28.01.2012
Freedom without Regulation: A Journey from Misunderstanding to Misdeeds
"Let not make heroes out of those people who are banned", were the words of one of the authors at the same event, who further added that, "everyone has right to condemn things which they find offending". This remark very timely highlights what needed most- every party has right to freedom, even against freedom. Lets imagine a world where everybody is having "unfettered" right of freedom of expression. What would happen? Chaos in democratic fraternity? Communalizations of society? Instability in the whole law and order machinery? State of emergency? May be agreed. But present bunch of “progressive writers” and their supporters think otherwise!
A National daily mentioned its opinion under titled, "A National Shame", describing the whole phenomenon of Jaipur Literature Festival, few days back. I wonder and surprise; because it is advocating essentially "unfettered" freedom of speech, overlooking completely the another and equally important side- restriction but reasonable. State Govt.’s ban on controversial writer is being condemned everywhere in the name of freedom of expression of speech, without looking at inherent policy and rationale behind the public order.
Constitution of India provides freedom of speech as one of the most celebrated and fundamental human right. Everybody has right to speech and expression, but not whatever a person wishes to do or say. It further says that State may impose reasonable restrictions on the ground of "Sovereignty and Integrity of India", "Security of the State”, "Public Order" etc. Apart from this Indian Penal Code also contain various Sections to this effect (Sections 153A, 295, 295A, 296 etc.). This legal rationale is based on well founded and progressive jurisprudence, developed and observed over a period of thousands of years. No civilized society ever went against this well founded jurisprudence in the interest of whole society. After all "Collective national interest is more than sum of individual interests", the underlying basis of all reasonable restrictions. Even the highest Court of Land upheld these restrictions.
Nobody has right, in the interest of whole society, to hurt the religious sentiments of any group, assured and guaranteed by Constitution, mentioned in the same chapter of Fundamental Rights, though, again with reasonable restrictions. And what if these two right clashes with the "progress of society"? It definitely needs to go back to the principle of harmonious construction, giving the State and Judiciary have power to determine the clash of interests. As the Law and Order is State Subject, the actions of State is perfectly justified. Nobody is stopping the "aggrieved party" to go to the Court. This is how democracy works, an ideal condition. Nobody is taking law into their own hands.
Now comes the concept of secularism and the way its meanings were given new shades by the same group of the so called progressive people. It’s even argued, criminally, that India is moving on the verge of democratic demise, because secularism is not observed. What a fallacy! Again secularism is misunderstood. Secularism means every group of people will have right to profess its religion or ideology, and State will follow the policy of Sarva Dharma Shambhav. But it is also the duty of the State to save secularism and protect citizens against any attempt which may try to ruin the social fabric. How? Curbing the freedom of expression (of religion) or freedom of expression (which goes against the secularism). A child will give better answer. A child is innocent and impartial. Child is open to all religion maintaining their own. They enjoy the joy and become the part of same fabric. Secularism essentially lies in the notion of tolerance and respect for every religion.
In the concerned State, resorting to law and order problem is just means, not an end. It should do more. It is also argued that there is no such law which bans a controversial author coming to India, because imposed ban is on book (only import ban under Custom Act, 1962). Then, how can a State Govt. may stop a controversial author? The answer is again same: in the name of maintaining law and order. Now it would be exaggeration to say that, in the name of law and order, State may do "whatever it thinks fit". The requirement here is balanced approach.
As far as role of media is concerned, recently Justice M. Katju highlighted very well role and duties of media. Nothing much to add here. It has been seen that it remains averse to basic understanding of law and order, most of the time. Very few would come up with balanced approach. More ridiculously, this whole exercise (of ban) is being seen in the context of upcoming elections in few States, by some political pundits. Presenting one view and negating other-side has become its agenda, it appears, in many cases. Nobody knows why, except God.
Whether freedom of expression (from the point of controversial author) is greater than freedom of speech and expression (that includes the freedom to profess to one’s own religion as freedom of expression etc.)? Is there any hierarchy among many form of freedoms of speech and expression? Can “progressive” thought eradicate or remove every piece of legislation which mentions reasonable restrictions? Even if it becomes able to do so in form, it can never do in spirit, for sure. Conclusion: if collective interest is not observed, it will lead to such a chaos that would be unmanageable. No freedom and progress can be achieved and realized without reasonable restrictions on fundamental rights. Moreover, these so called progressive thoughts appear "progressive less" but "regressive more". This whole ideological deed is indeed a journey from misunderstanding to misdeeds. "Let’s wait and watch", is good idea?
Meraj Ahmad
