A Dime a Dozen Blog

Over the last few days we’ve seen in the decisions of the Alberta Human Rights Commission and the procedures of the BC Human Rights Commission, what remains of the concept of negative liberty and of justice in Canada. Which is to say, not a hell of a lot.

But over in India, the situation is looking up. A decision made last month by the Delhi High Court on Free Expression has a lot to teach us. Justice Kaul of the Delhi High Court came down on the side of Free Expression in an eloquent and very Indian way.

What strikes me most about the decision are the supporting arguments. The judge refers back to the sayings of an Indian swami. A swami, as in the Beatles, getting stoned, and moral relativism – and the thing is, that it works.

From The Times of India. Compare and contrast:

Last week I wrote about the landmark judgement by Justice Sanjay Kishan Kaul of the Delhi High Court on May 8, upholding a number of petitions submitted by painter M F Husain… While the judge’s ruling had taken care of the legal aspects of the case, his larger observations on the case deserve the attention of every thinking Indian.

The most important of these, i believe, is his rejection of the tendency of thin-skinned (or maliciously motivated) people across the country to claim to be offended by artistic and literary works. If you’re easily offended, he argues, don’t read the book, look at the painting or open the website that offends you, but don’t prevent the artist or writer from enjoying his constitutionally protected freedom of expression. What is vital, according to Justice Kaul, is to look at the work of art from the artist’s point of view — his or her intent rather than the hyper-sensitive viewer’s reaction. Lest he be promptly denounced by the Hindutva brigade as a deracinated pseudo-secularist, the judge wisely cites Swami Vivekananda’s words in defence of his approach: “We tend to reduce everyone else to the limits of our own mental universe and begin privileging our own ethics, morality, sense of duty and even our sense of utility. All religious conflicts arose from this propensity to judge others. If we indeed must judge at all, then it must be ‘according to his own ideal, and not by that of anyone else’. It is important, therefore, to learn to look at the duty of others through their own eyes and never judge the customs and observances of others through the prism of our own standards.”

… This is wonderful language in a High Court judgement. Readers should remember that India, unlike the US, has no absolute right to freedom of expression; in our country, Article 19 (2) says that freedom of speech can be curbed by “reasonable restrictions… in the interests of (the sovereignty and integrity of India) the security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” In other words, a differently-minded judge could have easily interpreted the language about public order, decency and morality more narrowly. We Indians are fortunate that a series of judgements over the years, culminating in this one, have tilted the balance decisively in favour of our freedoms.

Justice Kaul is sensitive to the charge that liberal attitudes to art and obscenity reflect the inclinations of a privileged minority and that most Indians might indeed be offended by the kind of art his judgement protects. He writes: “Democracy has wider moral implications than mere majoritarianism. A crude view of democracy gives a distorted picture. A real democracy is one in which the exercise of the power of the many is conditional on respect for the rights of the few… In real democracy the dissenter must feel at home and ought not to be nervously looking over his shoulder fearing captivity or bodily harm or economic and social sanctions for his unconventional or critical views. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends.”

These words should give heart not just to M F Husain, but to artists and writers across the country, who in recent years have found themselves the victims of other people’s hyper-sensitivities. “Intolerance,” Justice Kaul writes, “is utterly incompatible with democratic values. This attitude is totally antithetical to our Indian psyche and tradition.” He goes on to warn that the criminal justice system “ought not to be invoked as a convenient recourse to ventilate any and all objections to an artistic work” and be used as a “tool” in unscrupulous hands to violate the rights of artists. The judge declares that “a magistrate must scrutinise each case in order to prevent vexatious and frivolous cases from being filed and make sure that it is not used as a tool to harass the accused, which will amount to gross abuse of the process of the court…. (A)part from the harassment element there would be growing fear and curtailment of the right of the free expression in such creative persons.” He decries “the large number of incidents of such complaints …. resulting in artists and other creative persons being made to run across the length and breadth of the country to defend themselves against criminal proceedings initiated by oversensitive or motivated persons, including for publicity.”