Friday, July 04, 2008

The Hindu's Erroneous Analysis and Prescription to Fight Intolerance

As Karthik, one of our readers, points out in a comment, V.R.Krishna Iyer's latest piece in The Hindu is quite hilarious. I would urge all our readers not to miss reading it. Taking the advice of our readers, I will however not waste any space commenting on his exhortations to our 'clean, green, simple and straight' prime minister (just a thought: would the advice have been different had he been 'red, complex and queer'?).

The Hindu repeatedly mentions paragraphs from the judgment in Ore Oru Gramathile in every freedom-of-speech case. Today's editorial is at least the second in a row where it quotes from that opinion.

While court orders in specific cases illustrate what cannot be considered objectionable, the Supreme Court in the case relating to the film Ore Oru Gramathile had adopted a broad standard that “the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.” The permissive legal culture that provides any bigot a forum to turn perfectly acceptable speech or expression into a crime and harass writers and creative artistes is clearly in need of an attitudinal, if not structural, overhaul.

In a previous editorial last year, it quoted some lines similarly:

It is really up to the higher judiciary to ensure that the Indian criminal justice system does not continue to be abused in a way that can make it the laughing-stock of the world. The reference point for all such cases is what the Supreme Court of India elaborated in its landmark free speech judgment on the film Ore Oru Gramathile (S. Rangarajan vs. P. Jagjivan Ram & Ors., 1989). The court held that the yardstick for judging whether anything was inflammatory or, by extension, obscene, was the perception of an ordinary person "with common sense and prudence and not that of an out of the ordinary or hypersensitive" individual. Litigants who feel the urge to rush to court because of a send-up kiss or an actress's mode of dress or a historical biography are precisely the kind of "hypersensitive" individuals the Supreme Court had in mind. Such cases must be given short shrift with deterrent penalties imposed on the mischief-makers.

The paper simply overrates this judgment. There are two parts to this problem. One is that under the current system, anyone can file a case anywhere in the country to bring the speaker/writer/artist to justice - this pretty much amounts to allowing every citizen in the country the right to act as public prosecutor. Is it any surprise then that the number of frivolous cases that are filed is simply too many? The answer is simple: when a threat to the public order is involved, the right to file charges should rest solely with the government which alone is empowered to act on behalf society, not anyone looking for some cheap publicity and with too much time on their hands.The second is that when suits are filed, the local magistrate should first go through the petition carefully and decide whether a reasonable case is made out in the first place before issuing a notice to the other party. It may take a bit more time and effort in the beginning but it will save a lot more of both not only to the court but also to the alleged offender if the trial can be precluded in the first place. That of course requires the case law to provide clear guidance to the lower courts which brings me to the third point.

For that, we need are clear standards to know exactly what does and does not constitute a breach of the public order. In the case of section 153(A) of the IPC, it is true that the baseline is quite clear but the broader point still holds - the higher judiciary has an obligation to lay down clear red lines that are universally applicable, not nuanced, case-specific opinions that are so context-dependant as to render their formulations impertinent in a slightly altered situation. What the court can clarify as a general rule, it must do so. What it cannot as with matters relating to particular facts/tastes, it should leave them to be decided by the lower courts based on contemporary social standards much like the US Supreme Court has done.

The Hindu's analysis is wrong on every count here. This so-called yardstick to decide what is inflammatory is supposed to be based on the perception of an 'ordinary person with common sense and prudence and not that of an out of the ordinary or hypersensitive person'. Again, it says 'the effect of the words must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view' (ibid.).

Firstly, this is not a yardstick or standard at all, simply a statement of the court's sentiments. To be considered a standard, it should lay down an objective method of assessing whether the speech/expression in question falls on a particular side of the law that is clear enough to apply and holds a reasonable prospect of a consistent outcome. Fine statements such as the 'perception of an ordinary person', 'strong-minded' etc. will not count for they raise more questions than they answer: who is an ordinary person? The conservative farmer from the countryside? A professional engineer or doctor? An artist? A singer in a night club? A priest at a temple? Which of these is to be considered strong/weak-minded? All of them are equally ordinary and very much part of the same society and yet, their own individual and professional inclinations may lead them to hold very different views on what is permissible or offensive.

Secondly, there is no trial by jury in India where those who are 'out of the ordinary' or 'hypersensitive' can be excluded at the pretrial stage. The only perception that matters is that of the presiding judge who surely will not consider himself/herself 'out of the ordinary' or 'hypersensitive' or his own standard to be that of an unreasonable, weak-minded or vacillating mind. It is the problem of the writer/artist if it so happens that he/she happens by temperament to be conservative or 'hypersensitive' in the court's words. Such exhortations are unimplementable and therefore quite useless.

The answer therefore is fewer cases, better standards and a more thoughtful approach by lower-court judges (which could also translate into better judges). For the most part, these require a structural overhaul, not attitudinal change as the paper wrongly prescribes.


Anonymous said...

It would be interesting if some "political psychologist" were to analyse the psyche of the Kashmiri muslim outfits and their supporters for their blatant anti-national posture (while enjoying all the extraordinary benefits and privileges doled out by the Delhi sarkar). Chindu would be the first to jump and brand the work as highly "communal, incendiary, inflammatory, provocative etc".

The Gujarati middle class has been called names such as "bloodthirsty" by Ashis Nandy which smacks of pseudo-intellectual arrogance and intolerance, just because Modi was returned for a second term. Then what about the Bengalis since they have voted the communists to power for more than three decades?

hindufundamentalist said...

But in Ashish Nandi case, instigator of complaint is gorement. So Hindu is right to invoke O,O,G judgment, actually.

Pilid said...

Anon #1, thanks for the comment. There is no gainsaying that The Hindu applies different rules for different groups of extremists.

Correct. I was making these points broadly in light of all the recent controversies that have taken place, not only Ashish Nandy - the petitions against Sania Mirza's dress, M.F.Hussein's paintings, the jailing of the art student at Ahmedabad, the movie bans imposed by the Mayawati government, etc. Some involve the government, others involve private parties. The evidentiary requirements, legal standards and outcomes are expected to remain the same in all of these cases regardless of who the petitioner is. Sometimes, governments, in an effort to appease a violent mob and buy time, bring cases to court that have no leg to stand on. Allowing the government to file cases exclusively will limit the extent of this problem though it is clear that it will not eliminate it. Hence, other measures such as careful pretrial consideration are also necessary.

Hindu Fundamentalist said...

i am glad to notice that i am not the only hindu fundamentalist around.

Anonymous said...

In Ashis Nandy's case the complaint was filed by an individual representing some civil liberties organisation. May be for the seculars , it is "instigated" by the Gujarat state govt. and they seem to derive enormous delight in the wholesale insulting of the majority of a state population.

Dirt Digger said...

The Chindu tries to oversimplify issues by tagging it with certain stereotypes in an attempt to strike a cord with its readers. The Gramathile case or Gujarat pogrom or Hindu chauvinism/communalism etc. are examples of the same.
While I would agree with you on most of your arguments in this case, I am siding with Chindu's side when it makes the statement,
"Such cases must be given short shrift with deterrent penalties imposed on the mischief-makers."
In addition to the issues discussed by you there are 2 key points:
1. The Government of India and the various state governments have failed to lay down the law when such incidents occur. This weakness exhibited allows any Tom Dick and Harry to file lawsuits frivolously.
2. People belonging to various strata in society have lost their sense of bearing when it comes to tolerance. Given that the govt. bends backwards to accommodate particular groups, everyone and their dogs decide to take advantage of the situation.
Hence while Chindu is right when it asks the courts to penalize the miscreants for wasting its time and people's money on irrelevant cases, the Govts need to grow some balls to enforce the law and not bend down to each and every minority/special interest group etc.

Pilid said...

Thanks all for your comments.
Anon#2, your point is a salient one. In many of these cases, the petitioner often represents some obscure organization. While there are insinuations about it being a front for some party/interest, it is rarely established to be so. Even appellate courts do not necessarily inquire into the bona fides of the petitioners though they sometimes dismiss them when brought to their notice.

DD, you are absolutely correct that deterrent penalties need to be imposed. I forgot to add that in my post but I agree that it would be a vital deterrent. Earlier, costs were invariably imposed on the losing party but nowadays, in such cases, even that is not done. If you look at Supreme Court opinions, you often see that they end by saying 'No order as to costs'. This is again a strong incentive for frivolity. Without a system of punitive damages, the due process itself becomes the punishment for the defendant and regardless of the outcome, the process of getting past the litigation itself will be penalty enough to deter them from whatever they were doing howsoever right and justifiable it might have been.