Censorship in the Times of Hindutva

The judiciary’s role in protecting the rights of dissenting voices assumes great relevance, especially in an environment of steadily growing majoritarianism coupled with a visible attempt by the powers-that-be in creating a homogenised historical and cultural narrative. While criticism of the judiciary, especially the Supreme Court, becomes a natural extension of this logic, it also has to be understood against the backdrop of institutionalised censorship that has been created by the Indian state, with provisions from colonial law being reproduced verbatim in Indian law.

The Indian Penal Code (IPC) and the Code of Criminal Procedure (CrPC), read in conjunction with each other, are prime examples of this. Section 95 of the CrPC, for instance, allows the state to demand the forfeiture of apparently inflammatory material, inclusive of any visual representation, that it deems to be in violation of certain provisions of the IPC.

The ease with which the government can issue a declaration for this forfeiture is dual in nature – it firstly requires the state government to do nothing more than pass a notification, and secondly, to do so, it need only state “the grounds of its opinion”. While case law clarifies and attempts to mitigate the unbridled power provided by the letter of the law, it still remains that there is no formal procedure to be followed, and nor is there an occasion to provide a defence prior to the seizure.

The troubling language of section 95 has further ramifications; the printed material need only “appear” to be in contravention of the concerned IPC sections. The section is fundamentally structured against the alleged violators, as the publication is effectively banned without even granting the opportunity for resistance. Moreover, the burden of exoneration falls upon said violators who are inextricably tangled in a legal battle with the system. Subsection 3 also states that recourse may be obtained only in accordance with section 96, which provides for an application against the gazetted declaration.

In plainer terms, this gives the Indian state the legally sanctioned ability to ensure that the space for dissent and debate is systematically eroded, and puts a large question mark around the constitutionally guaranteed freedoms that the Indian democracy prides itself on. It is especially abrasive to the fundamental right of free speech and expression protected under article 19(1)(a) of the constitution.

The provisions of the IPC that the “documents” may be in contravention of – sedition, the promotion of enmity amongst communities, obscenity, prejudicial action against communal harmony and national integration – are of a similar, specific type; they all relate to the careful construction of a certain kind of society and citizen, that has an inflexible, established standard of morality that must not be violated. This insistence on a particular public order translates into the stifling of not only artistic and journalistic endeavours but also academic inquiry.

Regulation mercifully extends beyond legislation; judicial decisions and precedent temper the scope of the statute and provide some relief. The 2010 Supreme Court judgement in State of Maharashtra v. Sangharaj Damodar Rupawate lays down meticulous guidelines for evaluating the validity of notifications passed by the state governments. The ruling is also an illustration of subsection 1 of section 96, which states that the grounds on which an order is challenged is not the state government’s opinion, but rather the content which is deemed to be violative of the IPC sections enumerated above (124A, 153A, 153B, 292, 293, or 295A). If the material contained within the banned document is not punishable under a particular section, the ban is to be revoked, regardless of the legitimacy of the government’s opinion.

The 1986 case of Nand Kishore v. the State of Bihar held that the publication in question must be viewed in totality and that the intention of the author must be taken into account. It emphasises the importance of context and perspective, and that the ostensibly offensive matter cannot be examined in isolation.

The study of case law and judicial precedent have, however, established only a very hazy understanding of the law – individual high courts and the Supreme Court have both aided and attacked the cause of freedom of speech. One of the most glaring reminders of judicial failure in this regard is encapsulated in the ban and controversy surrounding Maate Mahadevi’s book on the 12th-century saint and social reformer Basavanna. The book, published in 1996, was banned by the Karnataka government two years later and the same was upheld by the High Court in 2003. Her alleged offence was one of cultural incongruence – she had altered the pen name of Basavanna and changed it to Linga Deva.

The court ruled that her book had the power to “affect the religious sentiments and feelings of certain community”. The problematic wording of the judgement also lies in the court’s interpretation of community and community values, while paying no heed to the actual substance of said textual material. Inexplicably and as recently as September 2017, the ban was upheld and a reasoned order was refused.

Section 95 of the CrPC is a weapon in the hands of state governments. In the current climate, the government’s artful censorship reaches far beyond. The preservation of this morality is so essential because it forms the core of the nationalist, Hindutva, parochial atmosphere that is being so consciously cultivated. This atmosphere is totalising – it is a narrative, an identity, a justification, a principle by which lives are and should be lived. One facet of this environment is the vital role played by fear; it is both a mode of operation and a driving force. Fear comprises the primary tool of enforcement and assertion of the morality in question, but it is simultaneously also the explanation for its blind, undeterred maintenance – the fear of disruption results in the manufacturing of terror and terrorised citizens.

A number of provisions in Indian criminal statutory law are colonial imports and seem cardinally predisposed against the freedom of speech and expression. The institutionalised suppression of speech has far-reaching, insidious effects, and it is imperative that the judiciary plays a crucial role in facilitating and conserving the ever-shrinking democratic space for dissent. The essence of this lies in moving beyond simple binaries that form the narrative of the ‘New India’ that is fed and fanned by the very law that is intended to protect.

Anushka Baruah and Rudra Bhushan are first-year law students at Jindal Law School.