So Arundhati Roy is an idiot. Yes, we all knew that…what’s new? In her never-ending quest for notoriety, Roy recently visited Kashmir in the aftermath of the civil unrest there. While there, she spoke to locals in small gatherings and severely criticised the Indian government for the atrocities it was committing in the state. She further stated that the disputed territory of Kashmir was not an integral part of India. The next morning’s newspapers covered her comments and there was an outcry across the emotionally stunted nation. “How could she say such nasty things about India?” people wanted to know. As was to be expected, the observation was very quickly made by a lobotomised individual that Roy could get away with such talk only in a free country like India, and had she been in Pakistan she would not have been cheeky enough to pull such a stunt.

The Indian Home Ministry is reported to have told the police in New Delhi that a case may be filed against Roy for sedition. Clearly, it thinks that there is enough evidence to charge Roy under Section 124 A of the Indian Penal Code, which states, “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.” Ironically, freedom of speech in India, though enshrined in the Constitution of India as a fundamental right, is actually curtailed. Although Article 19(1)a gives the freedom of speech and expression to every individual, sub-clause (2) restricts the freedom whereas it pertains to “reasons of “sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, preserving decency, preserving morality, in relation to contempt, court, defamation, or incitement to an offence.” If the Union Minister for Justice, Moodbidri Veerappa Moily, is any indication of the laws in India, the Minister described Roy’s remarks as “most unfortunate”. He said: “Yes, there is freedom of speech…but it can’t violate the patriotic sentiments of the people.”

Upon learning of the possible case pending against her, Roy cleverly used the media opportunity to lambast the Indian government some more. In a statement she released, Roy declared, “I spoke about justice for the people of Kashmir who live under one of the most brutal military occupations in the world; for Kashmiri Pandits who live out the tragedy of having been driven out of their homeland; for Dalit soldiers killed in Kashmir whose graves I visited on garbage heaps in their villages in Cuddalore; for the Indian poor who pay the price of this occupation in material ways and who are now learning to live in the terror of what is becoming a police state.” In an interview, she went on, “Some have accused me of giving ‘hate speeches’, of wanting India to break up. On the contrary, what I say comes from love and pride. It comes from not wanting people to be killed, raped, imprisoned or have their fingernails pulled out in order to force them to say they are Indians.” Roy continued, “Pity the nation that has to silence its writers for speaking their minds. Pity the nation that needs to jail those who ask for justice, while communal killers, mass murderers, corporate scamsters, looters, rapists, and those who prey on the poorest of the poor roam free.”

Speaking at a seminar on ‘Wither Kashmir: Freedom or Enslavement?’ in Srinagar, Roy said, “Kashmir has never been an integral part of India. It is a historical fact.” She declared that she was proud to associate herself with “resistance movements” across India and counselled Kashmiris to “consolidate the gains” of the recent four months of anti-India agitation. “The power concedes nothing unless it is forced to,” she said, and demanded demilitarisation of Jammu & Kashmir, urging Kashmiris not to join the State police and the Central Reserve Police Force. “India is behaving like a colonial power and suppressing one community at the hands of the other,” Roy ranted on. “They are sending Nagas to Kashmir and Punjabis to Manipur.” Roy didn’t spare Prime Minister Manmohan Singh either. “The Prime Minister of the world’s largest democracy,” she claimed, “has not been elected.” Roy is known not only for her controversial speeches but also her equally polemical writings.

In the wake of such rancid verbal diahorrea from Roy, it is difficult to clearly see the issue in question here. Undoubtedly, many are angry at much of what Roy said. Furthermore, there is no doubt that not only does Roy have her history wrong, but she also does not understand the nation-building aspects of military recruitment and deployment not just in the Indian Army but armies worldwide. It is also quite clear that Roy is a naive person who is yet to see real brutality or denial of civil rights. However, that cannot be allowed to translate into anger instead of justice. As the law stands, Roy is clearly guilty. The outcome of any legal proceedings will surely find it to be so. But that is not what concerns me. The fundamental principle of the restriction of free speech and expression is what bothers me. In his classic defence of free speech, On Liberty, John Stuart Mill laid down what is known as the ‘harm principle.’ It postulates that the only justification for silencing a person against his will is to prevent him from causing harm to others. It is to this powerful libertarian mid-19th century principle that we owe the idea that free speech cannot be proscribed merely because we find it disagreeable, and that curbs may be imposed only if such expression constitutes a direct, explicit, and unequivocal incitement to violence. Roy, for all her raving and ranting, did not cross this threshold – the law requires that direct connection between a defendant’s words and the harm done by others be shown. Clearly, there is no direct link between Roy and Kashmiri separatists or the Maoists. Roy’s support of these heinous causes is unquestionably problematic to say the least, but she has not armed or funded them. However, laws cannot be enacted retroactively and this argument does not serve as a defence of Roy. It is, however, something that Indians should pay close attention to for the future lest India indeed become a police state. One would have thought that we had all learned our lesson from the Weimar Republic NOT to have such sweeping and powerful laws on the books.

So what are the problems with the restrictions placed upon free speech? Does freedom mean license? Of course not. However, to frame the debate as a choice between license and encroaching restrictions is the fallacy of excluded middles. Subject to the harm principle, freedom of expression should indeed be absolute. Let us quickly run through the specific restrictions placed upon free speech in India:

1. sovereignty and integrity of India – how is the sovereignty and integrity of India “violenced” by free speech? Sovereignty and integrity can be threatened by armies from without and terrorism and separatism from within. If free speech is not directly inciting a rebellion, it cannot be said to have done violence to sovereignty and integrity.

2. security of the state – the security of the state is covered by the Official Secrets Act. There is no need to place further restrictions on expression.

3. friendly relations with foreign states – friendly relations with foreign states are not maintained by sacrificing your core values or interests. India could probably maintain friendly relations with Pakistan by giving up Kashmir and with China by giving up Arunachal Pradesh…so why doesn’t anyone consider that?

4. public order – if taken to mean wide-scale rioting, this falls under the harm principle and concerned entities may be held legally liable for damages caused IF a direct correlation can be shown between “offensive” speeches or writings and the violence (think US, not British Raj).

5. preserving decency – what is the empirical yardstick for measuring decency? There may be a few basic values we might all agree on, such as a ban on public nudity, but what formula does one use to measure decency or the lack thereof?

6. preserving morality – what is this, Saudi Arabia? Should we start stoning women and not let them drive too?

Indians have a choice – they can remain emotionally stunted, psychologically hurt by every little incident, or they can embrace democracy and advanced citizenship. But perhaps India is not ready for democracy, not with around 40% of its population illiterate and most of the literate population accustomed to learning by rote than actual intellectual engagement and original thought. Perhaps lessons in liberty need to be paid for in blood and not enough blood has yet been spilt on the subcontinent…

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Jaideep A. Prabhu is a specialist in foreign and nuclear policy; he also pokes his nose in energy and defence related matters.

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