal news and analysis every fortnight on Fridays in its print and web editions.

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