The right to offend. That’s probably one of the most polarising concepts in the world, and, of course, in India. On one side are many governments, courts, legislatures, communities, and individuals, who believe that the right to offend is akin to the right to incite violence, and will thus lead to anarchy.
On the other side are heads of some states, authors, columnists, stand-up comics, and “liberal” society. They believe strongly that the right to free speech rings hollow if it does not protect the right to offend.
As with most concepts, there’s much to be said on both sides.
Standing up for the right to offend is Kannan Gopinath, a 2012 batch IAS officer who quit the service protesting the abrogation of Article 370 in the erstwhile state of Jammu and Kashmir. His resignation has not yet been accepted by the government. He knows something about the right to offend himself. Gopinathan faces an FIR in Gujarat for a tweet criticising Prime Minister Narendra Modi.
On the other side is Dr Vinay Sahasrabuddhe, member of Parliament and RSS ideologue, who chairs the Parliamentary Standing Committee on Education and is also president of the Indian Council for Cultural Relations. He is vice-chairman of Rambhau Mhalgi Prabodhini, a Mumbai-based academy for capacity building for elected representatives.
Weighing the arguments is Advocate Mihir Desai, senior counsel at the Bombay High Court and the Supreme Court. He is also a senior human rights lawyer, vice-president of People’s Union for Civil Liberties (PUCL), and founder of Human Rights Law Network.
Kannan Gopinathan
I think the right to offend is not any separate right on its own. Right to offend -- or rather right to a full speech, full freedom of expression – would include certain aspects of free speech that might offend some people or a certain section of people. So, whether a section of people have the right to be offended by somebody else’s freedom of expression is, in my view, the crux of the matter.
If you look at it from a civilizational perspective, our civilization has taken pride in the fact that we have an entire treatise called the ‘Tarkashastra’ [dealing with the philosophy of logic and the art of debate]. We debated, we have countered each other, and we have disagreed with each other. And that is how we have come this far as a civilization.
I think more than the right to express, what we have in the current environment is the right to be offended. We have become a society of touch-me-nots. Please don’t say anything about me, my religion, my community, my state, my country…because we have started to feel very insecure about ourselves. We have started to feel very insecure about our religion -- that we need to protect it from any sort of free speech that might attack it. That offended feeling comes easily because we are insecure. You can call Einstien dumb, he won’t feel anything. He sits secure. He knows what he made of. I think this is where we have misconstrued or misunderstood our own civilization, our own strength and our own country.
The other thing that comes to mind when we talk of right offend is – right to offend whom? Right to offend what? In my understanding, there are three aspects of the right to offend. First, the right to offend the state. We have already curtailed this in various forms. If it is executive, then we have the sedition law.... 124 A [of the Indian Penal Code]. If it is the judiciary, we have curtailed it using contempt of court. For the legislature, it is the privilege motion. So all of these institutions have kept for themselves the right to be offended by others’ free speech. It is their right to be offended and we have protected their right to get offended through these various sections.
We must also understand that we have inherited the sedition law from [the time] before we secured our freedom. It was a protection against the British government facing any criticism. So any kind of criticism can be construed as being offensive and then the state resorts to ‘state-sponsored' violence. These are cognizable and non-bailable offences. You can be immediately arrested and denied bail for saying something which the state did not like. You said something about the state, criticized the state, criticized the government, the government did not like and the government will be the one to put you behind bars.
Second is the right of a community to get offended. That will involve 153-A, which is still okay because it deals with promoting enmity between two communities. 295-A is absurd because it involves insulting a religion. If I say something insulting about religion, that can be construed as a violent act and I can be put behind bars. Again that is also cognizable and non-bailable. Now if you read our own puranas, if you read Shiva Purana and pay attention to what it says about Brahma, I think whoever wrote Shiva Purana would be in jail [under this section]. Or look at it from the time of Rama. A dhobi could ask questions to a king. I don’t agree with the question that was raised, but he [the dhobi] could question a king. He was not beheaded, he was not put behind bars. The question was heard and it was deliberated upon.
The third kind is defamation. Sections 499, 500 of the IPC - they deal with civil and criminal defamation. What we have today is a legal framework that encourages the right to be offended. I can charge you with slander and if I have sufficient clout with the government, you will be prosecuted. And most of these (powers) are without any checks. And this where I think what the Supreme Court and the Bombay High Court had once said comes into play -- that guidelines need to be formed for registration of sedition cases.
I think Section 124-A lost its relevance after India adopted its Constitution. If this law was introduced after the adoption of the Constitution, I don’t think it would have stood scrutiny. There are many other sections of IPC that can help you prevent violence. There is 505 which is against inciting violence. But insulting a religion can be construed in any number of ways and then anybody can file a complaint. We need to have a check at least for private complaints. A private complaint filed under sections 53 or 295 must necessarily be sent to a senior law officer like an attorney general or at least a public prosecutor and their concurrence should be taken before filing an FIR.
There is a personal case involved. There is a case against me under section 295 for writing: “Shame on you, prime minister”. I have no idea why section 295-A should be applied. Because 295-A deals with insulting a religion. But somebody filed an FIR in Rakjot in Gujarat and a case under 295-A was registered. This should have been checked at the complaint stage itself. A lot of these sections - right to offend state, community, judiciary, legislature, individual - is pretty much a part of the right to free expression.
Unless we allow ourselves to challenge the existing establishment and the existing people in power, we will never grow, we will never improve. We have come this far because we have constantly challenged people in power – be it the Mughals, be it the British rulers, or be it now.
We have constantly challenged, criticised, and often offended the sensibilities of people in power and that is how we have come this far. And we will grow further only if we retain this right. Otherwise, we will reduce ourselves to a society of touch-me-nots.
Dr Vinay Sahasrabuddhe
To be very honest and to be very candid, the idea of Right to Offend is a very weird idea. I don’t know from whose fertile mind these kinds of ideas emerge. But I believe this is something that goes against the very grain of Indian culture. It’s a weird idea. It’s an impracticable idea and I would say it is something which comes from a perverted mind.
I believe a ‘right’ is not something which permits you to do anything. You have the right to free speech and the right to move in our country wherever you want to go and settle down. That is all okay. But that doesn’t mean you have a right to create a disturbance. In this case, the right to offend is akin to the right to indulge in violence to protect yourself.
I mean, as they say, fighting for peace is ironical. In the same way, right to offend is just as much contradictory and therefore it is something which is a misfit from the Indian civilisational values point of view. In India, when we talk about traditional civilisational values, we talk about the idea of the world as one family: vasudhaiva kutumbakam is what we say. So when we say every other individual in this world is related to me and we are all family members, do we offend our family members? Do we hurt their feelings as an assertion of our right? We never do that. That is not the idea of a family. That is not the idea of peaceful co-existence. That is not the idea of harmony. Therefore, the idea of right to offend entirely goes against the foundation of the Indian civilisational values.
There is the right to free speech and it is guaranteed by our Constitution. But while dealing with the right to free speech or dealing with the right of freedom of expression, we will also have to think about the politics of hurt emotions, hurt feelings and how we can get rid of that. In our country, we have welcomed every other way of worship because we believe essentially in what is described as spiritual democracy. We don’t have the hegemony of a particular way of worship, much less a monopoly on any particular way of worship. And therefore, when we have welcomed everybody in this Ganga Jamuni tehzeeb, those who are joining also have to ensure that they follow this particular stream of harmony, co-existence, living in peace and happiness. This is a right to everyone. If everyone is to enjoy this right, I think with that right comes a sense of responsibility. If we observe and follow that sense of responsibility then I believe perhaps we can get rid of the politics of hurt emotions.
My answer to the question: Should India have the right to offend? India should not have this, India does not require this. For that matter any mature democracy should stay away from excessive and eccentric rights-oriented narrative. In India we always have talked about both rights and responsibilities; rights and duties. Even during our freedom struggle when Mahatma Gandhi was leading all of us, when Chouri Choura happened, when any kind of violence happened, he remained away from that and he wanted the entire freedom movement too to disassociate from that. Why was that? Because we want the right to have a peaceful and harmonious co- existence.
The right to offend goes entirely against our ethos, our tradition, our philosophical approaches. We should not require or encourage any such right is my very frank, firm and clear opinion. Right to offend is almost similar to the right to indulge in violence. This is a kind of emotional or psychological violence. Yes, it is a violence when you offend somebody. Even in today’s circumstances, when people get hurt because of certain things, I don’t see those who are committing these mistakes claiming they have the right to offend. Nobody has the right to hurt your feelings. Nobody has the right to be unmindful of societal sensitivities. That can’t be right. We live in a society. Therefore, we can’t even think of a right to offend. It's a weird, foolish idea and I would say it doesn't require any elaborate discussion as such.
As far as the right of free speech is concerned, I think we are unnecessarily mixing the two issues. The right to free speech doesn’t mean that you can be uncivil. I am a member of Parliament. In Parliament, one has every kind of protection…whatever you say is privileged, it can’t be challenged in a court of law. But that doesn't mean that in Parliament I can use unparliamentary words. It is not allowed. In fact, when referring to members of opposition, we refer with a sense of respect. We always say honorable members, honorable ministers, that is how we conduct ourselves in a civilised society.
Therefore, even to talk about institutionalising a right to offend is entirely against norms of civilised society and against democratic principles. It is overstretching the idea of free speech and therefore a complete NO NO.
Advocate Mihir Desai
This debate on the right to offend reminds me of Justice [Rohinton Fali] Nariman’s judgement that came in 2015, in what is famously known as the Shreya Singhal case. In that case, the Information Technology Act was challenged. A particular section, Section 66-A, which basically provided that if you circulate any offensive material, through the internet etc, then you could be put behind bars for three years. This was challenged and the Supreme Court struck this down asking what is the meaning of “offensive material”? It is too vague. Offensive to whom? Offensive when? How do you decide what is offensive, what is not? Now, if you look at our country today, if a Hindu person marries a Muslim, many people find it offensive. If a Dalit marries an upper-caste person, people find it offensive. What I eat, some people find it offensive. If I dress in a particular way, some people find it offensive. So, what is offensive? And our country has become, by and large, very, very insensitive to other people’s rights and respects.
The right to offend is actually a part of the right to freedom of speech and expression. Freedom of speech and expression is a right which is available in all countries. It was even available in Hitler’s Germany -- as long as you agreed with him. It is available today in Saudi Arabia - as long as you agree with the Kingdom. So, freedom of speech and expression to agree with the establishment is always available in every country. It is when you disagree, when you dissent, that this freedom of speech and expression becomes an important right. Right to agree is always there. So, if you look at any democracy, any mature democracy, the reason why it is called a democracy, the reason why these are called mature democracies is that it allows you to offend, it allows you to disagree, it allows you to dissent. It is not just parroting just what the establishment says but even disagreeing with it openly. So when we talk of right to offend, we have to keep one factor in our mind, that we are talking about offending certain people’s sensibilities or the establishment’s sensibilities by disagreeing with what the majority view says. Now, remember another thing that a democracy like India is not just the rule of the majority. It is of course a rule of the majority, but it is not just rule of the majority. It is also protection of the minorities. Both things happen simultaneously. Majority can always take care of itself. But the minority requires protection. You see, if you only go by majority, I am sure if you take a vote tomorrow 95 per cent of the population will feel that homosexuality should be criminalized. If you take a vote tomorrow, 70 per cent or 75 per cent of the population will feel some violence against women by their husbands is justified. When you are ruled by majority, it does not mean majoritarianism. It means you are ruled by constitutional morality. Our Constitution talks about equality. Constitution talks about liberty and freedom of speech and expression. That is the morality we are talking about. Even when we go back in time, there is something to learn from every civilization. Whether it is Indian civilization, Roman civilization, Greek civilization. But you don’t valorize it. You don’t take everything which the civilization may have given you or what is called a part of the civilization as permanent as always good. Roman civilization had slave system embedded in it. So, when one talks about the great Roman civilization one is still critical of the fact that there were slaves there. When one talks about the Greek civilization and Greek democracy, the ancient Greek democracy, one still talks about the fact that in the democracy of Greece women were not allowed to vote. So one is critical of that. Similarly, when one is talking about Indian civilization, one is not agreeing with Manusmriti, which, for instance, talks of Dalits not having rights to do a lot of things, women being subjected to violence. We are not talking about that. So when we talk about our great civilization, one has to take good with the bad. One has to abandon the bad and go with the good.
There is nothing like a great civilization which is permanent in nature. Like today, I am criticizing Manusmriti. Or today, if I am criticizing the Holy Quran or the Bible, I should have the right to do that. I don’t have the right to abuse people. Because even our Constitution says under freedom of speech and expression that these rights are subject to reasonable restrictions. Now, reasonable restrictions are already provided in the Constitution. I can’t defame anybody. I can’t go around calling people names. Then the laws of defamation get in. Similarly, I can’t commit contempt of court, I can’t violate court orders, I can’t try to incite violence. Those things are not allowed.
But within the constitutional framework today, look at the way things are going. I was hearing one of the previous arguments about India being tolerant and that we believe in tolerance and not offending. But if we believe in tolerance, what is the need of these love jihad laws? It is a sign of intolerance that you have these kinds of laws. When we are talking about being tolerant, when we are talking about Vasudhaiva Kutumbakam, they should hear the speech delivered by Shyama Prasad Mukherjee, one of the pioneers of Jana Sangha, during the time when article 19, freedom of speech and expression was being amended. He delivered a very, very powerful speech in Parliament opposing the amendment, saying freedom of speech and expression is inviolable. As Justice Nariman said in the Shreya Singhal judgement, there are three things when you talk about speech. First thing is discussion. Second thing is advocacy. And the third thing is incitement. The law can only stop incitement. Law cannot stop discussion. Law cannot stop advocacy of certain ideas howsoever unpopular the ideas may be. The only thing the law can intervene in or stop is if something is leading to incitement. For which there are already laws in place.
What is happening presently is that on the ground, the amount of things for which people take offence are so numerous that nobody knows what part of what they say can lead to somebody in some corner of the country taking offence. This more so especially when the state converts the right to not be offended to a right to not dissent. Which is what is happening now. If you dissent with the state, if you disagree with the state, if you disagree with the party in power -that will amount to some kind of crime, whether under sedition, whether under hate speech, whether under UAPA. It is something we all have to be very wary of. Because today, what we are doing is that under the guise of controlling hate speech, we are putting people behind bars. And we have a situation where the police are acting as hand-maidens of those in power. Our democracy is in danger. And I feel we need to be cautious and we need to fight against these anti-democratic trends. And we need to fight for the protection of our right to freedom of speech and expression.