The real challenge is the issue of social censorship
Are the courts non-responsive?
At one time, they were okay about institutional issues ??" there was a spurt of cases for a while - the Rangarajan case or the Odyssey case, for instance. Besides, there is no self-controlling agency - even the Press Council of India is a body without much power...
The courts are not helpful, either, as I found in the case of the banning of the film ‘Black Friday’, where Justice Gokhale was simply not responsive to any of my arguments. Perhaps there is an innate conservatism; perhaps they fear that the consequences of free speech would fall on them or perhaps there is an increasing form of institutional cowardice today.
Social censorship: the real challenge
For me, the real challenge is the issue of social censorship. It is today, difficult to disaggregate free speech from social censorship in people’s lives. Recently, there was a protest because people didn’t take their chappals off for some event...so actually, the increasing regulation of social life and social censorship of speech harasses people and forces them to behave and speak in a certain manner.
But the pattern of social censorship being what it is, the power of the mob is greater than ever before and in a partisan state, this gets worse. There is no dearth of the law to protect free speech but in the climate of fear, a lot of our social censorship is also increasingly hidden.
Implications of social censorship
Earlier, we looked at the issue of freedom of speech and expression narrowly because its enemy was clearly seen as the State, private actors were never looked at as much...but today, social censorship is taking us to a terrible free-for-all...a compromise society where the lowest common denominator prevails. Here, you watch what you say or do. Here, it is not what other people must tolerate but who you must not offend!
Offensive vs hate speech
Another major area is to differentiate between offensive speech and hate speech. Husain is held to be guilty of hate speech and community standards become the standard, however limiting it may be. The recent judgement of the Bombay High Court on the Bhasin case is interesting, not least because one of the three judges in this case is Justice D Y Chandrachud, along with Justices Ranjana Desai R S Mohite. The senior Chandrachud, in the case on the Godse book, liberated us from the shackles of censorship. There have been other cases ??" the Justice Krishna Iyer judgement on the Periyar Ramayan case, for instance...
Slap suits as a deterrence
But these are now increasingly being replaced by slap suits ??" the slap litigation ??" where anything seemingly hurtful, or offensive or disparages or creates public order invites litigation. Husain is a victim of slap litigation or even Kuldip Nayar when the Supreme Court Bar Association got an order from the Supreme Court on the contempt of court matter.
But what is also happening is that people begin to buckle under with all these bans. Take for instance, book publishers. In the Shivaji book issue, OUP were the publishers ??" why did they buckle under? The publishers don’t want to take a risk and then you have no case, no one challenging the threat to freedom of expression ??" that’s the situation today.
The senior Supreme Court advocate and constitutional expert Rajeev Dhawan has been monitoring the attacks on freedom of speech and expression in India for decades. The issue figures in several books he has authored, the latest being ‘Publish and be damned: Censorship and Intolerance in