Right to Express and Right to be Hurt: Reconciling Opposites
Mazher Hussain is Executive Director of COVA, a national network working on issues of communal harmony in India and peace in South Asia.
You have right to express. I have a right to be hurt. And when your expression hurts me, I have a right to protest and to seek redress. But my protest has to be democratic, non violent and must necessarily take recourse to legally sanctioned processes. However, in most cases, people claiming to represent communities whose sentiments are alleged to be hurt, take to streets and resort to violence. The governments, giving the excuse of “law and order situation” immediately declare a ban on the alleged hurtful expression -be it in the form of a movie, painting, poem or any work of art or statement.
If the offending material is obvious and indisputable, then there would be no problem in taking some appropriate action. But generally the offence in a material is perspective specific and subject to differing interpretations. What is hurtful to members of one community may not appear to be so for other communities. Secondly, a community may not react uniformly to any alleged offending material and the responses of different members could range from indifference to hurt to outrage for the same material. In most cases it is found that those who show super sensitivity to such issues are a small group mostly with some political affiliations or agenda and they also resort to violence. By their vocal and violent protest, they seek to project their opposition as an expression of the entire community. The governments also play along and succumb to their demands by resorting to direct bans or refusal to check violence unleashed and thereby forcing painters, filmmakers, writers, artists and others to withdraw on their own.
What is paradoxical is the extremity of responses of the governments to different “sentiments”. Separate Telangana state is a very strong sentiment of the people of the area just like sentiments of secession have played major roles in Jammu & Kashmir and the North East to the extent that thousands have lost their lives and the economies of all these areas are in ruins due to the unrelenting disturbances for decades. The government successfully uses iron fist to check all these “sentiments” but when it comes to the issue of a temple or a mosque or hurt to some religious “sensitivities”, kid gloves seem to come out in whole sale.
This shows that the state can be firm and control any law and order situation- even involving an armed insurgency- if it wants to! But responses of most governments in matters of alleged infringement of religious or cultural sentiments appear to be guided by political considerations and not so much on merits and they seem willing to give in at the slightest semblance of violence that they should and can curb very easily. When governments succumb to pressures of some group and give illegal concessions or permit extra constitutional actions, other groups also get a precedence to demand their pound of flesh when their turn comes. Such concessions from the government could eventually lead to some fringe groups becoming powerful by forcing acceptance of their demands through violence and acquire a profile and power disproportionate to their following in the community. As a result, politics of intolerance and violence gets privileged leading to polarisation and negative impact on all dimensions of society.
Given such scenario, the most appropriate way for the governments seems to be to place all contentious matters impinging on sensitivities of different groups before the courts and just focus on maintaining law and order till their verdict is pronounced and not take any unilateral action to ban or allow its continuation. And the only option to be allowed to all contending parties concerned should be to follow the rule of law, accept arbitration by courts and await their decision.
The law courts should also exercise the option of imposing interim ban if they find some prima facie case, and the matter is disposed off within a specific and limited time frame to ensure that while freedom of expression is protected, any genuine hurt caused thereof is not allowed to lead to much damage and appropriate directions are issued in the shortest time possible to prohibit the material if it is indeed found to be offending.
One problem that remains is that in most cases all that the courts recommend is the deletion of the offending material and no penalty for producing it is imposed. There should be a provision in law to ensure that whenever any portion is found to be offending, then all those responsible for it should be given exemplary penalties to ensure that such offences are not repeated by any one willfully or even inadvertently. In fact just like ignorance of law cannot be an excuse to escape legal liabilities, similarly claims of ignorance of some material to cause hurt should not be condoned but must be penalised. Only then will people be careful of their expression and will exercise it with the responsibility and diligence this right deserves. Even the censor boards should be made liable for proportionate penal action if it is found by a court of law that any material they have approved is indeed offensive. Finally, even those who start the protests without substantial cause should also be penalised like it happens in the case of filing of flippant PILs to deter misuse.
The Last Word: Expression executed with responsibility becomes a Right and used irresponsibly should be made a liability.